Fishing & Sporting Rights
Cases
Bayley v Marquis Conyngham
(1863) 15 I.C.L.R. 406 (Common Pleas)
An action was brought for the interruption and hindrance of the plaintiff in his fishery, &c., which had been let to him by the defendant by parol for a year. The defendant traversed the fact of the letting of the fishery to the plaintiff.
Monahan C.J.
This case arises upon the construction of the recent Landlord and Tenant Act;
and I regret very much that the Court have not been able to come to an unanimous decision. I must say, however, for myself, that I have had great difficulty and much consideration in arriving at the conclusion to which the majority of the Court have come. The action was brought by Mr. Bayley against the Marquis Conyngham, for having disturbed him in the enjoyment of certain shootings and fishings, which it was alleged by the summons and plaint the agent of the Marquis Conyngham had let to him for one year. The summons and plaint contained six counts-. [His Lordship then stated the substance of the pleadings.] – Some negotiation having taken place as to certain fishings and shootings on the property of the Marquis Conyngham in the county of Donegal, the plaintiff agreed to take them for a period of four or five years, at a rent of £150 per annum. After some time, Mr. Bayley, finding that the shooting and fishing were not as good as he had expected, madea further agreement with the agent of the Marquis Conyngham, that what was originally a letting for five years should be only for one year from the month of August, for which he should pay a sum of £150. Mr. Bayley paid the sum of £75, leaving the balance unpaid. It appears that before the close of the year the Marquis Conyngham refused to allow Mr. Bayley or his friends to fish on the property in question; and in consquence of that Mr. Bayley brought his action to recover damages against the Marquis Conyngham. The real dispute between the parties,was, whether the letting was for a year, or only the unexpired portion of the fishing and shooting season. The jury found that the letting was for a year. The defendant’s Counsel submitted that, this being an incorporeal hereditament, the letting relied upon could not have been made without a deed; and, as there was no deed, they called upon me to nonsuit the plaintiff, or direct a verdict for the defendant. I declined to do so, but reserved leave for the defendant to move to have the verdict entered up for him. The question is, whether a right to fish or shoot on the river and lands of a party can be conferred in consideration of a certain rent for one year, unless by deed – whether in fact such an interest can be created by parol? The question is what is really the effect of the 3rd and 4th sections of the recent Landlord and Tenant f\ct? In order to come to a satisfactory conclusion on this point, it will be advifable to consider what the Common Law was, and what alteration was made in it by the Statute of Frauds. At Common Law no legal estate could be created in an incorporeal hereditament, save by grant under seal; but it is equally certain that at Common Law no freehold estate in land could be created, save by livery of seisin or by deed; that is, no freehold estate in land could be created by mere writing unaccompanied by livery of seisin, unless it were by bargain and sale, or by lease and release, which always implies a deed. But a valid agreement at Common Law could be made either by parol or by writing without seal, for the sale or for making a lease of any lands, or any estate or interest therein; and no doubt a binding contract for the sale or letting a right of fishing or shooting over a party’s lands could be made by parol at Common Law. That being so, the Statute of Frauds was passed. The 1st section of that statute provides that no estate in lands and tenements should be created by parol, except leases which did not exceed three years; and it was further enacted by the 2nd section that no agreement respecting any contract or sale of lands should be binding unless it was in writing, and signed by the parties to be charged therewith. The effect of that was this, that a mere agreement by parol, either to lease or sell lands or incorporeal hereditaments, was not binding, but that an actual lease of lands would be valid, provided that it did not exceed three years; but this did not extend to incorporeal hereditaments, an interest in which could not be granted save by deed; and, in the same way, a freehold estate in lands could not be created, prior to the late statute, unless by deed or by livery of seisin. This Act of Parliament is then passed, entitled ‘An Act to Consolidate and Amend the Law of Landlord and Tenant in Ireland.’ Now, the first observation which arises is, that the object of this Act of Parliament was to reduce into one Act the various Acts regulating the relations subsisting between landlord and tenant. The Acts contained in schedule B to the Act are repealed, except so far as may be necessary to support any lease or contract entered into prior to the passing of the Act. The 1st section of the Statute of Frauds is included in it, and is therefore expressly repealed. The 1st section enacts. – ….
-The question then arises, is there anything in this Act of Parliament which enables such an estate, or for a period not exceeding a year, to be created without a deed; because at Common Law, before the passing of this Act, no estate in an incorporeal hereditament, nor a freehold estate in lands, could be created without a deed. What then is the effect of this Act of Parliament? Formerly, nothing short of an actual demise created the relation of landlord and tenant. This Act of Parliament makes this revolution in the law, that the relation of landlord and tenant is now created, wherever it is agreed by one party to hold land from another in consider ation of rent, or of anything in the nature of rent. If the matter stood there, is there anything to show that the relation of landlord and tenant can be created only by an agreement in writing? By the 3rd section of that Act of Parliament it is enacted that the relation of landlord and tenant shall be deemed to be founded on the express or implied contract of the parties. There was in this case an express contract between the parties; and I see nothing in the 3rd section which requires that it should be in writing. Now I ask could it be contended, if there was a note in writing with respect to incorporeal hereditaments, creating the relation of landlord and tenant for a period exceeding a year, or creating a freehold estate in lands, that would not be sufficient under the 4th section of this Act? – [His Lordship read the section.] – It is clear that the meaning of the 3rd and 4th sections, taken together, is that, wherever the relation of landlord and tenant is intended to be created in corporeal or incorporeal hereditaments, it may be done by an agreement in writing. If therefore, according to the true construction of this agreement, the letting was for less than a year, it might have been done by parol, which could not have been the case under the Statute of Frauds, as the 2nd section of that statute relates to all agreements respecting land. It occurs to me, and to the majority of the Court, that if we are at liberty to give any effect to the glossary of the Act, the word ‘lands’ embraces incorporeal hereditaments, and that it was the intention of the Legislature to place lands and incorporeal hereditaments on the same footing, so far as relates to landlord and tenant; and that therefore whatever is sufficient to create the relation of landlord and tenant in corporeal, is sufficient also with respect to incorporeal hereditaments. Very much weight has been attached to the argument that an incorporeal hereditament could only pass by deed. Now under the 4th section of the Landlord and Tenant Act, a freehold estate in lands can be created by an agreement in writing; and why should not an interest respecting incorporeal here ditaments be created in the same way? I am aware that the 1st section of the Statute of Frauds is expressly repealed by the 3rd section of the Landlord and Tenant Act; but it does not therefore follow that the 2nd section of the Statute of Frauds may not be partially implied repealed by the same Act. There has been no decision to the effect that the express repeal of one section of an Act of Parliament prevents the implied repeal of another section, if the Act should be inconsistent with it.
Upon the whole of this case, which is one of considerable difficulty, we are of opinion that the verdict should stand, with the damages for the plaintiff at one shilling.
Ball and Keogh, JJ., concurred.
Christian, J (dissentiente)
I am of opinion that the verdict should be entered for the defendant, pursuant to the leave reserved. The action was for disturbance of the plaintiff in the enjoyment of a right of shooting and fishing, alleged to have been demised to him by the defendant for one year. To the maintaining of such an action, of course a valid demise was essential. The defence consisted substantially of a traverse of the demise, and the issues were all, in substance, did the defendant demise? The plaintiff proved a verbal agreement by the defendant’s agent, to let to him this shooting and fishing, which, upon the finding of the jury, must now be taken to have been an agreement for a year, and not for the shooting and fishing season only, as the defendant contended. The Counsel for the defendant called for a nonsuit, upon the ground that a verbal letting or agreement for a letting of an incorporeal hereditament was invalid to create an estate therein, and that conse quently, there was no evidence in support of the issue. The Lord Chief Justice refused to nonsuit, but reserved liberty to apply; and upon motion founded on that liberty (the verdict having been for the plaintiff), the case is now before us.
We are all agreed that if the plaintiff can sustain his verdict at all, it must be upon a clause or clauses in the late Act for Amendment of the Law of Landlord and Tenant (23 & 24 Vic, c., 154). Mr. Macdonagh, who, as leading Counsel for the plaintiff, opened the motion to show cause against the rule nisi, evinced, I thought, considerable misgiving upon that part of his case, for he began by labouring the case much upon Common Law considerations, founded on the acts of the parties, and the difference between contracts executory and executed, referring to cases in which corporations had been held liable on executed considerations, though there was no contract under seal. The learned Judge, however, was not asked to leave any question to the jury, as to the effect of those acts and dealings, as founding a presumption that a grant under seal was in fact executed. We are all, I believe I may venture to say, of opinion, that if the matter rested on the Common Law, this verbal demise of an incorporeal hereditament, though only for a year, would be void. Finding the Court strongly against him upon that, Mr. Macdonogh then fell back upon the statil,e. He relied upon one section only, the 4th, as interpreted by the glossary in the 1st. The Counsel for the defendant were then heard, and applied themselves exclusively to the 4th section, and it was not until the plaintiff’s second Counsel came to address the Court in reply that the 3rd section was even men tioned. I shall now proceed to consider the questions in the case, in the order in which they were argued, viz., first upon the 4th section alone, secondly upon the 3rd section, whether alone or conjointly with the 4th.
