Johnson v. Jeldness

Mr. Justice Burnett

delivered the opinion of the court.

1-3. Quoting from their brief, the defendants contend that

“the title to plaintiff’s tide-land came to him from the state, impressed with the jus publicum or public ownership, which was retained by the state, and which includes the public rights of navigation and fishery. ’ ’

This is very true as a major premise: Bowlby v. Shively, 22 Or. 410 ( 30 Pac. 154 ); Hume v. Rogue River Packing Co., 51 Or. 237 ( 83 Pac. 391 , 92 Pac. 1065 , 96 Pac. 865 , 131 Am. St. Rep. 732 , 31 L. R. A. (N. S.) 396); Corvallis & Eastern R. Co. v. Benson, 61 Or. 359 ( 121 Pac. 418 ). The fallacy of their argument is the assumption that they are operating in the right of the public, when in truth they are operating for their private interests to the exclusion of all other members of the public. In so doing they interfere materially with the plaintiff’s right of access to his land. The defendants cannot act under the sanction of the jus publicum or common right so as to exclude any other member of the public from the general privilege of fishing and navigation in the navigable waters under consideration. To allow them to drive rows of piles in front of the plaintiff’s lands would be seriously to impair his right as a member of the public to seine *660 for fish there, and this, being coupled with his exclusive right to draw his seine upon the shores of his premises with which the fixed apparatus of the defendants would interfere, he has a right to resist their encroachment and to secure a permanent injunction against the same as for a. continued trespass. In this invasion of his right of access to his property for all lawful purposes to which it may be devoted he suffers an injury not experienced by the public generally and so has standing in court to secure its prevention. If the property of the plaintiff or its appurtenances could lawfully be parceled out among other individuals without his consent or if, assuming to act under the common right of fishery, the defendants could exclude others from that privilege, their acts in question might be justified; otherwise not. The plaintiff’s right of access attaches equally to the whole and every part of his shore line. The defendants have no right to fetter or impair his enjoyment of his property by compelling him to go upon it only at certain points. To allow them to maintain piling or other fixed appliances of the kind in front of his premises would be to establish a monopoly to that extent in their favor and to his special detriment. It would permit them to say to him: “You may fish where you can or how you can, so far as we have left you opportunity, and you may take your' fish ashore on your premises at places only which we have left open.” The defendants cannot lawfully subvert the exercise of the common right of fishery to their exclusive personal benefit, especially where it works peculiar harm to the plaintiff in the beneficial use of his holdings.

4. Section 2 of the act of Congress, approved February 14, 1859, admitting the State of Oregon into the Union, reads thus:

*661 “The said State of Oregon shall have concurrent jurisdiction on the Columbia and all other rivers and waters bordering on the said State of Oregon, so far as the same shall form a common boundary to said state, and other state or states now or hereafter to be formed or bounded by the same; and said rivers and waters,' and all the navigable waters of said state, shall be common highways and forever free, as well as to the inhabitants of said state as to all other citizens of the United States, without any tax, duty, impost, or toll therefor.”

This section is declarative and preservative of the jus. publicum including the public right of navigation and fishery. The plaintiff is a freeholder whose close abuts upon this ¿ighway and resting upon his private right of access thereto he is entitled to the aid of the courts to maintain the freedom of it against invasion by private persons in their own interest: Sandstrom v. Oregon, Wash. R. & Nav. Co., 75 Or. 159 ( 146 Pac. 803 ). It is not a case of taking his property or its appurtenances for public use by the right of eminent domain as in spanning a navigable stream by a public bridge, extending harbor lines, and the like. It is an instance of an attempt to take private property for the use and benefit of other individuals in whom the sanction of eminent domain is not vested. Except that the plaintiff suffers peculiar injury not experienced by the people in general, the threatened encroachment of the defendants upon the freedom of navigation and fishery, designed to create a monopoly for themselves, would normally fall within the federal enactments for the protection of the use of public waters and his suit could not be entertained in the state courts. Inasmuch, however, as his private right is violated by private persons in their own interest the judicial power of the state will grant appropriate relief.

*662 The principles applicable to the instant case are so thoroughly expounded by Mr. Justice Moobe in Eagle Cliff Fishing Co. v. McGowan, 70 Or. 1 ( 137 Pac. 766 ), and by Mr. Justice Habéis in Monroe v. Withycombe, 84 Or. 328 ( 165 Pac. 227 ), that further comment is unnecessary. The decree of the Circuit Court is affirmed. Aeeibmed.

Mb. Chief Justice McBeide, Me. Justice Benson and Mb. Justice Habéis concur.