Columbia River Fishermen's Protective Union v. City of St. Helens

ROSSMAN, J.

(dissenting). The complaint, I am satisfied, cannot support a decree awarding an injunction. Only the tenth, being the last of its paragraphs,

*667

mentions the appellants. Before giving attention to that paragraph note will be taken of the others. The first paragraph alleges that the Columbia River Fishermen’s Protective Union is a corporation; and the second, after averring that the members of that organization are interested in fishing, describes the purposes of the organization as the conservation, propagation and protection of salmon in the Columbia River. The third avers that the City of St. Helens, one of the three defendants, which, however, is not a respondent, empties sewage into the Columbia River, “thereby polluting said waters and destroying said waters for fish life. ’ ’ The fourth and fifth paragraphs, respectively, allege that the Fir Tex Insulating Board Company and the St. Helens Pulp & Paper Company, the other two defendants (respondents) deposit waste materials from their plants into the river. This waste material consists of “sulphate and sulphite, sewage and waste products, and waste matter such as minute fibers of pulp.” The sixth paragraph alleges that the foreign material deposited by the three defendants ruins the water “for fishing purposes” and that it destroys “fish and aquatic life.” This paragraph further avers that these materials destroy “the nets of plaintiff’s members by causing said nets to be rotted by the chemicals and foreign matter clinging to said nets.” After averring that the presence of these noxious matters in the water renders it impossible for salmon to pass to the spawning grounds, and for “those spawned or propagated in the spawning grounds” to make their way to the ocean, this paragraph adds that the “plaintiff and plaintiff’s members in their vocation as fishermen” have been irrevocably injured. The seventh paragraph, after claiming that “by reason of the construction of the Bonneville Dam on the Columbia River

*668

the spawning and nesting grounds of salmon on the Upper Columbia River will be cut off and destroyed,” alleges that the tributaries of the Lower Columbia will be insufficient for spawning and propagating purposes unless the water in them is kept pure. It avers that unless purity is maintained “the members of plaintiff’s organization will be unable to earn a livelihood from their vocation as fishermen.” The eighth paragraph alleges “by reason of the pollution of said waters as alleged large quantities of foreign matter accumulate in the nets and lead lines of the nets of plaintiff’s members, thereby rotting and destroying said nets and lines, and causing plaintiff’s members to sustain large damages, and plaintiff maintains this suit on behalf of its members whose names are too numerous to be made parties plaintiff.” After describing the plaintiff’s members as fishermen, cannery workers, boat pullers, etc., it avers that they have already been damaged by the acts of the defendants “in excess of the sum of $3,000.00.” The ninth paragraph avers that the defendants should be restrained from polluting the waters of the river, and that the plaintiffs have no adequate remedy at law.

So far the individual plaintiffs have not been mentioned in the complaint. The tenth paragraph is the only one which mentions them. We now quote it in full:

“That the individually named plaintiffs are fishermen and engage in fishing a drift below the opening of said sewers into said river, and the said plaintiffs fish with gill-nets and their nets are injured and rotted by reason of said pollution, and said plaintiffs intend to fish said waters in the future, and bring this suit for other fishermen fishing these waters who are too numerous to be made parties plaintiff hereto, but whose nets are being damaged by said pollution and whose

*669

vocation is being destroyed by the pollution of said waters, as hereinbefore alleged.”

This is not an instance where the attack is made upon the complaint in the midst of a trial or after judgment was obtained. In this instance the attack was made immediately after the complaint had been filed. It was begun by the filing of respondents’ demurrer. Since the corporation is not an appellant, and since the plaintiffs do not allege that they are members of it, the various averments concerning it are of no consequence in the consideration of this appeal. The nine individuals who are the appellants must sustain the complaint, if it can be sustained at all, by reason of the averments which concern them. It has been many times declared that on demurrer a pleading is strictly construed against the pleader. Doubts are resolved against him. Those who drafted the pleading are the ones who selected its language, and accordingly they had the opportunity of making its meaning as clear and the statement of their cause as strong as the facts justified. No justification exists, therefore, for infusing into this complaint something under the supposition that the pleaders possibly intended its averment. Likewise, since courts issue injunctions with great caution and only where a necessity therefor is clearly shown, the complaint seeking such a remedy should set forth facts in unequivocal language which shows a clear right to that drastic remedy.

