TEXT OF DECISION
IN FISH TRAP CASE
A cop? of the decision rendered by
Judge Brown is the case tried before
htan at the recent tens of court- was
re reived by the defendant in the suit,
and as it is of special importance to
every resident of Ketchikan, and fish
ermen in the vicinity, it is herewith
reproduced:
in t~e Dat- tt Cc-i fo" trs Terr
tc-y ef A ss*.a
D \ s ;r N_ —re- Cre. atVetc- sa
Xocthwestern Fisheries Company, a
Corporation. Plaintiff vs- SpencerVan
Zandt, Defendant.
No. Hi? K A
DECISION
This is a contest over a nsi trap
site in the waters of Dixon s entrance-.
Alaska. There is little dispute as to
the facts. The plaintiff company
caused sotm4ir.Es to be- made at this
site in the years 1 r 14 and ItSe. They
posted, notices -cm the shot: oo May
11*75 sn4 biased a tree- and carved
thereon N W F. Co. Trap No. t They
recorded their notices «-:tn the ceo
nissksner of the Ketchikan precinct
34a? If. IMS. About tie middle of
Jane they drove seven piles. Plain
tiff * testimony shews that oc account
of stormy weather and the fact that
the nsh began to ran earlier than ns
ual. they were ana hie to complete said ,
trap for the f.shicg sessc-n of IMF On
the third of Jam. 1 .-If ffsh trap li
cense Na tJT was issued to plaintiff
company by tie treasurer of the Ter
ritory of Alaska, under the provisions
of Chapter 7i Session Laws of Alaska ■
Xfli
ftmli license pre-rides—
-That this license shall not be
takes as permission to construct
and operate such nsh trap with
out having complied with the
other requirements of the laws
of the Territory of of the Cnited
States.”
Cm Jancary It XM4 there vss is
sued to plaintiff company a permit
by the War Department under the
provision of section It* cf the River
d Harbor Act. a fproved March 3.
T.-:- to construct and maintain a disk
trap under said territorial fshint II
ense .1' Saif permit trim the
War Department contains the folic-w
ing provision:
‘That this authority does not
give any property rights either
in real estate nr material, or any
exclusive privileges: and that it
does not authorize any henry to
private property or invasion of
private right- or any infringe
men: of F-ceral. Territorial or
local laws or regulations, nor
doss it obviate the necessity of
-obtaining Territorial assent to
the week authorize*.- tl mere
ly expresses the assent of tie
Federal government so far as
concerns the public rights of nav
igation
Plaintiff's witnesses also testified
that during tie year ISIS they “made
up' the webbing for this trap and got
■t .* piling an: extended about %.l
in preparing to construct said trap.
Defendant's testimony shows that
about January .7. 1S14 defendant's
employees went to this site, construc
ted a cabin on the shore, put up two
pests on the teach and a notice on
the comer of the cabin claiming this
site and anchored three p:>s seven
to eight inches in diameter at the
but and 3ft to i i feet long an d anchor
ed in six or seven fathoms of water
with a cable fastened to reeks weigh
ing 1-Vi to 1 ” pound s.
Tne testimony is somewhat coa
Sictimg as to what became of these
anchored piles, defendant claiming
that they had disappeared fey April
fra by reason of the action of the
sea. Defendant recorded his notice
of location January Stfa. The testi
mony of plaintiff and defendant seems
to agree that of the piles driven by
plaint;3 company in she summer of
IMS but on* pile as Soft in January
IMS. On Obnscty 5th there w*f is
sued to defendant sis trap I-icons* No.
2*5 for trap design a!ed as V £P Trap
Na One. claimed -y defendant to be
on the same site as :fc< site ciaiv.v.d
by plaintiff.
