Opinion
No. 11302-3-II.
March 17, 1989.
[1] Common Law — Individual Rights — Custom and Usage — Basis in Law. Custom and usage alone, without some other independent legal basis, cannot ripen into a legal right.
[2] Fish — Right To Fish — Improvement of Fishery — Effect. The fact that fishermen have maintained and improved a particular area for fishing does not give them any right to exclude others from fishing there.
Nature of Action: Members of an association of commercial fishermen claimed exclusive fishing rights to certain portions of the Columbia River.
Superior Court: The Superior Court for Wahkiakum County, No. 3445, Herbert E. Wieland, J., on August 6, 1987, granted a summary judgment in favor of the defendants.
Court of Appeals: Holding that the plaintiffs had not acquired any fishing rights by custom and usage, the court affirms the judgment.
Fred A. Johnson and George F. Hanigan, for appellants.
James E. Warme and Calbom, Pond, Falkenstein, Warme Engstrom, for respondents.
Members of the "Altoona Snag Union," an association of commercial fishermen, appeal a summary judgment holding unenforceable their claim to exclusive rights, commonly called "drift rights," to fish certain portions of the Columbia River with gill nets, and enjoining them from interfering with fishing in such areas by nonmembers. We affirm.
It has become customary over a long time for groups of fishermen to form associations the purpose of which is to improve fishing areas of the river by clearing snags and then to claim exclusive fishing rights in those areas. The group in question, the Altoona Snag Union, claims to have existed for more than 50 years. Its membership is exclusive; one can join only by buying an existing membership.
No state agency has officially recognized the claims of these groups. They enforce their claims through various kinds of self-help, none of which can be described as courteous. This litigation is the culmination of a simmering dispute that finally erupted when Altoona attempted to extend its claims to a deep area of the river that did not require snag removal.
[1, 2] It is axiomatic that food fish, prior to taking, are state property and that the State has the exclusive right to regulate fishing. Washington Kelpers Ass'n v. State, 81 Wn.2d 410, 502 P.2d 1170 (1972), cert. denied, 411 U.S. 982 (1973); Vail v. Seaborg, 120 Wn. 126, 207 P. 15 (1922). Conceding this, and that they can assert no claim against the State, the appellants nevertheless contend that, until the State asserts itself on the subject, they can acquire and enjoy "drift rights" against all others. There is no legal basis whatsoever for their position.
Appellants' case is built entirely on the assertion that they have acquired these rights by custom and usage. All of the cases they cite have to do with the use of custom to interpret contracts or otherwise to flesh out rights already recognized by law. They offer no authority, and we have found none, for the proposition that rights having no other legal basis can come into being solely by the custom of those claiming the rights.
The ultimate flaw in the appellants' position lies in their failure to recognize that the State exists to hold the rights of and to serve its people. Appellants' claim would arrogate exclusively to them rights owned in common by all of the people of the state. This is contrary to law, and it is elementary that no rights can arise from a custom that violates the law. Myers v. Exchange Nat'l Bank, 96 Wn. 244, 255, 164 P. 951 (1917).
Affirmed.
ALEXANDER, C.J., and REED, J., concur.
Review granted at 113 Wn.2d 1006 (1989).