McGowan v. Columbia River Packers’ Assn., 245 U.S. 352 (1917)

McGowan v. Columbia River Packers’ Association

No. 78

Argued November 22, 23, 1917
Decided December 17, 1917
245 U.S. 352

APPEAL FROM THE CIRCUIT COURT OF APPEALS

FOR THE NINTH CIRCUIT

Syllabus

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.