Defendant appll d to the Chief of
Engine-.-:s of the 1'. 5 War Depart
strM. Seattle. W • shiagt..-. on Feb
rcary £4. IMS for a persist, to cons
truct a f.sh trap it; Alaska, claimed to
be on the sit* in controversy and en
closed a receipt treat the Treasurer
of Alaska for for the payment of
the territorial license above men*.kti
ed. Is is not known that the defen
dant ever received such a permit front
the War Depaitm rt.
This action was begun by the- filing
of a complaint in the Clerk's office on
the Sis; of January lMf. On the
firs: day of Febre..ry a temporary re
stralntitg order •• as issued by the
Court, restraining the defendant Crons
entering upon, onstructlng. train
mining or oomph ting any work on
flab trap location claim by plaintiff
Tie summons sac complaint in this
action, together with said restraining
order, was served on she defendant
February Z IMA There is no *-• i
dence shat the defendant ever actual
ly commenced the conssrECtion of
any fish trap. The testimony shows
that the plaintiff did commence the
coastractise of its trap about April
1. 'HI and has same practically com
pleted.
There is so status* defining how
fish trap sites shall be located, neith
er is there any eastern cone-ruing
the"sjusse alleged or proved, although
both parties seem to have proceeded
upon the theory that the posting and
recording of location notices was se
res sary '■? give -hem a right to the "o
tarl-tn.
The location of fish traps is Alas
kan waters is authorized by the Act
npress '
piled Laws of Alaska. Section ifi
which provides that no fish trap tr
fixed fishing appliance shall be can
sirtsc-ted within yards laterally
or within 1W yards endwise of any
--(tier trap c-r fixed fishing appliance.
This together with the T-rrit: ri.fi
act and the River a: Hart*;-r Act above
mentioned, seems to recognize the
right to c-.-n struct and maintain such
fish traps Neither the territorial
license nor the War Department per
mit. however, assumed to con fer any
right -- particular . up c-r
the licensee or any property right,
but on the contrary expressly dis
claimed any such intention.
It appears that a license was issued
by the Territorial Treasurer to both
plaintiff and defendant and it may
well be that a similar license would
have been issued to a dozen more ap
plicants had they applied. It is not
shown that the territorial treasurer
is require . to keep a record of actual
surveys ■ similar to the records kept
by a a tryeyor-General of a state c-r
territory . The description of the
site in these applications .: iff-rest
persons, as in these cases, are w :-ded
differently and It does tsc-t seem that
an officer issuing the license is caked
upon to take any steps to identify the
site, or refuse the issuance to ar.y
person, even though a comparison
might show the. two licenses to cover
practically the same site. The same
is tree of the War Department per
mit. the only purpose thereof being
to see that structures are net erected
interfering with navigation. Neither
tie Territory nor the Federal Govern
ment by issuing the permits guaran
tee's to the recipient any property
right to any particular location: that
tie applicant must look after himself.
These traps being located in pab'sic
waters, generally ar. a depth of 7 to
v> tet there can be no rested right
or title accaired to any location. The
right i.s a mere permissive one and
assy be revoked by the United States
resume Its possession and control
over said site It is similar to the
possessory right by those who put
st'mv tares on tide lands or shore
hinds o; the Territory,
the title thereto remaining
in the i'aited States and the possess
r r ?fi : of she one erecting any
v.vtnre thereon depends upon the
.. physical possession, use and oc
cupation thereof The first one to en
ter anti actually take such physical
and occupy the particular
. > better right. In initiating ti..:
tight, he st put such a substantia
structure thereon as shows a fcona
fide .Mention to snake some benefic
;.! use thereof and then proceed with
due diligence to the completion o;
.? s; • . 7 The putting of ilo
::vs t - cts or some unsubstantial
signs or evidence of ‘intent" to oc
cupy the same will not avail as ..
gs.-.r.st o: '-»ho in good faith enters
upon a7.i erects a substantial struc
ture thereon.
in acquiring possessory rights c
this character the cases sometime .