The argument upon the 4th section, as I understood it was this – that because that section required that ‘Every lease or contract whereby the relation of landlord and tenant is intended to be created for any freehold estate or interest, or for any definite period of time, not being from year to year, or any lesser period, shall be by deed or note in writing,’ that therefore it is to be inferred or implied that estates or interests from year to year, or any lesser period, may be without either deed or writing, and simply by words. Well, I really do not know how better to answer that argument, than by simply reading the section. These smaller estates and interests are simply out of that section. Whatever be the efficacy of the 4th section, whatever be its legislation, these small estates and interests are simply excluded from it. It is precisely as if the section had concluded with a proviso, ‘that nothing herein contained, shall in any way apply to or affect estates from year to year, or for any lesser period.’ It is really, therefore, too clear for rational argument, that in order to find the law applicable to those smaller interests, we must look somewhere or other outside this 4th section of the 23 & 24 Vic., c. 154. Well, if we have only the Common Law to look to, the answer is immediate. No estate or interest whatever, however small, can be created in such a heriditament as this, except by deed under seal. But then, Mr. Ball, the plaintiffs second Counsel, contends that the 3rd section of the statute has altered all; and that is what I have now to consider.
By the 3rd section it is enacted – [reads it]. The argument is founded on the concluding sentence of the section. It is said, that by it, all differences between one sort of hereditament and another, as regards the relation of landlord and tenant is abolished; and furthermore, that but for the 4th section, all differences between agreements verbal and in writing would be abolished, and that all that would be necessary in any case to constitute the relations of landlord and tenant would be an agreement, either verbal or written, by one party to hold under another in con sideration of a rent. And then, it is said, as the 4th section, which requires a deed or writing, does not apply (as I have myself shown it does not) to estates from year to year, or any lesser period, those estates or interests remain under the 3rd section alone, and may consequently be created in any species of property whatever, by word of mouth only. Well now, the first answer to that is a very simple one. It is true that the 4th section of the late Act does not apply to such a case as this, but the 2nd section of the Statute of Frauds does, and is not repealed by this statute. The first section is repealed, but the second is not, and one of the provisions of that second section, as we all know, is, that no action shall be brought ‘upon any contract, or sale of lands, tenements, or hereditaments, or any interest in or concerning them, unless the agreement, or some memorandum or note therof, shall be in writing, and signed,’ &c. Well, that is still in full force, and under that the agreement proved in evidence here is void, for want of at least a writing, even if a deed under seal were not necessary. Therefore, there is here no valid agreement to hold in consideration of a rent, and therefore the 3rd section is ex vi terminorum simply inapplicable. Well, that is a very plain and simple ground by which that section is put wholly out of the argument. The able and skilful Counsel who raised the point perfectly well knew this, that, if even the Court could look outside the new Act, his point on the 3rd section must vanish. How then did he endeavour to anticipate it? Of course he did not venture to assert that the 2nd section of the Statute of Frauds was repealed: that was out of the question, because the late statute, so far from repealing that section, declares in express terms that it shall not be repealed. By the 104th section of the late statute, it is provided that the acts and parts of acts set forth in the schedule, so far as they relate to the relation of landlord and tenant, and ‘to the extent to which such Acts or parts of Acts are by such schedule expressed to be repealed, and not further or otherwise, shall be and are hereby repealed.’ Well, the schedule mentions only section 1 of the Statute of Frauds; and of course, in the face of those express negative words, no one could contend for anything so merely irrational as it would be to say that expressly or impliedly the 2nd or any other section of the Statute of Frauds than the 1st was repealed by the 23 & 24 Vic., c. 154. Counsel did not argue anything so absurd as that; he kept the Statute of Frauds entirely out of view; and the way in which he endeavoured to attain his object was by presenting a view, which I must take the liberty of calling one of the boldest I ever heard advanced in a Court of Justice. His proposition was this: you must confine yourselves within the Act of 23 & 24 of The Queen, you must not look outside it, either at the Common Law or at any other statute, because that Act constitutes in itself a complete code of the Law of Landlord and Tenant in Ireland; which, if it means anything, means this (and to give any value to the argument must be so understood), that it has superseded the whole body of the Law of Landlord and Tenant, whether written or unwritten; and that it is within the four corners of this statut that for the future we must look for all law upon that great subject. I totally deny that such is the nature of the statute. It is not an Act of codification, but, which is a totally different thing, an Act of consolidation and amendment. Its functions are two-fold. First, it collects into one Act provisions from various former Acts, which Acts it wholly or partially, repeals; secondly, it amends certain experienced evils in the Law, both Statute and Com mon. But, subject to those partial operations, it leaves the Common and Statute Law in full force. It is in the first of those functions that it deals with the Statute of Frauds, and it does so by repealing, so far as regards the relation of landlord and tenant, the 1st section only (re-enacting it in its own 4th section), whilst it expressly declares that the 2nd section shall remain in full force in its bearing on the relation of landlord and tenant, as well as in all other respects; and, as I have already pointed out, that section entirely annuls the point upon the 3rd section of the new statute. But, independently of the 2nd section of the Statute of Frauds, suppose that section did not, as it plainly does, remove the 3rd section of the new statute out of the present field of discussion altogether, I should have no hesitation in stating my opinion to be that the function and object of that section have been entirely misapprehended. That section is plainly an example of the second of the two functions which I have ascribed to the statute. Two well-known evils existed in the law – the first, that however clearly parties might have shown their intention to create between them the relations of landlord and tenant, yet if the whole interest of the intending lessor passed, the relation could not exist, for want of a reversion, and the remedies incident to that relation were lost: the second, that if the instrument were worded as an executory agreement for a lease, and not as at present actual demise (a fertile source of litigation and conflicting decision), then the relation of landlord and tenant would not be presently constituted. The 3rd section was passed to remove both those evils, but there its operation ends. It is so part of its province to alter the law of conveyancing, but which, with respect to any particular species of property, a particular species of instrument is required to constitute a demise. Its effect, as I read it, is simply this, that whenever there is a transaction between parties, so carried out and evidenced as that the relation of landlord and tenant would be constituted, but for one or both of two reasons, namely, that the as no reversion, or that the language used was executory, then the relation shall be constituted, notwithstanding those objections. But as to the conveyancing formalities with which the transaction must be clothed, whether as to this or that species of property, it may be by parol, or must be in writing, or must be by deed, this section in my opinion leaves that to be dealt with by the rules of law which lie outside itself. And when we look outside it for the rules which apply to such a case as that before us, a letting for one year of an incorporeal hereditament, finding that the 4th section expressly excludes all letting for such a term from its operation, we have nothing left to look to but the Common Law, and the 2nd section of the Statute of Frauds. The letting here was by parol – it is therefore void. I shall now avert briefly to an argument ab inconvenienti, which was much pressed upon the Court. It was said that, unless the plaintiffs construction of the 4th section be adopted, the consequences will follow that, while a lease for 1000 years of an incorporeal hereditament will be good by writing without deed, a lease for one year or one day can only be by deed. Well, the first answer I give to that is, that if such an incongruity does arise upon the section, we cannot help it. The Legislature must be had recourse to. We have no right to resort to fanciful inferences or implications upon the statute, in order to avoid an inconvenience flowing (if it does flow) from its obvious construction. Plainly the Legislature has left these smaller interests to the governance of the law which lies outside this
statute, and whatever be the consequences of that, we can only accept them. Beyond that reason it is not necessary to go; but I must confess I am not at all as yet convinced that this supposed inconvenience or incongruity does exist. It is better to avoid expressing opinions upon this new Act of Parliament, when the case does not necessarily call for them; and therefore I shall say no more at present than that, whenever the question arises whether the 4th section enables a lease of an incor poreal hereditament to be made for any term whatever, by writing without deed, it may be very strongly argued in the negative. It may well be contended that all the statute requires is, that there must in all cases be either a deed or a writing to constitute the relation with which it deals – a writing at least, but that it by no means allows that in all cases whatever a writing shall be sufficient; so that if there be any cases in which the Common Law gives the preference to a deed over a mere writing, the statute leaves full scope to the Common Law in that respect. That is precisely the way in which the Statute of Frauds has been construed. By the first section of that statute, leases of any hereditament, corporeal or incorporeal, created by livery of seisin only, or by parol and not put in writing, and signed, &c., shall have the force and effect of leases at will only. It never occurred to anyone to argue that, because that statute thus required that all leases must be in writing, it followed that a writing should be in all cases sufficient, and that therefore, a deed was no longer necessary to the grant of an incorporeal hereditament. And so,although the Statute of Frauds excepts all leases not exceeding three years, made at a certain rent, no one ever thought of arguing that the effect of that was to exempt from the necessity of either deed or writing such leases in cases in which the Common Law required them to be by deed. Really, if the plaintiff’s argument upon the new statute be well founded, it is incomprehensible how it happened that all the lawyers who flourished in the two kingdoms since the Statute of Frauds was passed in the reign of William the Third should have continued blind to a point which plainly arose on that statute, precisely as it does on this. Well, this 4th section was a re-enactment of the 1st section of the Statute of Frauds, which is repealed by this Act; and it may well be contended, whenever the question arises, that the same construction must be put upon it, which for nearly two centuries before it was put upon the Statute of Frauds. And if the section were thought incapable of this distributive construction then, there would, to my mind, be considerable ground for contending that for that reason this 4th section does not apply to incorporeal hereditaments at all: it certainly does not without the aid of the glossary. But the introductory terms of the 1st section prevent the glossary from extending the proper meaning of the terms, in any section where there is anything in the subject or context of the section repugnant thereto. Now, the subject of this section being to supply the place of the 1st section of the Statute of Frauds. i.e. to superadd the solemnity of a writing to that which at Common Law might be done by parol, it might well be argued that it would be repugnant to the subject of that section to apply it to a species of property for which the Common Law itself required not merely a writing, but a deed, and thus give to the section in that respect the operation of diminishing instead of adding to the solemnities of conveyancing.
