Gile v. Hoy

PER CURIAM.

The plaintiff applies for a writ of mandamus requiring the defendant to issue a license or licenses authorizing her to operate certain fish traps in the waters of Columbia river. Attorney General I. H. Van Winkle and Mr. Jay Bowerman appeared informally and objected to the issuance of the writ. It is apparent that the propriety of issuing this writ will depend upon whether the proposed location of the traps is in Oregon or Washington. If the location is in Oregon, the plaintiff would be entitled to have the license issued. If in Washington, the defendant would have no right to issue such license. Hitherto, licenses have been issued on the theory that the location was in Oregon. At present, it is plain that this is a doubtful question, which will require an extensive investigation and the taking of much testimony in regard to the location of channels and other matters of like nature. This can be more easily and expeditiously done in the circuit court for Clatsop county than in this court, which is ill prepared to lay aside its usual business and go into a case which mil evidently consume much time.

The principal reason, or at least one of the reasons urged here, is that if the plaintiff does not keep the ground and construct a trap seasonably, her right will be forfeited, but so long as she keeps a tender and application seasonably standing we do not think that this enforced failure to build a trap within the time prescribed by law will operate to deprive her of her right, or will be deemed an abandonment thereof.

For these reasons, we decline to take jurisdiction at this time, assuming that the master fish warden, in the present condition of things, will not attempt to issue licenses to other persons.

The application is denied for the present without prejudice.