## Facts

- A fishermen’s union and individual gill-net fishermen earned their livelihood fishing for salmon and other fish in the Columbia and Willamette Rivers.
- The City of St. Helens and nearby manufacturers discharged sewage and industrial chemicals and waste into the rivers at or near St. Helens.
- Plaintiffs alleged the discharges polluted and fouled the water, damaged and destroyed their nets and gear, and killed or drove away fish.
- Plaintiffs alleged the pollution was continuous and threatened the destruction of their means of subsistence, making legal remedies inadequate.
- Plaintiffs sought an injunction to stop the discharges and also sought money damages for injury to nets and equipment.
- The trial court sustained defendants’ demurrer and dismissed the suit; plaintiffs appealed.

## Issues

1. Whether commercial gill-net fishermen suffered a special injury distinct from the public sufficient to maintain a private suit to restrain pollution of navigable rivers.
2. Whether the alleged pollution, though a public nuisance, could be enjoined at the request of private parties alleging special damages different in kind from the public.
3. Whether the state’s pre-capture ownership of fish (*ferae naturae*) barred fishermen from seeking relief for pollution that reduced fish stocks and impaired their livelihood.
4. Whether equity may enjoin a continuing nuisance where the injury is ongoing and alleged to be irreparable, including impairment of livelihood and damage to fishing gear.
5. Whether the action could proceed in equity for injunctive relief while also seeking damages against multiple defendants as pleaded.

## Decision

- The Oregon Supreme Court reversed the dismissal and held the complaint stated a claim for injunctive relief.
- The court held plaintiffs alleged a special interest distinct from the general public based on interference with their occupation in particular fishing drifts and damage to their nets and gear.
- The court held the public-nuisance character of river pollution did not bar a private suit when plaintiffs alleged special damages different in kind from the public.
- The court held state ownership of fish before capture did not preclude the suit because plaintiffs sought protection of their vocation and property, not ownership of fish.
- The court held equity may restrain a continuing nuisance when the threatened injury is irreparable, including destruction of a means of subsistence.
- The court indicated the damages claim, as pleaded against multiple defendants, was not properly recoverable in the equity action, but that defect did not defeat the request for an injunction.

## Legal Principles

- A private party may obtain relief for a public nuisance upon alleging and proving special damage different in kind from that suffered by the public at large.
- Commercial fishermen may have a protectable special interest in their fishing activities and equipment sufficient to support injunctive relief against pollution that interferes with their livelihood.
- The doctrine that fish are *ferae naturae* and held by the state before capture does not bar a suit aimed at preventing interference with the right to fish and protecting private property used in fishing.
- Equity will enjoin a continuing nuisance when legal remedies are inadequate, including where continued harm threatens destruction of a plaintiff’s means of subsistence.
- Pleading defects as to collective recovery of damages against multiple defendants may limit monetary relief in equity without defeating a properly stated claim for injunctive relief.

## Conclusion

The court held that commercial fishermen alleging damage to their nets and impairment of their ability to earn a living from specific fishing activities suffered special injury permitting a private equitable action to enjoin continuing river pollution, even though the conduct also constituted a public nuisance and fish are owned by the state before capture.


Columbia River Fishermen’s Protective Union v. City of St. Helens, 160 Or. 654, 87 P.2d 195 (Or. 1939)