For these reasons, my opinion is that the case is untouched by either the 3rd or 4th sections of the new Act, and that the plaintiff ought to have been nonsuited, or a verdict directed for the defendant.
Crichton v Connor and Others
Court of Queen’s Bench.
1 January 1871
[1871] 5 I.L.T.R 161
1 January 1871
O’Brien, J.
This case was heard at the sittings after last term. A demurrer was taken by the defendants to the plaintiff’s replication. There were several points of demurrer. We shall confine our judgment to one. The summons and plaint contains three -counts, the first count alleges that the defendants, on divers days and times, broke and entered the several fishery of the plaintiff, and caught, took, and carried away, and converted to his own use, divers qualities of plaintiff’s fish; the second count alleges that the defendants had fished for oysters; thirdly, that they had trespassed on the sea-shore. The defendants pleaded that they did not do the acts complained of, nor any of them; that the several fishery in the first and second counts mentioned, was not the several fishery of the plaintiff; thirdly, that the lands were not the lands of the plaintiff; fourthly, that the said fisheries are situated in the tidal waters of the sea, and were and are, and from time immemorial have been, a part and arm of the sea, on which the tides and waters of the sea have at all times ebbed and flowed. The replication relies upon the Act of Parliament—a private Act obtained to enable Mr. Cooper to protect the salmon fishery on the Owenmore and Arrow rivers. The replication states that it was an ancient possession of the Crown, and that the plaintiff had a right to fish for salmon and other sea fish. The plaintiff says that he is entitled to a free fishery. The summons and plaint, also, complains of a trespass. We are not going to decide that question. Another objection was taken— namely, under the 7th section, which gives to Mr. Edward J. Cooper a free fishery, there is an exception as follows:—“And it shall and may be lawful for him or them, or his or their agents, or assistants, and to and for them solely and exclusively, from thenceforth for ever, except as hereinafter mentioned, to fish for, and take, catch, and kill by nets, wires, lines, and all and every lawful ways, means, engines, and contrivances, at all lawful and seasonable times and seasons, salmon and other sea fish.” We do not mean to found our judgment upon the alleged trespass. The substantial ground of the objection is, that oysters are not included in the rights of fishery. Looking at the Act of Parliament, we are of opinion that it has not given to Mr. Cooper a several right of fishery for oysters. From beginning to end the Act makes no reference to shellfish, The title of the Act shows that the object in passing it was to enable Mr. Cooper the better to protect salmon in the livers. A case has been cited to us in which there is a decision that applies to this case—the case of Bridger qui tam v. Richardson (2 M. & S., 568). We do not see any reason to doubt the soundness of that decision. The object of the Act in this case seems to have been to protect salmon, and the general words of the Act should be qualified by excluding oysters. This is a sufficient ground for our decision—namely, that the Act of Parliament confers special powers upon Mr. Cooper; before he becomes *163 entitled to the rights he seeks he is to expend a certain sum of money; the Act also provides that conveyances shall be executed to him so soon as he has expended the money and performed the conditions precedent It is not stated that these things have been done; upon that ground, judgment should be given against him; but our decision is based upon the fact that oysters are not included in the Act of Parliament.
Fitzoerald, J.
I concur in the judgment that has been pronounced by my brother O’Brien. The abstract question, divested of all technicalities, is important to the locality. It is this, whether Mr Edward Joshua Cooper, under whom the plaintiff claims, obtained an Act of Parliament conferring upon him an exclusive right to take oysters in the Bay of Ballisodare. The plaintiff is obliged to contend that the Act gave him the exclusive right to take all fish —all marine animals—found within the Bay. This is a large estuary of the sea—extending many miles out into the Atlantic, and marked by headlands 10 miles asunder. If the plaintiff were right, it would present one of the most singular species of legislation, by means of a private Act, that I have ever known. I shall draw attention to the Act of Parliament. Mr. Cooper was obliged to contend that he obtained a right to take all marine animals—cockles, periwinkles, herrings, oysters. Before we look at the Act of Parliament we must bear in mind that the public have, by the common law of the land, a right to fish and take shell-fish. This right has never been questioned. Proceeding upon this basis we must consider the terms of the Act of Parliament. The language should indeed be very clear that would give Mr. Cooper the exclusive right contended for. There is another matter that should be borne in mind. Neither Mr. Cooper nor his grantee claim the soil of the bay. If they had done so, as oysters adhere to the soil, the argument might be used that the soil carried with it that which adhered to it. The object of the Act was to establish and protect a salmon fishery within the bay vf Ballisodare The preamble of the Act is curious. It states the rise of the rivers Arrow and Owenmore, on two large lakes in the county of Sligo. It then recites that Mr. Cooper was desirous to construct certain water-cuts at his own expense, so as to remove the obstructions to the fish in their passage along the rivers; and these things he was willing to do, provided the exclusive right of fishing for, and protection of, salmon and other sea fish, were vested in him. It then goes on to say that “the establishment of a salmon fishery by the means aforesaid in the bay of Ballisodare, and on said rivers and lakes, would be beneficial to the public by affording employment.” The manner in which, according to Mr. Cooper’s argument, the proposed advantages to the public are to be carried into effect, is by giving to him the exclusive right to this several fishery, and to impose heavy pecuniary penalties upon any persons who interfered with him. This strikes me to be a singular mode of carrying out a great public object. The act proceeds to carry out the preamble. By the third section it is provided that Mr. Cooper and his heirs may treat and contract for the absolute purchase of existing rights and privileges of fishing for salmon and other sea fish. By the 7th section it is enacted that upon the payment of the moneys so contracted or agreed to be paid by Mr. Cooper to the party or parties respectively entitled to such moneys, all such existing rights and privileges shall vest in the said Edward Joshua Cooper and his heirs for ever; and after the construction of the said canals, passages, or cuts, the said lakes and rivers of Arrow and Owenmore, and the several rivers and streams connected therewith, or flowing thereinto, into which salmon and their fry or spawn, or young, or other sea fish, may at any time hereafter enter, shall be and be deemed and taken to be the free fishery of the said Edward Joshua Cooper; and it shall or may be lawful for him or them, solely [and exclusively from thenceforth for ever (except as hereinafter mentioned), to fish for and take, catch, and kill, by nets, wires, lines, and all and every lawful ways, means, engines, and contrivances, at all lawful and reasonable times and seasons, salmon and other sea fish, only within the said bay, rivers, and lakes.” The other sections of the Act define the limits of the plaintiff’s rights. I have already pointed out that the question relates to shell-fish only—to oysters. The argument of the defendants is, that the true construction of the Act applies solely to floating fish, and does not include oysters. I am prepared to go further. I state my own opinion only—that in giving the right to floating fish, the light is to be limited to salmon and other fish, that resort to rivers to breed. We all know that salmon itself would not correctly describe “all the fish” that would come within the obvious meaning of the Act. There are several varieties of the salmon tribe that resort to rivers to spawn and descend to reach the sea; and to give effect to the Act, to establish a general fishery of that kind, it was necessary to protect the salmon in their passage through the lakes and rivers; and also in the sea. Suppose the Act of Parliament gave an exclusive right to catch floating fish—see the extent to which the argument would be pushed. Did Mr. Cooper claim a right to herring fishery, and exclude all the fishermen from fishing for herrings ? and to ensure his realization of this gigantic scheme, was his claim also to include shell-fish—oysters? There is an obvious construction to be put upon the Act that will satisfy all its terms—every other sea fish only—that which migrates to rivers and lakes to spawn, and for which purpose it is necessary to afford protection. and to guard them in their passage through the waters, The whole effect of the Act of Parliament will be secured by giving Mr. Cooper the exclusive right to catch fish of this kind—not to extend a particle beyond the bay. It would be productive of great mischief, and be a dereliction of a public right, were we to push the right beyond that— nay, to give him the soil also. This was not the intention of the Act, and such is not the proper construction that can be put upon it. What is the meaning of an oyster? It is a fish; but were we to say that the Act of Parliament gave Mr. Cooper a right to fish for oysters, does it give him a right to fish for all marine animals ? An oyster is a fish, so is every marine animal. The true definition of an oyster is a bivalve shell-fish—a testaceous animal, adhering to rocks or other substances. I cannot think that such a fish passes under the Act of Parliament, or that it could do so, unless there were express terms to that effect. There are not any words in the Act including that species of fish; when we recollect that there are sections, to which I shall advert, and that Mr. Cooper possesses the protection of a fishery code, he cannot complain of injustice being done him. I find that a distinction is drawn between taking floating fish generally and shell-fish. The 5th and 6th of Victoria, sections 10, 11, 12, has reference to stealing and dredging for oysters, and a pointed distinction is taken between oysters and floating fish. Provision is made by the Act to protect oyster beds and the breed of oysters. Does the term “salmon” include all fish of the salmon kind, and further, does it include all “foreign and fresh herrings?” The public have a common law right to take shell-fish, and fish generally in the arm of the sea, of which they are not to be deprived unless there are express words to that effect. Having regard to the title, preamble, scope, and bearing of the Act, I can only pronounce the claim of Mr Cooper to the exclusive right of taking oysters to be an extravagant and unfounded claim.