refer t it as a "scrambling" posses
sion the first one to become er:t r
f-d and established in p-xles pc--set
si.:. it'.g the prior and better r._
: r. be true that there should be
sent-. - ..fiattry enactment regulating
the method of giving notice, but the
driving of one or more piles and giv
ing notice thereon, which would tend
to sveid any conflict or strife over
:• -. -- r - * c of the site sought to
- taken and occupied and give a rea
- ...7 • tit • to begin atsd complete
the trap, but this court has no legis
ative power and to hold that any
7. cl the acts of either party as ap
yirjg : r a territorial license, or for
. War ,. Ttment permit, or putting
.7 anchoring some object
the water, which way be washed
away by *fce first storm—r© hold that
such acts give a prior right would
- it a premium on speculative loca
tions and lead to more fruitless liti
gation and it would seem preferable
to relegate parties to their present
method of going upon and actual!:
: ttpy.r.g a site with a substantial
structure.
The state of Washington, owing t y
the growth and development of the
fishing industry in Its waters, found
it necessary to enact a statute iSes
'i-:n ♦Laws of Washington, 1$K*. p
. 1-3 providing that a person obtain
ing a fish Hc-ense shall indicate loca
tions of traps by driving at least
three substantial piles thereon, upon
rich must be posted the license
it is -veil known among the sen en
gaged in that industry that there ar-:
. .any sites which would be desirable
tar c-c-.-Tiering ash traps were it no:
for the fact that the rocky bottom
renders it impossible to drive piling.
The one therefore attempting to lo
cate such a site, without first ascer
taining its practicability in this re
gard would seem to be making a mere
speculative location. That the ac
tual driving of a piling would be the
first an ! most important act in sho v
ing the good faith of the parties claim
ing the tie. after receiving a permit
from the War Department so to do.
Both plaintiff and defendant had a
right to enter upon and actually oc
c :py the said site. Nei'fcer one has
she right to enjoin the other from
p-roce-eding so to do. The first one
aerially to begin such work and pro
it with reasonable diligent
eight to hare the better right. It
follows therefore that the injunction
should be dissolved" and the plaintiff s
complain* dismissed. Findings and
decree may be entered accordingly
J7ineat'. Jtne Z, 11-16.
-«
Job work neatly and promptly done
- - - printers.
ATTENTION EVERYBODY
Show yonr patriotism by taking in
the Flag Day Dar.ee given by th<
Lady-Eagi-s at the Skating Rink Sat
urday. June 10.
Everybody come and fernig your big
-.•-.tie cf anti'.ration of the good »lir.«■
you will have. Gentlemen $1.00.
Ladies free. adv. St.
NEW VAN IN CHARGE
J. E. Johnson, who arrived recently
from Seattle has been glv :i charge of
the down town office of the Marconi
Wireless and is giving entire satis
faction to ail concerned.:
ARCTIC BROTHERS
• AT HOME" TONIGHT
Invitations are out for an informal
reception to be hold this evening by
ti e Arctic Brotherhood for their fam
ilies and visiting members. The jol
lification will he in the nature of a
house warming, their new home now
being Quite completed and as cosov
us any one couid wish. There will
be music and dancing, also a lunch
will be served, and it is understood
[the program has other surprises in.
store
-♦
MR. BOYLE OF HADLEY
IN TOWN ON BUSINESS
Mr. Boyles of the, firm of Boyles j
Brothers, of Spokane. Wash., who
came sometime ago for the purpose j
of operating diamond drills for the
Granby Smelting a. Mining Company,
at Hadley, was in town today on busi-:
ness- The firm is now operating two i
diamond drills in the Mamie mine |
with unusual success.
-4
THE CIVIC CLUB SOLICITIOUS
..The Civic Club desires those who
use the tables in the park on the
creek to kindly burn their garbage.
It is not only unsightly but it is food
for flies, and we would "swat the fly."
A'so to build fire on the beach near
the creek and not on the park ground.
CIVIC CLUB
-«.
