Opinion
No. 581-A.
July 13, 1927.
Donohoe Dimond, of Valdez, for plaintiff.
L.V. Ray, of Seward, and J.S. Truitt, of Anchorage, for defendants.
The defendant Smith acquired no right of fishery by reason of any homestead location he may have made. Columbia Canning Co. v. Hampton (C.C.A.) 161 F. 60; Columbia Salmon Co. v. Berg, 5 Alaska, 538. And he acquired no right to fish a particular spot, merely because of the permit granted him by the War Department, or his territorial license. Thlinket Packing Co. v. Harris Co., 5 Alaska, 471.
The defendant Smith testified truthfully, I believe, that in March, 1927, with intention to commence a trap for 1927 fishing, he did some work on shore and two days' work, more or less, straightening up old stakes that had not been entirely ground off by the ice during the previous winter; but it is undisputed that, when he did that work, appropriation of the waters of Cook Inlet, where such stakes were situated, was prohibited by the Department of Commerce regulation of February 17, 1927, relating to fisheries in Alaska, which will hereafter be referred to as the "withdrawal order," prohibiting the use of traps for the capture of salmon within two miles of the mouth of Chuit river. I think the withdrawal order foreclosed and shut off all rights to fish those waters defendant Smith may have had theretofore by reason of occupation in 1926, and that upon the modification of that order on May 4, 1927, if he wished to establish a trap at his proposed location, he had to initiate a new right by appropriation; and if, therefore, in attempting to initiate such a right, he placed his trap within the prohibited distance from another trap lawfully constructed, he was violating the law (Canoe-Pass Packing Co. v. United States [C.C.A.] 270 F. 533), and should be restrained from fishing same to the injury of such lawful trap (Harris Co. v. Thlinket Packing Co., 5 Alaska, 493). It is undisputed that defendant's trap is within 2,500 feet of plaintiff's trap.
I find no reason to hold the plaintiff's trap unlawful. The evidence shows that it was at the site of its trap, and actively engaged in constructing it, and had it well under way before the defendant Smith had taken any steps at the site of his trap to erect a trap. There is evidence tending to show that on the 5th or 6th day of May, 1927, defendant Smith knew of the change made May 4th in the withdrawal order, by which the two-mile limit from the mouth of Chuit river was reduced to one mile. Had he at once commenced work on a trap at the point where he now is, he could have forestalled the plaintiff, who did not commence until the morning of May 7th. The defendant would not have been required to first complete his trap; but it seems to me plain that he was required to first commence it, and thereafter to proceed with reasonable diligence to complete it, in order to appropriate that fishing site. Failing in this, he acquired no rights.
Upon the plaintiff filing a bond in the sum of $5,000, it may have an injunction pendente lite as indicated above.