George, J.
Neither during the progress of the arguments, nor at their close, did I, nor do I, entertain any doubt as to the construction of this Act of Parliament; and, in my opinion, I do not think that oysters can be regarded as coming within the terms of the description of “sea-fish” I rest my judgment not only upon the terms of the Act of Parliament itself, but also upon the case of Bridger, qui tam v. Richardson, 2 M. & S, 568 The object of the ancestor of Mr. Cooper in obtaining the Act has been made plain in the judgment of my brother Fitzgerald; and it also appears upon the face of the Act itself. It appears that before the river joins the sea, there were rapids, so difficult of access to the salmon that it was found to be desirable that canals should be constructed to facilitate the their progress. I take this as a compact entered into *164 between the ancestor of Mr. Cooper and the Legislature acting for the public—that if the difficulties were overcome, and he made the canals, facilitating the passage of the salmon from the Estuary to the spawning ground, he would derive certain rights as to the protection of salmon within the purview of the Act, and advantages not otherwise enjoyed would be conferred It appears that the two canals were made, and Mr Cooper now claims the price at which they were made, and whatever he is entitled to under the Act. Protection for the salmon was sought by him; but he adds that he is to get the shell-fish as well as the fish generally. I do not think that oysters were in the contemplation of the Legislature when the bargain was made with the ancestor of Mr. Cooper. There is a clause—the 13th—in which there is an exception:—“And be it further enacted, that if any person or persons whomsoever, shall, after such purchase and conveyance as aforesaid, without the licence or consent, in writing, of the said Edward Joshua Cooper, his heirs or assigns, take, catch, or kill, by any ways or means whatsoever (save only by or with angling rods, with lines and flies, as hereinafter excepted), any salmon or other sea fish, or their fry or spawn, in or upon the said lands, passages, or cuts, or in or upon the said bay, or the lakes and rivers of Arrow and Owenmore, or either of them, or any weirs, rivulets, or streams flowing to, or connected with, the said bay, or any or either of the aforesaid lakes, rivers, and into which salmon or other sea fish, or their fry or spawn, may at any time thereafter enter, every such person or persons shall, for every such offence, whether committed on the same or different days, forfeit and pay any sum not exceeding five pounds, to be recovered in such manner as hereinafter provided” The section so introduced makes it manifest that, upon the true construction of it, it had nothing to say to fish, and never was meant to refer to fish, that never have been, and never can be, caught by rods, or lines, or flies. The case of Bridger, qui tam v. Richardson, establishes the point in this case. The case arose out of an Act of the 3rd of James I., ch. 12, which prohibited any person from wilfully destroying any spawn, fry, or breed of any sea fish, or the setting up of any weir, or other engine. A practice prevailed of transferring small oysters which were unfit for immediate use, from their own to other beds, and nourishing them till they were fit for the market. The main point in the case was to guard against the destruction of oyster spawn; but that the Act was not to apply to the custom of taking up the oyster seed, to increase the growth of oysters in this way along the coasts of England, France, and elsewhere The case was heard before Lord Ellenborough, and the Court held that the Act did not comprehend shell-fish, and that oysters were not floating fish. Lord Ellenborough said—“What description of fish does the Act mean by the brood of sea fish?—a term which is familiar to the Legislature. On looking at the Act of Parliament I find the terms floating fish and shell-fish, and that ‘floating’ is used in contradistinction to shell-fish, and sea fish synonymously with floating fish; therefore it is fair to presume that if shell-fish had been intended to be included in this Act as well as sea fish, the Act would have so expressed it, by using the appropriate phrase—brood of sea fish and shell-fish; but I do not find that shell-fish is mentioned.” Having pointed out what were the particular engines provided, he went on to say:— “The first thing prohibited is the setting up any weirs along the shore, or in any haven, harbour, or creek, which are mentioned in the first instance as being the principal means of destruction; but did any person ever hear of oysters being destroyed by weirs; and all the apparatus relates to floating fish, particularly to salmon—it is never applied to the taking a species of fish that is stationary; and the words, ‘other engine or device whatsoever’ must be some engine of destruction—ejusdem generis.” It is manifest what the original contract of Mr. Cooper’s ancestor was—namely, to facilitate the passage of salmon getting up the river to spawn; but neither party to the Act contemplated that oysters were included Under these circumstances, I am of opinion that oysters have not been included in the Act of Parliament applicable to this case.
Society, New Plantation in Ulster & AG v Harold
House of Lords.
24 January 1912
[1912] 46 I.L.T.R 273
Earl Loreburn L.C., Earl of Halsbury, Viscount Haldane, Lord Atkinson
The Lord Chancellor (Earl Loreburn) said:—My Lords, I think there is no ground at all for this appeal. The method of fishing which has in fact prevailed in Ireland for forty years is arraigned. Until this question arose no one has ever questioned this mode of fishing. Bye-laws can be made and have been made in the case of other fisheries apparently which would regulate the mode of fishing, and if they are disapproved of they can be over-ruled by the Privy Council. Since no one who appeared before the Privy Council in any of the cases has even thought of suggesting that this mode of fishing was unlawful, we must scrutinise and see what the grounds are for now alleging that it is so. If there has been an excess of a lawful method of fishing, then the Commissioners, now represented by the Department of Agriculture, subject to the control of the Privy Council, have power to check it in the interests of the fishery at large. Now, that being the state of things, some one discovered a Scots case which was decided in this House—the case of Wedderburn v. Duke of Atholl ([1900] A. C. 403). We are bound by that decision, and if it is right to apply it in this case, we should be bound to apply it. But, my Lords, that decision related to another system of laws, and with all respect to the learned counsel who argued for the appellants, I think it has nothing at all to do with the question that arises in this case. The question that arises in this case is whether this method of fishing was unlawful according to the laws of Ireland. It is said that it was unlawful by the common law. My Lords, no case has been cited to us which decides that, and I cannot see any ground for suggesting that it is unlawful by the Irish common law. It is said also that it is fatal to the interests of the upper waters’ proprietors. I have looked at the schedule which contains the amount of fish caught each year for a long time in the upper waters, and also the number of boats which were exercising at the same time this particular mode of fishing. I can draw no such conclusion; the Court of Appeal could draw no such conclusion, as is advanced on the part of the appellants. It is then unlawful by statute? It is said it is so because this is a “fixed engine” or a “fixed net.” In my opinion it is not so according to the definition clause in the Act of Parliament which describes a fixed net or fixed engine. The only ground really for allowing this appeal which could be urged (if it were a valid one) upon the facts is, that the catching of fish in the estuary is an obstruction to the upper waters’ proprietors. No doubt it is in the sense that every fish that is caught in the lower part of the waters is prevented from getting to the upper waters, but only in that sense. To admit that as a ground would be to destroy the right of fishing in the lower waters altogether. My Lords, it seems to me the real remedy, if there has been an abuse of a lawful method of fishing, is for proper bye-laws to be brought forward, and to be considered by the Department of Agriculture, and then if need be to be considered by the eminent judges who sit in the Privy Council.
Earl of Halsbury said.—My Lords, I am of the same opinion, and I feel no necessity to add anything more to what has been said by the Lord Chancellor. The only observation I wish to make is with regard to the decision which has been quoted. What I said there I abide by. The only reason why a different decision arises here is that the law is different in the one case from what it is in the other.