Among the prominent passengers
on the Watson this morning and who
visited the Progressive-Miner office,
was Mrs. Wright, who is on her way
to Seward. Mrs Wright was former
ly Mrs. U M. McDonald, lived in
Nome in the early days of that camp:
was employed on Governor Strong's
newspaper at the time and was in
the newspaper business for years.
Mrs. Wright admitted that she could
not pa-« a printing office without
looking in.
-<*
The Daily Progressive-Miner is for
sale at both the Walker Drug store
and the Hyus Drug Sore.
INSANE PRISONER TRIES TO GO
BACK TO ASYLUM
SEATTLE. June 5.—C. Myers, con
fined in the United States penientia
ry at McXiels Island since April 26 on
a 5 year sentence, has asked for a re
commitment to Morningside sanitar
ium. for insane, from which he as
serts he is a fugitive.
The appeal for recommitment to
the sanitarium is contained in a pro
perly drawn application for a writ of
habeas corpus mailed to federal Jud
ge E. E Cushman today. The writ
was gran'ed by Judge Cushman, re
turnable June 12 and Van M. Dowd
appointed his attorney.
Myers alleged that he was adjuged
insane at Fort Gibbons. Tannana. Al
aska. Xov. 21, 1914. and in March 1915
was admitted to the Morningside
sanitarium in Oregon. He escaped
from the sanitarium and went to
Eagle, Alaska, where he was arrested
on an Indictment charging that he
obtained goods and money by false
pretenses, for which on Feb. 19 he
was given 18 months cn two charges
each, and two years on a third, he
says. He also maintains that the
indictment was not in compliance
with the laws of Alaska and that the
court was without jurisdiction. He
says he was insane at the time other
alleged crimes were committed.
He prays that an order be forwith
issued ‘restoring the petitioner to the
custody of the Morningside sanitar
ium there to remain and be detained
until by proper examination, order,
dismissal or legal discharge be pro
nounced of sane and sound mind.”—
Tacoma Daily News.
SWAT THE ELY
Y'.o season is here when the house
wife declares war on the house-fly.
This summer post is a menace to
health ns well as an annoyance.
May we as» that the businessmen
help by eliminating possible breeding
pUccs.’ Vi the owners of restau
rants, meat markets, merchants hand
ling fruit, fish houses, and stables pro
tide forth* dumping of refuse Into
deep water.
CIVIC CLUB
-0
ADVERTISED LETTER LIST
of the Ketchikan, Alaska, Tost Office,
'.■'or the week ending June 3. 1916.
Brodie. Charles.
Duran. Rosalie.
ii-'sse, Wm.
Marshall. Mrs. A. D.
Martni, S. K.
Parks. 0. H.
Porter. Gen.
Ratckovltcto, Pete.
Skotheim, Capt, John.
rimer, Joe.
Walters. E. F.
Washburn. Mrs. Martha.
When calling for the above, say
••Advertised." Parties claiming let
t from the above list must pay a
fee of one cent for each letter claim
ed. All letters unclaimed by June
IT. 1916 will be sent to the Dead
Letter Office. Washington. D. C.
SUMMONS.
No. 259 K. A.
James Leask. Plaintiff. )
vs- )
Flora Leask. Defendant. )
To Flora Leask, Defendant. Greet
ing:
In the name of the L'nited States
of America, you are hereby com
manded to be and appear in the
above entitled Court holden at Ket
chikan. in said Division No. One of
said District and answer the com
plaint filed against you in the above
entitled action within thirty days
from date of the service of this
summons and a copy of said com
plaint upon you, and. if you fail
so to appear and answer them as
thereof the plaintiff will apply to
the Court for relief demanded in
said complaint which is served
herewith. This suit is brought to
obtain a dissolution of the marital
ties now existing between said
plaintiff and said defendant. Order
for publication of summons dated
the 13.h day of April, directs the
publication of summons in the Pro
gressive-Miner. a daily newspaper,
published at Ketchikan, Alaska, for
the statutory period- Date of first
publication is May 8th. 1916, and
date of last publication is June 12,
1916. Said defendant is required
to answer the said complaint within
thirty days from said date of said
Isat publication.
