As decided by this Court in
Washington v. Oregon,
211 U. S. 127;
214 U. S. 205;
Sand Island, in the Columbia River, is part of the Oregon, the
boundary between that state and Washington being the ship channel
north of the Island.
An alleged nuisance consisting of nets connected with buoys and
heavily anchored to the bottom of the Columbia River between the
line of extreme low tide and the channel, in Oregon,
* is not subject
to abatement by the district court sitting in the Western District
of Washington; assuming that concurrent jurisdiction "on the
Columbia" is enjoyed by the Washington in virtue of the act
organizing Washington Territory (c. 90, § 21, 10 Stat. 179)
and the act admitting Oregon into the Union (c. 33, § 2, 11
Stat. 383), such jurisdiction does not reach the bed of the stream
in Oregon.
Plaintiff filed its bill in the Western District of Washington
to abate a nuisance on the Columbia River, assuming
bona
fide and not without some reason that the
locus in
quo was within that state and district, but later, before
taking proofs and before final hearing, moved to dismiss without
prejudice because of an intervening decision of this Court which
fixed the locus in Oregon. The motion having been refused and the
case retained upon the ground that Washington had concurrent
jurisdiction over the river,
held (1) that, in face of the
doubt concerning the power to abate the nuisance as prayed, the
district court erred in refusing the motion, and (2) that the
possibility of granting relief against the defendants
in
personam did not justify retaining the case against the
plaintiff's will.
When a decree dismissing a bill is meant to be without
prejudice, the better practice is to express it so.
219 F. 365 affirmed.
The case is stated in the opinion.
Page 245 U. S. 353
MR. JUSTICE HOLMES delivered the opinion of the court.
This is a suit brought by the appellee, the Columbia River
Packers' Association, as lessee from the United States of fishing
sites and riparian rights on Sand Island in the Columbia River, to
compel the appellants to remove certain obstructions placed by them
upon the bottom of the channel of the river in front of the
plaintiff's premises, and to refrain from longer maintaining them
there. Upon a bond being given, a restraining order was issued on
July 7, 1908; answers and a cross-bill were filed in the following
August, and a demurrer to the cross-bill was overruled on October
21 of the same year. The suit had been brought in the Western
District of Washington upon the belief that Sand Island was in
Washington and subject to the jurisdiction that that state
exercised in fact. But, on November 16, 1908, it was decided by
this Court that the boundary between Oregon and Washington was the
ship channel north of Sand Island, and that Sand Island belonged to
the former state.
Washington
v.
Page 245 U. S. 357
Oregon, 211 U. S. 127;
214 U. S. 214 U.S.
205. Thereupon, in June, 1909, the plaintiff filed a petition that
the suit be dismissed without prejudice for want of jurisdiction,
since it turned out that the land concerned was not within the
district for which the court sat.
The district court dismissed the petition and retained
jurisdiction of the cause on the ground that, by the Act of
Congress of March 2, 1853, c. 90, § 21, 10 Stat. 172, 179,
organizing the Territory of Washington, and by the Act of February
14, 1859, c. 33, § 2, 11 Stat. 383, admitting Oregon into the
Union, concurrent jurisdiction on this part of the river was
reserved to Washington when it subsequently became a state. The
plaintiff then filed a supplemental bill in which again it prayed
that the suit might be dismissed without prejudice if the court had
no jurisdiction; the case proceeded to the taking of evidence and
final hearing, the temporary injunction was dissolved, an
injunction was issued against the plaintiff's interfering with the
defendants' appliances, and a final decree for damages caused by
the temporary injunction was entered in favor of the defendants.
The plaintiff appealed to the circuit court of appeals, and that
court, being of opinion that the bill should have been dismissed on
the plaintiff's petition, reversed the decree and ordered the bill
to be dismissed. 219 F. 365.
The nuisance complained of consisted of set nets, each anchored
by a stone weighing about three hundred pounds to which was
attached a short cable which was clamped to a wire rope about
twenty-five feet long, to which in its turn was attached a buoy of
large timbers. The nets were placed between the line of extreme low
tide and the channel of the river; they were alleged to interfere
with the exercise of the plaintiffs' rights, and an abatement of
the obstruction was prayed for in the bill. We agree with the
circuit court of appeals that, assuming for the purposes
Page 245 U. S. 358
of decision that the Washington had concurrent jurisdiction "on
the Columbia," in the words of the statute (Act 1859, c. 33, §
2),
Nielsen v. Oregon, 212 U. S. 315,
212 U. S. 319,
the jurisdiction did not extend to the removal of such a nuisance
as this. It did not reach the bed of the stream, and the officers
of the state would have had no authority to intermeddle with the
defendants' nets anchored to the bottom.
See Wedding v.
Meyler, 192 U. S. 573,
192 U. S. 585.
This was an important part of the relief that the plaintiff sought,
and when it found that it could not have it, it naturally
endeavored to dismiss the bill.
It ordinarily is the undisputed right of a plaintiff to dismiss
a bill before the final hearing.
Carrington v. Holly, 1
Dickens, 280.
Cummins v. Bennett, 8 Paige, 79.
Kempton
v. Burgess, 136 Mass.192. The discussions have been directed
more to the question of costs. When a bill was filed under a
mistake common to both parties and in other like cases, the
plaintiff was allowed to dismiss his bill without costs.
Lister
v. Leather, 1 DeG. & J. 361, 368 (1859).
Broughton v.
Lashmar, 5 My. & Cr. 136, 144 (1840). Here, the decision
of this Court put the plaintiff in an unexpected position. The
question before the district court was not whether the bill ought
to be retained for a decree
in personam if the plaintiff
so desired, or even one of costs, but whether it should be retained
against the plaintiff's will for a trial that could not, or at
least very possibly might be held unable to, give it what it asked.
Upon this point also, we are of opinion that the circuit court of
appeals was right. Its decree, of course, meant that the bill was
dismissed without prejudice, as prayed, but it is better that it
should express the fact, and, with that modification, it is
affirmed.
Decree affirmed.
* The place was on the south side of Sand Island.