Viscount Haldane said.—My Lords, Lough Foyle opens out to the sea by a channel which is divided by a bank called Tuns Bank into what are called the north channel and the south channel. The north channel is the most important for the purposes of this case. In the north channel it is the custom of certain fishermen to use nets which are of the nature of drift nets, that is to say, they are nets on an average some 600 yards long, *275 some of them longer, fastened by weights attached to the bottom, with a light rope at the top and drifting, being controlled simply by a rope which is attached to a boat for the purpose of enabling them to be hauled in and manipulated. These nets move with the current, but otherwise remain, for a considerable time at all events, in a stationary position. They are used during two months of the year, June and July, and for some three hours at night; they cannot be used in daylight because the fish would see the meshes of which they are composed. The question is whether this is a legal mode of fishing; and it is said to be illegal on two grounds—first, that it is a common law obstruction to the navigation and to the passage of fish. As to the question of obstruction to navigation, evidence was not given upon that point, and we may pass it by. As to the obstruction to the passage of fish, it is quite obvious that nets used for a very limited period of the year, such as I have described, and only for a few hours at night, are not a complete obstruction to the passage of fish. All fishing to some extent obstructs the passage of fish—it is a question of degree. My Lords, the second ground upon which it was said that these nets were prohibited was that they were illegal, “fixed engines” within the meaning of s. 4 of 26 & 27 Vict., c. 114, being one of the Irish Fishery Acts, and they were said to be “fixed engines” largely because of the decision given by this House in Wedderburn v. Duke of Atholl (ubi sup.), in the year 1900. My Lords, I think it probable that if these nets were used in Scotland, in that place which was the subject matter of litigation in the Duke of Atholl’s case, they would be held to be illegal in accordance with that decision, but why? In Scotland a long series of Scotch statutes embodying and explaining the common law has limited in a very close fashion the right to fish for salmon in estuaries, and the result is that there has grown up there a code of common and statute law combined which has been interpreted by the Courts which has practically limited the right to fish for salmon—at all events in estuaries—to something analogous to and nothing beyond the mode of fishing which is generically described as “net and coble fishing.” But, my Lords, that code is a Scotch code. It is a very different code from the code which prevails in Ireland, where the Statute law—and possibly the common law also—are different. In Ireland when you look at the law which regulates salmon fishing you find a series of statutes which make it, first of all, quite clear that drift nets are capable of being licensed, and which empower the Commissioners to licence the use of these drift nets. Then, in the second place you find another set of statutory powers given to Commissioners, now represented by the Department of Agriculture, to make bye-laws regulating the fishing; and if you turn to the long list of those bye-laws, which is conveniently set out in Mr. Conner’s book on the Irish Fishery law, you will find at the end of the book some thirty practical illustrations which show that bye-laws have been made all over Ireland regulating, among other things, the use of drift nets. Now, it is to my mind impossible to say in the face first of all of that licencing provision for drift nets, and secondly, in the face of this bye-law legislation, that drift net fishing in Ireland is put upon the same footing as drift net fishing is put by the common law of Scotland. By the common law of Scotland practically everything is prohibited under the circumstances we are considering, except fishing with a moveable net controlled by the fisherman. It appears to me to be plain that by the course of the Irish legislation what are called “drift nets,” as distinguished from “fixed engines,” are made lawful under certain conditions, and the power to regulate the use of them is conferred by statute. Under the circumstances it appears to me that the decision in the Duke of Atholl’s case (ubi sup.) was a decision on a totally different code of law, and does not govern this case, and as I find that the use of nets like this has continued for long, and has been the subject of what appears to me to be statutory recognition, I cannot come to the conclusion that they are “fixed engines” prohibited by s. 4 of 26 & 27 Vict., c. 114, and I am, therefore, of opinion that the decision of the Court below was right, and that the appeal ought to be dismissed.
Lord Atkinson said.—My Lords, I concur with my noble and learned friend on the woolsack, and I only wish to state this—In my opinion the Duke of Atholl’s case (ubi sup.) has no application whatever to this case. As I understand what was decided in the Duke of Atholl’s case was this, and only this, that the only legal mode of fishing in Scotland for the capture of salmon is by “net and coble,” and that the fishing of which they complained in that case was not a reasonable exercise of the right to fish by net and coble. But, my Lords, when the case is examined it will be found that it is exclusively based on Scotch laws and Scotch authorities. There *276 is not, I think, a single reference, so far as my memory serves me, to a single English enactment or to a single Irish enactment, or to a single case in either of those countries. Therefore, I say that case is no authority on the fishing laws of Ireland. Now, the next reason why I think the judgment of the Court below is right is this. I do not think that a drift net which is altogether unattached to the soil and is allowed to drift up and down a river or estuary as the tide may carry it in one direction or the other is a “fixed net” within the definition in the 13th and 14th Vict., c. 88, s. 1, inasmuch as the words are a net “fixed to the soil … or made stationary in any other way.” It would appear to me that those words necessarily imply that the net must be made stationary in relation to something, and that something is the soil. It may be erected on the soil as stake nets are; it may be made stationary by being held by a man who is himself walking on the soil, and thus be indirectly fixed to the soil; or it may be fixed to the soil indirectly by being held by the hand of a man in a boat which is itself anchored; but it must in all cases be fixed not with reference to the current in which it is carried, but to the soil. My Lords, my next reason is that these Irish statutes in several of their sections draw a distinction between “drift nets” and “fixed engines.” These different sections have been analysed by Lord Justice Cherry, and I do not think it is necessary to go through them again; but I think they lead one irresistibly to the conclusion that “drift nets” are not prohibited. The last observation I wish to make is this. On looking through the Appendix attached to Mr. Conner’s book I find there is not a single considerable estuary round the whole of Ireland, with the exception I think of this River Foyle, in which bye-laws have not been passed for the last forty years regulating in the general interests of the fisheries of Ireland, the size, the attachments, the mode of user and the time of user, of these very “drift nets” for the capture of salmon. Those bye-laws once passed and approved have as much the force of law as if they were embodied in these statutes. One of the sections of one of these Acts expressly enacts that they are legal enactments the moment they are passed. In face of that legislation, those practices, and this recognition of their legality, I think it is impossible to hold that the fishing complained of is an illegal mode of fishing within the meaning of either the Irish Common Law or Statute Law. My Lords, I thoroughly concur with what my noble and learned friend has said, that if there is an abuse of their legal rights by those persons entitled to fish, and if the general interests of the fishery are thereby prejudiced—if the stock of fish is brought so low as practically to seriously lessen the supply of fish—the proper tribunal to deal with that matter is the Privy Council—first the Commissioners, or the Department of Agriculture now—with an appeal to the Privy Council. It is significant that the very bye-law which was proposed to be enacted for this estuary, and which was supported by the present appellants, only proposed that this fishing should be prohibited within one mile seaward of a line from Magilligan Point to Greencastle. I presume every mode of fishing in the lower waters must to some extent prevent the access of fish to the upper waters. The most effectual way of preventing fish getting to the upper waters is to catch them in the lower waters. But when we look at the schedule it is perfectly apparent that the injury to the fishery of the appellants has been very greatly exaggerated, because in one of the years, when, I think, eighty-three boats were fishing in the lower reaches, they captured as much fish as on many occasions before. No doubt there would necessarily be obstruction to some degree. But my reason for concurring in the judgment is, as I have already mentioned, that this is not, in my opinion, an illegal mode of fishing, and there is no evidence before us to show that it has been carried out in an illegal way.
Appeal dismissed.
R. (Moore) v. O’Hanrahan
[1927] IR 406
Supreme Court.
HANNA and O’BYRNE JJ. concurred.
KENNEDY C.J. :
28 Feb.
This is an appeal from an order of the High Court (Sullivan P. and Hanna and O’Byrne JJ.), made on the 16th March, 1926, whereby it was ordered that a rule in the nature of a mandamus issue directed to Mr. O’Hanrahan, District Justice of the Ballyshannon District Court, commanding him to enter continuances upon and to hear and determine six summonses or complaints entered before him, in which the prosecutor, Robert Lyon Moore, and a number of other persons were complainants, and William Goan, Michael Mulhartagh, Hugh Gavigan, John Cleary, William Phillips, and William Morrow were respectively defendants.
The prosecutor is one of a number of persons who carry on a fishery business in the River Erne, under the style of the Erne Fishery Company, which, however, is not an incorporated company. The defendants in the several complaints are a number of fishermen of Ballyshannon, in the County of Donegal. The form of complaint in three of the summonses was that the defendant”on Wednesday, the 3rd of June, at ‘Robert’s Hole,’ in the Townland of Ballymacward, in the Barony of Tyrhugh, County of Donegal, within the jurisdiction of Ballyshannon District Court, did enter into and upon the several fishery of the complainants in the said townland in the River Erne for the purpose of, or under pretence of, killing fish or taking fish therefrom, not being authorised by the said complainants, the owners and occupiers of said several fishery, contrary to 11 & 12 Vict. c. 92, sect. 41.” In the other three the complaint was that the defendant “did enter into and upon the several fishery of the complainants in the River Erne, in the said townland, for the purpose of, or under pretence of, killing fish or taking fish therefrom: to wit, salmon, with a net, not being authorised by the said complainants, the owners and occupiers of said several fishery, contrary to” the said statute.
When these several summonses came on for hearing before the District Justice at Ballyshannon, the solicitor on behalf of the defendants raised the objection that a question of title was involved, whereupon, having received certain evidence and heard argument, the District Justice made an order on each summons in the following words:
“No jurisdiction. Question of title involved.”
The application to the High Court for an order of mandamuswas based upon the ground that no question of title was involved, and that the District Justice should be ordered to hear and determine the said several summonses.
