Opinion
No. 21610. Department One.
May 9, 1929.
APPEAL (492) — DECISION — MANDATE AND PROCEEDINGS IN LOWER COURT. A lessee from the state, entering into possession of a fishing location pending an appeal from a judgment denying injunction against such leases, will, on reversal of the judgment, be enjoined from interfering with plaintiff's rights.
JUDGMENT (229) — CONCLUSIVENESS — CAUSES THAT COULD NOT HAVE BEEN LITIGATED. Participation in a companion case seeking injunctive relief, which was finally granted, is not res adjudicata as to plaintiff's claim for damages, not tried in the companion case.
Appeal from a judgment of the superior court for Pacific county, McKenney, J., entered July 14, 1928, upon findings in favor of the defendants, in an action for injunctive relief, tried to the court. Reversed.
Welsh Welsh, for appellant.
Kelly MacMahon and G.C. A.C. Fulton, for respondent.
The Attorney General, L.B. Donley and E.W. Anderson, Assistants, for intervener, respondent.
This is a companion case to that of Williams Fishing Co. v. Savidge, ante p. 165, 277 P. 459, just decided, and, in its main features, is controlled thereby.
[1] Respondent Bakers Bay Fish Company is the lessee from the state of the lands described in the former opinion under a lease issued after the judgment of dismissal below, and appears to have entered into possession pending the appeal in the former case and interfered with appellant's use of what we have just held to be a public highway, in drawing and landing its drag seines from its fishing locations in adjacent waters and in transporting its fish by wagon from the landing place to a point where boats could land.
Undoubtedly, therefore, appellant is entitled to an injunction restraining the respondent from interfering with his fishing locations and his legitimate use of the highway and respondent is not entitled to the injunction granted to it by the trial court.
[2] Appellant also, in this action, sought the recovery of damages in a large amount because of acts already done, and much of his offered evidence on that issue was rejected or stricken upon the theory that the former case, because of its being brought on behalf of all similarly situated, and because appellant participated in the trial thereof, was res judicata as to him. Of course the trial court having so ruled, respondent made no attempt to meet the issue as to damages.
Since the former case has been reversed, the question of res judicata is now unimportant and need not be discussed, nor can we further consider the damage issue in the light of the present record.
The judgment appealed from is reversed, with instructions to grant injunctive relief as herein indicated, and to grant a new trial on the damage issue.
HOLCOMB and BEALS, JJ., concur.
For the reasons stated in my dissent to the case of Williams Fishing Co. v. Savidge, ante p. 165, 277 P. 459, I dissent from the conclusion reached in this case.