Heckman v. Swett

Fisheries — Eel River—Change in Channel—Low-water Mark— Exclusive Right to Fish from Island—Injunction.—Under the act of 1859, which gives to the owners ofl lands fronting on Eel river the exclusive right and privilege of casting, hauling, and landing seines and nets on their own water-front, and provides that all 1 ‘ bars and the bed of said river lying between the lines of the official survey and extreme low-water mark shall he deemed and held to be the waterfront of the landowner whose lines border on said river, or run nearest thereto,” where it appears that the channel of the river has been changed, so that at low tide the bed of the old channel is dry in places between an island and the plaintiff’s land, and the new channel is on the south side of the island, leaving the low-water mark on that side of the island, and leaving the island and the old channel of the river above low-water mark, the owner of the land bordering on the south side of the river is entitled to the exclusive right of casting nets and seines for salmon on the south side of the island in front of his lands, and may enjoin the owners of the land on the north side of the river from interfering therewith or making claim thereto.

Id.—Right of State to Regulate Fisheries.—The state, by virtue of its sovereignty, has authority to regulate fisheries within its borders, and may prescribe the places as well as the times in which fish may be taken, and. may make exclusive grants of fisheries in designated waters, so far as the same do not impair private rights already vested.

Id.—Act Regulating Salmon Fisheries not Repealed bt Penal Code. The provisions of the act of 1859, to regulate salmon fisheries on Eel river, are not repealed by sections 634 to 636 of the Penal Code; but those sections are merely intended to regulate the times and mode of catching salmon; and within the times and mode thus prescribed, the owners of the land fronting on Eel river may still exercise the right of catching salmon conferred upon them by the act of 1859.

Id.—Right Limited to Salmon Fisheries—Modification of Judgment. The act of 1859 purports to confer a right of action in favor of owners of lands fronting on Eel river, only against those who shall cast, haul, or land any seine or net in Eel river for the purpose of catching salmon; and a judgment giving to a plaintiff the exclusive right of casting nets in Eel river, irrespective of the purpose for which they are cast, and enjoining the defendants from casting any nets in the waters fronting upon the plaintiff’s land, is broader than is justified by the statute, and should be limited to casting nets for th# purpose of catching salmon.