The facts upon which the case depends are as follows: The solicitor for the complainants, at the hearing before the District Justice, produced in Court a certain deed poll of Landed Estates Court Conveyance, dated the 11th of March, 1869, under which the complainants claimed to be owners of, and to have an
absolute right in, a several fishery at the place where the alleged offence was committed. By the deed poll, the Judge of the Landed Estates Court, under the authority of the Landed Estates Court Act and in consideration of the sum of £45,250 paid into Court “to the credit of the estate of Thomas Connolly, Esq., M.P., owner and petitioner,” granted to Samuel Maxwell Alexander, John Alexander, Robert Lyon Moore, Samuel Maxwell Moore, and Patience Munn certain fisheries and fishing rights, as described in the parcels, in the Counties of Donegal, Fermanagh, and Cavan, to hold in fee-simple, subject, as to the fisheries thirdly therein described, to a certain fee-farm grant, and indemnified as to the fisheries, hereditaments, and premises firstly therein described from all quit rent by the Manor of Ballyshannon, and subject to the leases and tenancies mentioned in a schedule annexed to the deed. The parcels in the conveyance are as follows:
“Firstly, the Salmon Fishery or Fishery for Salmon by Nets, Loops, Weirs or otherwise howsoever from the Bar of Bally-shannon, in the County of Donegal, in and through the whole extent of the River Erne and the waters thereof, and the river commonly called the Abbey River, near Ballyshannon aforesaid, and the waters thereof, and all other Rivers and Watercourses having communication with the said Rivers Erne and Abbey, where Salmon is known to breed and cast spawn, and the small Island known by the name of the Salmon Island at Ballyshannon, together with all buildings and houses thereon, and the boathouse at the opposite shore, with liberty for a convenient road to the said boat-house through Mullinashce, also the small fish-house near the Fall of Ballyshannon aforesaid, and the ground reserved for drying the nets lying between the road leading from Ballyshannon aforesaid to the seashore and the Pool containing by estimation one acre plantation measure, be the same more or less, and all and singular the Salmon Fishery and liberty and right of taking Salmon of the said Thomas Connolly in and upon the said Rivers Erne and Abbey, and in and upon all Rivulets, Creeks, and Waters near or belonging thereto in the Counties of Donegal, Fermanagh, and Cavan, or any or either of them, with liberty of making and erecting new weirs in all convenient parts of the said Rivers for taking salmon. And also the Eel Fishery or Fishery for Eels at or near the Town of Ballyshannon, and all the royalties and liberty and right of taking Eels of the said Thomas Connolly at or near the Town of Ballyshannon aforesaid, with all and singular the rights, members, privileges, and appurtenances to the said Salmon and Eel Fisheries belonging or appertaining, with liberty of making and erecting new Weirs in all convenient parts of the said Eel Fishery, situate in the Counties of Donegal, Fermanagh, and Cavan. And also secondly, the Fishery and Fisheries and liberty and right of fishing for and taking Herrings and all other kinds of Fish whatsoever by nets, loops, weirs, or otherwise howsoever, of the said Thomas Connolly in or within the entire Creek, Bay, Harbour, Channel, and River of Ballyshannon, in the County of Donegal, from the High Sea in and through the whole extent of the River Erne and the waters thereof, and the River commonly called the Abbey River, near Ballyshannon aforesaid, and the waters thereof, and all other Rivers and Waters having communication with the said Rivers Erne and Abbey, and all the several fishery of the said Thomas Connolly in the said waters and every part thereof, together with all ways, waters, watercourses, rights, members, privileges, and appurtenances to the said Fisheries and premises belonging or appertaining, situate in the Counties of Donegal, Fermanagh, and Cavan. And also thirdly, the Salmon Fishery or Fishery for Salmon by loops or otherwise howsoever in or near the Fall of Belleek, in the Counties of Donegal and Fermanagh, or either of them, and all and singular the royalties, Salmon Fishery, and liberty, right, and right of taking Salmon of John Colpoys Bloomfield and William Hamilton Maffett as Receiver over his estates, and of the said Thomas Connolly as their Grantee in and upon the River Erne and in and upon all Rivulets, Creeks, or Waters near or belonging thereto in the Counties of Donegal, Fermanagh, and Cavan, or any or either of them, together with all ways, waters, watercourses, rights, members, privileges, and appurtenances to the said Salmon Fishery belonging or in anywise appertaining, situate in the Baronies of Tirhugh, Lurg, and Magheraboy, and Counties aforesaid, Excepting the Eel Fishery and Eel Weir commonly called Carrydermott, lying before or near the said Salmon Fishery of Belleek, on the borders of the Lands of Corlea, between the Counties of Donegal and Fermanagh, and full and free liberty of angling or fishing with a rod, line, and hook in all or any of the waters mentioned in the Conveyance next hereinafter referred to, in the same manner as they were excepted out of a former Conveyance of the said last-mentioned Premises made by an Indenture dated the 26th day of January. 1851, and made between Major John Colpoys Bloomfield and William Hamilton Maffett as Receiver over his Estates of the first part, and Thomas Connolly, Esq., M.P., the Owner in this matter, of the second part, being a Conveyance under the provisions of ‘The Renewable Leasehold Conversion Act,’ in lieu of a certain Lease for lives renewable for ever.”
The schedule referred to in the deed contains particulars of two leases, one made in the year 1819 by the trustees of the will of the Right Hon. Thomas Connolly to Simon Shiel of the premises firstly and thirdly described in the deed poll for three lives or twenty-four years, and the other made in the year 1860 by Thomas Connolly, Esq., to Alicia Shiel of the premises secondly described in the deed poll for a single life.
The prosecutors are the successors in title of the original grantees under the Landed Estates Court Conveyance. They claim to be entitled by virtue of that conveyance to, and say that
since its date they have exercised, the exclusive right of fishing in the River Erne at the part of the river between the Bar of Ballyshannon and the Town of Ballyshannon. They say that this exclusive right or several fishery was comprised in the parcels firstly described in the deed poll. The portion of the river in question is stated to be about three miles long, and extends from the Bar at the mouth of the River Erne to the Falls at the Town of Ballyshannon.
At the end of May, 1925, the six defendants gave notice to the prosecutors that on the 3rd day of June, 1925, at the hour of 12 o’clock, they would enter and fish in the river at the place mentioned. The defendants also gave notice of their intended attempt to fish in the said waters to the Civic Guard at Bally-shannon.
It is alleged that on the 3rd of June, 1925, at the time named, four of the defendants came up the river in a boat, and the other two defendants brought their net across the field to a point about half way between the Bar of the river and the Falls; that part of the net was put into the boat, and that the six fishermen proceeded to shoot the net in a place much frequented by salmon, stated to be one of the best netting places for salmon in that part of the River Erne. The complainants’ motor boat was in the river, and it is said that some conflict took place between the fishermen and servants of the complainants. The complainants deny that the fishermen had any leave or authority from them to enter the alleged several fishery or to fish for salmon therein, and they say that the defendants were mere trespassers, and had no right whatever to fish for salmon at the place in question.
The summonses, which I have already mentioned, were issued on the 22nd of June, 1925, and came on for hearing before Mr. O’Hanrahan, District Justice, at the District Court at Bally-shannon on the 1st of October, 1925. The prosecutors called their manager to prove the acts complained of in the summonses, and produced the Landed Estates Court Conveyance of 1869, but offered no other evidence. One, Michael MacCarthy, gave evidence on behalf of the defendants to the effect that at the particular place the waters were tidal and navigable, and therefore that the defendants had a right to fish there, and that the defendants had been fishing there more or less since 1917. The defendants’ solicitor contended that the Justice had no jurisdiction to entertain the several cases, on the ground that a bonâ fide question of title arose. He relied on the fact that at the place in question, which, it appears, is known as “Robert’s Hole,”the tide ebbed and flowed, and that that part of the River Erne was tidal, and that there was not and could not be a several fishery at that place. The defendants’ solicitor, it appears, relied, amongst other things, upon an official record of the Inquisition of Ulster for the purpose of showing that the first grant of a several fishery in the River Erne was made by James I, King of England, and that before that date there was no several fishery in the River Erne, and that therefore there was none in existence at the time of Magna Carta, and that there was no evidence of legislation by Parliament creating a several fishery after that date. It is in the affidavit alleged to have been admitted by the complainants’ manager that the complainants had not, in fact, the exclusive right of fishing in Lough Erne, but they were actually sub-lessees of the fishery in a portion of Lough Erne, which they held under lease from the Ely trustees, and that various other people had a proper right and title to fish in Lough Erne. It was contended for the defendants that the Landed Estates Court Conveyance (supposing it could do so) did not, in fact, by its terms grant or purport to grant a several fishery, but only purported to convey such rights of fishing as were enjoyed by Thomas Connolly, and that it was not shown that Thomas Connolly ever had a several fishery. Upon this evidence and upon these contentions the District Justice was satisfied that a bonâ fide question of title arose, and that his jurisdiction was ousted. He accordingly made the order, “No jurisdictionQuestion of title involved,” on each summons.
It is stated that on the 19th December, 1925, the defendants commenced an action by writ of summons in the High Court of Justice against the manager of the Erne Fishery Company to recover damages for assault and trespass to the persons and property of the defendants, and for the trover and conversion of their property, and for an injunction. This action is apparently intended by the defendants to raise for determination by the High Court the question of their right to fish at the places mentioned.
