The law of fish traps
Since the new regulations require
that fish traps must be at least
one mile apart, many inquiries
have come to us regarding a
way to acquire or protect a trap
site.
The only way to protect a trap
site is to have a trap on the site.
In this case possession is 100 per
cent of the law.
“Do I need to have a territorial
trap license to hold my fish trap
site?”
No, you do not. The territorial
license is a mere business licen. e
just like a mercantile license oi
any other business license and hast
no other use.
In the case of the Columbia Sal
mon Co. vs. Berg (5 Alaska
Reports 538), the District Court
at Valdez, on August 26 decided
thus: “The possession of a terri
torial license to fish confers no
property right in the fish site
claimed. It merely authorizes the
holder to carry on the business
of catching or dealing in fi.-.h in
Alaska.’
In the case of the Thl'nket
Packing Co. v. Harris & Co. Judge
Jennings, on June 6, 1916, an
nounced the decision of the Dis
trict Court at Juneau in substance
as follows:
“Plaintiff bases its claim for an
injunction on the contention that
the territorial license — and the
act of Congress of June 26, 1906,
which prohibits the driving or
construction of any trap or other
fixed fishing appliance within 600
yards laterally or 100 yards end
wise of any trap- taken together
virtually confers an exclusive right
of fishery at the locus (place) in
question.
Let us examine this contention:
“As to the territorial license:
That license confers no right of
property. The act of the Legis
lature under which such licenses
are granted is nothing more nor
less than the imposition of a
license tax on persons engaged in
certain businesses, specifically (in
this case) the business of fishingr
by means of fish traps. It is only
when one engages in the business
of catching fish by means of the
fish trap that a license is required.
The territorial treasurer would
probably give as many licenses as
as there are people who offer to
pay for them. The territory does
not care where the business is
conducted, it is true that the act
requires the applicant to state
generally the place whore, but
that requirement manifestly is for
the mere purpose Of fixing a Way
to identify the license granted,
so that the license money may not
be collected twice from the same
person. There is no provision made
by that act, or by any other act,
whereby the officers of the terri
tory seregate the proposed fish
trap location from the public
domain, or keep any record of it
as muniment (stronghold) of title
or evidence of property /rights.
The act does not purpose to confer
any rights, nor does it pretend to
settle the conflicting claims of
private individuals to the same
piece of water, to be used for
fishing.
And so with the act of June
26t 1906. That was an at of
Congress, passed for the conserva
tion of the fish supply, and has
nothing to do with private rights.
It simply provides that no fish trap
shall be built within so many feet
of any fish trap; but, if two fish
traps are so built, the ACT DOES
NOT UNDERTAKE TO SAY
WHICH FISH TRAP IS LAWFUL
AND WHICH IS NOT. (Editorial
note; the present law— White
Fish Law— has not changed these
conditions and Judge Jennings’
rule applies). It may be true that
the owner of a lawful trap may
enjoin the building of another fish
trap (an unlawful one) within the
prohibited limits, on account of
some special injury which the build
ing of such trap will do to him,
but the owner of the first trap
cannot enjoin the building of the
second trap simply because the
latter is contrary to law, without
showing some special damage to
himself; for, if only a violation of
law is shown, and no special injury
is shown, t1 e prohibited trap would
be a public nuisance, and not a
private nuisance, and so not to be
abated at the suit of an individual.
“In the District of Alaska, out
side of the suits cited above there
is no statute on the subject of
fish traps or fishing; that is, there
is no statute indicating the method
by which fish trap sites can be
acquired, nor adjusting the relative
rights o£ fish trap owners. There
is, therefore, no law governing
this case, unless it be the law of
possession.
War Permits Not Applicable
“Defendants contend that some
peculiar equity or priority inures
to them by virtue of the fact that
their permit from the War Depart
ment antedates the War Department
permit issued to plaintiff. THIS
CONTENTION CANNOT BE SUS
TAlNED. It has been repeatedly
held by the courts that such permit
confers no right of property. This
act was passed in 1899, and is a
general act for all the navigable
waters in the United States. Its
object and purpose is to keep sUch
waters free from obstructions.
IT HAS NOTHING TO DO WITH
FISHING SITES OR TRAP LO'
CATIONS, EXCEPT INCIDEN
TALLY as they may interfere with
navigation. The very language of
the permit itself is to this effect:
“‘This authority does not
give any property rights,—
it merely expresses the assent
of federal government so far
as concerns the public rights
of navigation.’
“It is nothing more or less than
a simple statement, in substance
and effect, that the person having
the permit of the Secretary of War
may rest assured that the general
government wilj not! raise 'the
question that the structure which
he contemplates interfc^els with
navigation.
‘As there is no statute indicating
the method by which fish trap
sites in Alaska waters can be ac
quired, and no statute adjusting
the rightjs of fish trap owners
inter seso (r.mong themselves),
we are forced to inquire whether
there is any general principle of
law governing the case. We are
urged to hold that the law of pos
session applies, and that he who
Is prior in time should be adjudged
to be prior in right. No doubt that
principle is to be applied so far
as fish traps actually constructed
are concerned. - - - He is usin^
it for the purpose', for w’i^h it
is fit, and consequently he has a
superior right, because he is there
first. He has the right, because
he is in possession of and actually
using that particular area of water;
but this is far from saying that