Enquist

This is an appeal from a decree dismissing a complaint in equity. The complaint alleged that the ap-. pellant was the owner of a fish wheel located on the bed of the Columbia river, a navigable stream in which the tide ebbs and flows, on property owned by the state of Washington; that during the year 1925 the appellees interfered with the operation of the wheel and took the fish therefrom. The relief sought was a decree establishing title to the fish wheel in the appellant, enjoining the appellees from interfering with its operation, and for an accounting for the fish taken.

While these were the facts set forth in the complaint, an entirely different state of facts was disclosed on the final hearing. The fish wheel in question was located upon private property, and was operated by the appellant, for many years prior to 1925, under a license from the fish commissioner of the state of Washington, and under a lease from the abutting property owner. The lease, covering both fish wheel and site, expired in 1925, and the appellant thereafter obtained a new lease from some of the heirs of the original owner for an undivided two-sevenths interest in the wheel and property, and the…