The learned Judges in the High Court were of opinion that the Landed Estates Court Conveyance on the face of it granted a several fishery, and that the District Justice should have so held, and that no question of title arose. They accordingly granted the order of mandamus. The defendants now seek to have that decision reversed.
The argument before us touched upon a number of questions of great interest, some of difficulty, upon which industry could be fruitfully expended.
This is the first occasion upon which the ouster of the jurisdiction of Justices by question of title has arisen since the establishment of the Courts of Justice under the Constitution of the Saorstát, and I should deal with it first.
The old rule was stated authoritatively for Irish Courts by Palles C.B. in his judgment (in which Andrews J. concurred) in Johnston v. Meldon (1). He put it thus: “There is no doubt of the ordinary rule, that upon a bonâ fide claim of title to land being made before Justices, their jurisdiction ceases. It does not arise from any legislative enactment, but is an old legal maxim, applicable to summary trials in general, which has been so generally applied for ages that it is assumed to be intended to be applied by every Act relating to such matters, though not specifically mentioned, unless a contrary intention is clearly indicated: Reg. v. Cridland (1); The Queen v. Stimpson (2).”He goes on to say that the reason of the rule “was stated by Lord Blackburn to be that the Justices, by convicting, would be settling a question of property conclusively, without remedy if their decision happened to be wrong.” At p. 28 he deals with the application of this rule to fishery cases as follows: “I may add that the judgments in The Queen v. Justices of Donegal (3)recognise the application of this general principle to the Act before us here [5 & 6 Vict. c. 106, sect. 65]; but, irrespective of the dicta in that case, nothing short of a decision binding in law upon this Court would induce me to hold that this rule, well described by Crompton J. (4) as ‘a great principle of law,’ did not apply to titles to fisheries which, especially as here (where the title is alleged to be in a person not a riparian proprietor), necessarily depend upon an investigation of facts for a long antecedent period, and usually involve abstruse questions of law absolutely beyond the competence of Justices.” At p. 31 he lays it down that “the duty to adjudicate upon thebona fides of the claim of right was vested in the Justices.”That is the rule as stated by the Chief Baron in this country. It is stated in similar terms in England in the leading cases of The Queen v. Cridland (1), The Queen v. Stimpson (2), Cornwallv. Sanders (5), Hudson v. M’Rae (6), and in Paley’s authoritative work on Summary Convictions. Reference should also be made to the Irish case, R. (Sheehy) v. Kerry Justices (7).
Now, in the Saorstát, the Justices and the type of Justice, around whom that rule grew, have been swept away, and a new Court, the District Court of Justice, has been established in their place, but with a more extensive jurisdiction. Does the old rule, the “great principle of law,” apply to the Justices of the new Court? It is necessary to a consideration of this question to state briefly the history of the District Court.
The former Courts of Summary Jurisdiction, Justices of the Peace, and Resident Magistrates had ceased to function effectively in the greater part of the country before the Treaty of 1921. Their place had been largely taken by the District and Parish Courts set up under the authority of the Dáil. Though the Supreme Court established under the Dáil was brought to an end in July, 1922 (Decree dated 25th July, 1922; Iris Oifigiúil of 1922, p. 449), the District and Parish Courts outside the City of Dublin continued to function under the Provisional Government and the third Dáil until they were brought to an end by a decree of the then Minister for Home Affairs, dated the 26th October, 1922 (Iris Oifigiúil of 1922, p. 623). Immediately afterwards, on the 28th October, 1922, twenty-seven gentlemen, all members of the legal profession, were appointed to act as District Justices in the Free State. After the enactment of the Constitution and the appointment of a Governor-General, the District Justices were, in accordance with Article 68 of the Constitution, formally appointed by the Governor-General. These appointments were made under the statute of 1836, 6 & 7 Wm. 4, c. 13, under which the Resident Magistrates were formerly appointed. This was, of course, a temporary expedient until the new Courts should be constituted by legislation of the Oireachtas. The first statutory reference to the District Justices occurs in sect. 6 of the Adaptation of Enactments Act, 1922 (No. 2 of 1922), which provides for the transfer of all powers, authorities, and duties from the Justices of the Peace and Resident Magistrates to the District Justices so appointed.
The judicial office of District Justice was first regularly constituted by the District Justices (Temporary Provisions) Act, 1923 (No. 6 of 1923). That Act prescribed that the persons appointed under it to be District Justices should be Solicitors or Barristers of at least two years’ standing, and confirmed the appointments already made under the Act of 1836, as if the appointments were made under this, the Act of 1923. There was thereby given to a District Justice sitting in a District Court all the powers, jurisdiction, and authority formerly vested in a Magistrate appointed under the Act of 1836, or two such Magistrates sitting together, or a Justice or Justices of the Peace sitting in Petty Sessions.
Finally, we have the Courts of Justice Act, 1924 (No. 10 of 1924), which established the District Court of Justice as it now exists. The Act transferred to the new District Court all the jurisdiction of the Justices under the District Justices (Temporary Provisions) Act, 1923, together with all the powers, jurisdictions, and authorities which were immediately before the 6th December, 1922, vested by statute or otherwise in Justices or a Justice of the Peace sitting at Petty Sessions (sects. 78 and 77); but, in addition to the jurisdiction transferred from the former Courts of Summary Jurisdiction, the Act endowed the new Court with a further share both of civil and of criminal jurisdiction (sect. 77). The civil jurisdiction so given in cases of tort was qualified by a proviso (sect. 77 A (ii)) which ousts the jurisdiction in cases where a bonâ fide question of title to land whereof the poor law valuation exceeds £10 is in issue, and a further proviso which saves the jurisdiction in cases involving a question of title to land of a lesser poor law valuation, providing, however, that the decision of the Justice is not to operate as an estoppel in or bar to a suit in any Court in relation to such land. The Act does not mention questions of title in relation to the jurisdiction on the criminal side in the District Court. It is to be observed that the right of appeal in criminal cases given by sect. 85 is made subject to limitations which had been removed by the Criminal Justice Administration Act, 1914, from the former right of appeal against convictions of the old Courts of Summary Jurisdiction. This seemingly retrograde step is probably to be explained by the legal qualifications required for appointment as Justice of the District Court by the Courts of Justice Act, 1924, which prescribes that every person appointed to the office shall be a practising barrister or solicitor of six years’ standing at the least, modified in the case of persons holding certain judicial qualifications.
No doubt, when Palles C.B. spoke of questions “absolutely beyond the competence of Justices” Johnston v. Meldon (1) he was referring to tribunals of a different calibre from the District Court as constituted by the Courts of Justice Act, 1924, whose members must possess the prescribed legal qualifications and experience already mentioned. But it is to be remembered that, on its criminal side, the District Court is a Court of Summary Jurisdiction for the trial of minor offences without a jury: The Constitution, Articles 64 and 72; Courts of Justice Act, 1924, sects. 77 B, 78, 79. Further, the course of ordinary business in the District Court is not conducive to the adequate debate and consideration of the abstruse questions of law frequently involved in matters of title, requiring long hearings and access to specialised learning.
Palles C.B., in Johnston v. Meldon (2), quotes Lord Blackburn as stating the reason for the rule to be that “the Justices, by convicting, would be settling a question of property conclusively, without remedy if their decision happened to be wrong.”The Courts of Justice Act, 1924, has not removed this basis for the rule. I have already referred to sect. 85, which limits the right of appeal from the District Court in criminal cases, while sect. 83 provides that a case stated on a question of law under that section may not be carried beyond the High Court.
In my opinion, therefore, the foundations of principle upon which the rule grew up exist substantially in the case of the District Court.
I am also of opinion that the jurisdictions transferred to the District Court were transferred with and subject to existing limitations, qualifications, and exceptions, unless otherwise expressed or necessarily implied, and therefore that the old rule ousting jurisdiction upon a bonâ fide claim of title to land being made applies to the jurisdiction in criminal cases transferred to or vested in the District Court in the same way as it formerly applied to the jurisdiction of Justices. The rule, as Palles C.B. has said, must be assumed to be intended to be applied by every Act relating to summary trials unless a contrary intention is clearly indicated. Moreover, it is evident that the rule was present to the mind of the Legislature when enacting the
Courts of Justice Act, 1924, and that it was intended to continue in force in criminal cases, because the Oireachtas expressly applied it with modifications to civil cases by the provisos to seat. 77 A (ii).
In my opinion, therefore, the jurisdiction of the District Justice in the cases which are the subject of the present application for a mandamus would be ousted upon a bonâ fide claim of title being made by the defendants in respect of the fishery claimed by the prosecutors.
Now, it is the duty of the Justice to adjudicate upon thebonâ fides of the claim of title, and here we have such an adjudication. The District Justice heard all the evidence offered and the arguments presented both by the prosecutors and by the defendants. He determined that there was a bonâ fide question of title involved in the summonses, and ruled that he had no jurisdiction to entertain the cases. The prosecutors’ contention here is that there was no evidence before the District Justice of any bonâ fide claim of title on the part of the defendants, or that the Justice acted in the teeth of coercive evidence adduced by the prosecutors, and therefore that we are entitled to, and should, interfere to compel him to hear and determine the summonses.
