Bowles v. Kinney

NETERER, District Judge (after stating the facts as above). [1] For the purposes of this decision, all of the facts well pleaded are admitted. From this admission it appears that the plaintiffs, though interested severally in the several tracts set out, have a common right to use the stream throughout its course over the several tracts of land described as a “common fishing preserve.” It thus appears that the several plaintiffs have rights which depend upon the same questions of fact and law, and have a community of interest growing out of the nature and condition of the right in dispute. Cutting v. Gilbert, 6 Fed. Cas. 1079, No. 3,519, 5 Blatchf. 259. It likewise appears that there is a confederation of the defendants with relation to the fishing [422] rights in the stream running through, over, and upon the lands of the plaintiffs, and it is likewise admitted that this stream is a nonnavigable stream. [2] It has been uniformly held by the Supreme Court of the state of Washington that a raparían proprietor upon the banks of a non-navigable fresh-water stream owns the exclusive right of fishery in the water flowing through, over, and upon his land. Griffith v. Holman, 23 Wash. 347, 63 Pac. 239, 54 L. R. A. 178, 83 Am. St. Rep. 821. The holding of the Washington court is a declaration of the law as generally applied. Phila. Co. v. Stimson, 223 U. S. 605, 32 Sup. Ct. 340, 56 L. Ed. 570; Hartman v. Tresise, 36 Colo. 146, 84 Pac. 685, 4 L. R. A. (N. S.) 872; Rockefeller v. Lamora, 186 N. Y. 567, 79 N. E. 1115; People v. T. Lumber Co., 116 Cal. 397, 48 Pac. 374, 39 L. R. A. 581, 58 Am. St. Rep. 183; State v. Mallory, 73 Ark. 238, 83 S. W. 995, 67 L. R. A. 773, 3 Ann. Cas. 852. Circuit Judge Putnam, in Percy S. Club v. Astle (C. C.) 145 Fed. 53, enters upon an elaborate discussion of these rights, and he states that there is no question but that individuals may acquire title to the bed of nonnavigable rivers- and to the beds of ponds and lakes, and that when acquired the rights of fishery follows, and this is merely the declaration of the law as generally understood and -applied. [3] The Circuit Court of Appeals of the First Circuit, in Percy S. Club, supra, 163 Fed. 1, 90 C. C. A. 527, affirmed this decision, and held that a party having the exclusive right of fishing may maintain a suit in equity to protect such rights by enjoining others from fishing therein, who claim, the right as members of the general public, and committing trespass on the complainants’ shore property,- which is only incidental to such fishing. The court, however, holds that, apart from the fishery, the interference with the complainants by trespassing upon the land bordering on the water does not warrant the interposition of a court of equity. [4] Section 5925, Rem. Comp. Stat., provides in substance that, whenever the chief game warden, or county game wardens of their respective counties, shall consider it necessary to protect the game fishes, any stream may be closed to such fishing to such time and manner as may be declared, and then provides how it may be done. The Supreme Court of Washington, in Cawsey v. Brickey, 82 Wash. 653, 144 Pac. 938, and Vail v. Seaborg, 120 Wash. 126, 207 Pac. 15, and other cases, has held that this section is not a delegation of legislative power; that the function of these officers has a dual relation. It is a discretionary power. It partakes of the legislative, until the discretiopary is exercised, when it becomes executive, and, so long as the discretion is open, equity may not interfere. Lane v. Anderson (C. C.) 67 Fed. 563. And this, I think, is the uniform holding of the courts, McChord v. L. R. Co., 183 U. S. 483, 22 Sup. Ct. 165, 46 L. Ed. 289; Louisiana v. McAdoo, 234 U. S. 627, 34 Sup. Ct. 938, 58 L. Ed. 1506: Dalton Co. v. Corporation Commission of Virginia, 236 U. S. 699, 35 Sup. Ct. 480, 59 L. Ed. 797. 7. Upon the bill of complaint, under the motion to dismiss, I think the restraining order should-issue enjoining the defendants from tearing [423] down trespass signs, and from threatening and intimidating the watchmen, and from advising parties to enter upon the land and fishing in the stream. I do not think that the court should at this time enjoin the defendants from promulgation of the order by the game commission or supervisor of game and fish, for the reason that, until the discretion lodged is exercised, the court should not interfere, and, if the defendants should proceed and unlawfully interfere with the rights of the plaintiffs, as given by the law and guaranteed by the Constitution, the court is open to the complainants for such remedies as may be available. The motion to dismiss is denied, and an order may be presented in accordance herewith.