Having in mind the principles just mentioned, let us revert to the tenth paragraph. It will be observed that the plaintiffs do not ¿liege that they possess a license to fish. Nor do they aver that they are residents of this state; in fact, it does not even appear that they are citizens of the United States. Their only description of themselves is contained in the single word

*670

“fishermen”; but how long they have been fishermen is not disclosed. They state that they “engage in fishing a drift below the opening of said sewers, ’ ’ but how far below, whether a few hundred feet or many miles, is not disclosed. Although the complaint mentions not only the Columbia and Willamette Bivers, but also their tributaries and the Willamette Slough, the tenth paragraph does not aver in which of these bodies of water the plaintiffs fish. In fact, if it should develop that their drift is in some part of the extensive bays at the mouth of the Columbia, the above averment would still be true. The complaint does not allege how long the plaintiffs have been fishermen. Their statement that they “engage in fishing a drift below the opening of said sewers” could be true if they began fishing the hour when the complaint was filed. Although the complaint alleges that the members of the aforementioned Columbia Biver Fishermen’s Protective Union are engaged “in taking and catching salmon,” and that the noxious deposits destroy salmon going to and from the spawning grounds, it does not allege that the individual plaintiffs fish for salmon; nor does it state what kind of fish they seek to catch. Although they aver that their nets are injured and rotted by reason of noisome substances, the size and value of the nets are not' mentioned. A further glance at this paragraph will indicate that the plaintiffs nowhere directly allege that a single fish with which they were concerned was lost to them by anything which the defendants did. They do not allege in terms of dollars and cents that they have been damaged.

The matter before us is one of great importance, not only to the plaintiffs if their source of livelihood is being destroyed, but also to the defendants and to every member of the public affected by the fish and

*671

pulp industries. That being true, it is doubly desirable that the complaint should possess the definiteness of meaning which is commonly exacted even in causes affecting less individuals and seeking only ordinary remedies.

In

Kuehn v. Milwaukee,

83 Wis. 583 , 53 N. W. 912 , 18 L. R. A. 553, an injunction was denied under facts even more favorable to the plaintiff than those before us. That plaintiff for more than thirty years had been a fisherman in Lake Michigan, and the defendant, the City of Milwaukee, had adopted the practice of dumping garbage into the water near his nets, thereby driving the fish from his fishing grounds and actually, upon one occasion at least, killing fish in his nets. The city’s practice was described as a public nuisance. The court, after pointing out that the place where the plaintiff fished was a common fishery in which he had no private interest, like that, for instance, of a riparian proprietor, held that since he suffered only such injuries as all other fishermen were subjected to, he was not entitled to an injunction. But in Oregon an individual who suffers a special injury may maintain a suit, even though the entire public also suffers some loss by reason of the purported wrong; but the injury suffered by the individual must be substantial, and not technical. The substantial character of the injury needed to support a suit of this character is well stated in the following taken from 32 C. J., p. 49, § 29:

“Subject to some limitations hereafter considered, in order to entitle a person to injunctive relief, whether prohibitory or mandatory in its nature, he must establish as against defendant an actual and substantial injury; * * * In other words, a complainant is not entitled to an injunction where he can show no injury to himself from the action sought to be prevented,

*672

where the damage is so small and the right so unimportant as to make the case a trivial one, or is technical and- inconsequential, or fanciful and sentimental, or a mere inconvenience, or is merely nominal, theoretical, or speculative, even though an action at law might be maintained for the same injury. In applying this rule courts have refused injunctions to prevent the building of a bridge, a railroad, or a sewer; * * * ”

The only damage which the respondents allege they suffered is the following: “Their nets are injured and rotted by reason of said pollution,” but, as already indicated, the size and value of the nets are not disclosed, nor the extent of the injury. It is not even averred that a single fish was ever caught in one of those nets. Surely such an indefinite averment is not a sufficient compliance with the demands of the situation.

I dissent.

Lusk, J., concurs in this dissent.