And you, the United States Mar
shal of Division No. One of the
District of Alaska, or any deputy,
are hereby required to make ser
vice of this summons upon the
said defendant, and each of them
as plaintiff will require, and you
will make return- hereof to the
Clerk of this Court within forty
days from date of delivery to you
with an indorsement thereon of
your doings
Witness the Honorable B. W. Jen
nings, judge of said Court, with the
seal thereof, this 4th day of May,
1916. J- W. BELL,
Clerk
By E. S. STACKPOLE,
Deputy Clerk
Ingersoll & Warder,
Attorneys for Plaintiff
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+ KAZIS KRAUCZUNAS +
Jf Attorney-at-Law +
+ 403 Lyon Bldg., - Seattle. +
+ +
+ ♦ + + + + + + + + ■*• + + + +
.. . - -.— --.
Vui yourself
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Strong Stove Company, Ketchikan
j TO-NIGHT! ;|
At the GRAND
I Friday and Saturday, June 9 -10 I
The ..aster Key
;; EPISOiE No. 12 ;
S* Surprisingly beautiful scenery in this two 1
reels. As we follow D«re in his search for the |
idol in which the secret of the Master Key mine |
is hidden . Van Wijk Hotel in Bombay, India, |
|j Chineae and Hindu ! heatres. S he great Indian ;
| Temple Taj Mahal with it’s marble fountains
Sand dozens' of domed spires. All these with
many others are shown while the story of this |
thrilling seriel is being told. |
| Uncle Sam’s Phenominal Achievement |
Or The
j First Trip Through The Panama Canal 8
With plenty of good titles telling how the |
| work is accomplished followed by some wonder- |
| ful scenes makes an interesting picture.
I School Days 8
With MAX ASHER and GALE HENRY
" A comedy for laughing purposes only.
Sunday: Theda Bara, in “Lady Audley s
Secret” in Five Reels.
«/-‘
S Columbia
of •JTX Double-Disc «
| Records
f i
| Fit your machine
1
| WALKER DRUG COMPANY
P
BELL ISLAND -
HOT SPRINGS
Forty-five niiio? north of Ketchi
kan- Clean cabins, equipped for
light housekeeping- Reasonable rent
ed- Meals served if required- Week
ly boat service from William's dock,
Ketchikan.
MRS, HOUTS, Manager in charge
MARY A- C GIB SON
•Stenographer
Notary Public
OF KICKS
—Newtown Horne—
Phone 142
Phone lf>6. First-Class Work
F. MILLER
Painting, Kalaomining, Paperhanging
and Graining a Specialty.
KETCHIKAN, : : ALASKA
KETCHIKAN
PUBLIC LIBRARY AND
FREE READING ROOM
10 A. M. to 10 P. M.
MRS. J. B. THOMPSON
Librarian
KETCHIKAN CIVIC CLUB
-Meets every first and third Tues
day evening at 3 p rr. , at the Coun
cil Chambers, All women interest
ed in the welfare of our city are
cordially invited to attend-—Sec- B- .
P. Dickinson, 21 D- Q
—f33C&33£eg
I YOU’RE SAFE IN BUYING |
E AMERICAN LADY CORSETS g
You may think one corset looks g
I as good as another—it may— g
» but perhaps the value isn’t g
► there. A good reason why it
\ is safe to buy AMERICAN 22
L A I) Y C O R S E T S. They’ve g
stood the test — they’re good 22
through and through—the de- g
[ signs are advocated and authcn- g
tic. The materials are always w
the best for wearing the long- |
est, and as for fitting qualities, 22
American Lady Corsets lead. u
WE NOW HAVE 32
• A FULL LINE IN g
STOCK. g
STOCK J. R. HECKMAN & CO. SERVICE n
The Department Store j [
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