Powell v. G. W. Hume Co. , 6 Alaska 486 ( 1922 )

REED, District Judge.

The defendant claims that the foregoing allegations are not sufficient to show actionable negligence. While the complaint has much detail and evidentiary matter not necessary to it, and the facts showing the negligence could perhaps be more pertinently put, the complaint shows negligence in the construction and maintenance of the trap as constructed. If morp specific detail as to what the negligence complained of is necessary to enable the defendant to make his defense, it was within the power of the defendant to have the complaint made more definite and certain, or move for a bill of particulars.

The act of Congress of March 3, 1899, c. 425, § 10 (30 Stat. p. 1151; U. S. Comp. St. § 9910) provides, among other things:

“That the creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is hereby prohibited; and it shall not be lawful to, build or commence the building of any wharf, pier, dolphin, boom, wier, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the Chief of Engineers, and authorized by the Secretary of War.”

The complaint, in paragraphs 2 and 5, alleges that the fish trap was constructed in the navigable waters of the United States, extending at right angles from the shore thereof, without affirmative authority from Congress, or any authority, and that the same was negligently and recklessly maintained oh the 22d day of October, 1920. This allegation is sufficient to bring the construction and maintenance of the structure within the prohibition of the act of Congress aforesaid, unless it was within established harbor lines. This exception is a matter of defense. The erection and maintenance of the structure, being a malum prohibitum, is prima facie negligence, and if the defendant received special damages, due to the erection and maintenance of such structure, he has a right of action. This is sufficiently shown in the complaint.

The demurrer will therefore be overruled, e

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