Let me here recall what has been laid down as to the quality of the claim of title which is effective to oust the Justice’s jurisdiction.
In The Queen v. Cridland (1) Lord Campbell C.J. said (at p. 867): “Though no evidence of title was actually offered, it was quite clear that a bonâ fide claim of title was set up; and, when such a claim is so set up, it seems to me that Justices have no longer jurisdiction to proceed to a summary conviction.”Erle J. in the same case stated his opinion (at p. 869) that “the Justices ought to try whether the defendant entertained an honest belief that he had a title; and, if he had such belief, he ought not to be convicted.” These dicta., however, need qualification or explanation, and the rule subsequently received further definition. In Cornwall v. Sanders (2) Cockburn C.J. put it thus (at p. 212): “But when the party charged asserts title in himself, though the title be only colourable, yet if the assertion be made bona fide, the jurisdiction of the Justices falls to the ground. There must, however, be some colour or show of reason for the claim”; and Wightman J. (at p. 213) said that”mere belief in the claim of title is not enough.” In Hudson v.M’Rae (3) Blackburn J. carries the matter further in the following important passage from his judgment (at p. 67): “When the question is one of fact between the prosecutor and the defendant, whether such a right as may exist in law does exist in point of fact, then title to property comes in question; and the Justices, on being convinced that the claim is bonâ fide, should hold their hands. But when the question before the Justices is not whether such a right in point of fact exists, but the defendant sets up a right which cannot possibly exist in law, then title to property cannot be said to come in question.” He refers to Reg. v. Stimpson (1), to which decision he had been a party, in these terms: “In a navigable river the public prima facie as of common right would have a right of fishing, and it would require a person to qualify this right by showing he had a right of several fishery. The prosecutor in that case claimed such a right, and the defendants set up a claim to fish as members of the public in a navigable river. The claim was bonâ fide, and not colourable, and it was held a matter which the Justices ought not to have decided. There were there opposing rights, both of which could exist in law, and the title to property therefore really came in question.” It was upon this principle that the conviction was quashed in R. (Sheehy) v. Kerry JJ. (2), a case of claims to the right of fishing in tidal waters. The rule, then, as it has become clarified by authority, may be stated as follows If a defendant raises a question of title, it becomes the first duty of the Justice to hear and determine whether a real question of title has been raised and put in issue upon the hearing of the case before him. He is not called upon to carry inquiry beyond the question of fact whether a claim of title capable of existence in law has been bonâ fide made and put in issue by the defendant, and, if he so finds, then his jurisdiction is ousted, and he cannot entertain the case further. It is no part of his duty to investigate the claim of title or to arrive at any opinion as to whether it should or should not succeed upon a full hearing. He is not to adjudicate upon the claim itself, but only upon the preliminary question whether the right claimed is one which can exist in law and is claimed bonâ fide in fact. If he arrives at an affirmative answer to that question, he may not proceed further with the case; if at a negative answer, he will deal with the case without regard to the claim. His adjudication upon the preliminary question is liable to review by way of mandamus if he refuses jurisdiction allowing the claim of title to prevail, or by way of certiorari if he proceeds to convict, ignoring the claim of title.
Now, in the present case the District Justice’s adjudication was that the defendants had raised a bonâ fide claim of title which ousted his jurisdiction. Let us see first upon what materials he arrived at that decision, as shown by the affidavits filed in these proceedings. The evidence offered by the complainants was, first, the deed poll of 11th March, 1869, which was produced and read by their solicitor, Mr. Ralph Hall Reid; and, secondly, the oral evidence of the complainants’ manager, John Swan, and of a man named Daly, who both proved the fact that the defendants were fishing on the occasion in question
at a place situate about one and a half miles from the town side of the river, and that it was a place where the Erne Fishery Company, the complainants, “always fished for salmon,” known as “Robert’s Hole.” The defendants’ solicitor, Mr. Francis Gallagher, produced and read extracts from what is alleged to have been an official record of the Inquisition of Ulster, 1629. This was relied upon to establish “that the first grant of a several fishery in the River Erne was made by James the First, King of England, in the sixth year of his reign.” It appears that Mr. Gallagher also cited certain historical works (not specified in the affidavits) for the purpose of establishing that, before the grant made by James I, there was no several fishery in the River Erne. The only oral evidence offered on the part of the defendants was that of Michael MacCarthy, who proved that the waters at the place in question are tidal and navigable, and alleged that the defendants had been fishing there more or less since the year 1917. It seems to have been admitted that the waters in question are tidal and navigable. The complainants at the hearing simply stood on the Landed Estates Court Conveyance of 11th March, 1869, which, Mr. Reid contended, was an effective grant of a several fishery, that is to say, an exclusive right of fishing in the waters in question, and of its statutory nature, a grant not open to question or challenge. Mr. Gallagher’s contention was two-fold. In the first place, he said that, since Magna Carta, no several fishery could be granted in these waters otherwise than by legislation. In the second place, he argued that the Landed Estates Court Conveyance was, in fact and in terms, a conveyance of such rights of fishing as were enjoyed by one Thomas Connolly and nothing more, and that it was not proved, and, indeed, could not be proved, that Thomas Connolly ever had a several fishery in the particular waters. He therefore contended that no case had been made by the complainants for depriving the defendants of enjoyment of the public rights in tidal waters, and, in any case, that the matter involved abonâ fide question of title which ousted the jurisdiction. There is no reason to doubt the bonâ fides of the defendants in the belief that they have a right to fish in these watersthe right which, after formal notice, they deliberately asserted by the acts complained of in the summonses; and we must take it that the District Justice was convinced of their bona fides, and so found. But, as I have already pointed out, mere bonâ fidebelief in the claim of right is not enough to oust jurisdiction. It is necessary also that the right claimed be capable of a legal existence, whether the claim be ultimately held by a competent tribunal to be well founded or not. The case of the prosecutors is that the right claimed by the defendants cannot exist in law, for the reason that the existence of such right would be inconsistent with the rights granted to them, the prosecutors, by the conveyance from the Landed Estates Court. The defendants, on their part, say that the right claimed by the prosecutors cannot have a legal existence otherwise than by virtue of specific legislation, and therefore cannot be derived under the deed poll of 1869 from the Landed Estates Court, to which they attribute a different meaning and effect.
It will be more convenient to discuss, in the first place, the argument presented on behalf of the defendants. Before doing so, however, I should refer to the expression, “several fishery,”used throughout the argument to describe the right claimed by the prosecutors under the grant of 1869. Mr. Phelps referred to the definition of “several fisheries” in sect. 1 of the Fisheries (Ireland) Act, 1850 (13 & 14 Vict. c. 88), as a definition of the right so claimed. That section enacts that in the construction and for the purposes of “the several Acts relating to engines used in the fisheries of Ireland” the word “fisheries” shall mean and include all fisheries, whether several or public, and “the words ‘several fisheries’ shall mean and include all fisheries lawfully possessed and enjoyed as such under any title whatsoever, being a good and valid title at law, exclusively of the public, by any person or persons, whether in navigable waters or in waters not navigable, and whether the soil covered by such waters be vested in such person or persons, or in any other person or persons.”
The prosecutors claim, then, by the description of a “several fishery,” to be entitled to the fishery, exclusively of the public, in the waters at the place in question, called “Robert’s Hole,”which waters are tidal and navigable. The defendants rely on Magna Carta as a complete answer to the suggestion of the existence of such several fishery. This branch of the case appears to have been more elaborately presented and more fully documented in the District Court by Mr. Gallagher than it has been here, and for my part I should have been glad to have heard it more fully developed upon the legal, constitutional, and historical instruments to which reference might properly be made for the purpose of the argument. We can only, however, make the best of the materials offered to our consideration.
The forty-seventh Chapter of the Magna Carta of King John (1215) was as follows:
“47. Omnes forestae quae afforestatae sunt tempore nostro, statim deafforestentur; et ita fiat de ripariis quae per nos tempore nostro positae sunt in defenso.”
Counsel for the defendants stated here that their argument was (to quote the actual words used) that “the rights of the public are secured by statute, namely, by the two Magna Cartas of Henry III and Edward I.” They then cited from the text of the “Great Charter of the Liberties of England,” as it appears in the English “Statutes of the Realm,” the Chapter corresponding to that which I have just quoted from the Charter of John, in the re-issues of Henry III and Edward I. In the first re-issue by Henry III (1216) it reads:
“38. Omnes forestae quae afforestatae sunt tempore regis Johannis patris nostri statim deafforestentur, et ita fiat de ripariis quae per eundem Johannem tempore suo positae sunt in defenso.”
In the second re-issue by Henry III (1217) we find:
“20. Nullae ripariae de cetero defendantur nisi illae quae fuerunt in defenso tempore Henrici regis avi nostri per eadem loca et eosdem terminos, sicut esse consueverunt tempore suo.”
This Chapter is reproduced as Chapter No. 16 in the third re-issue of Henry III, viz., in 1225, confirmed by Edward I in 1297: 25 Ed. I, Statutes of the Realm, p. 37.
I ventured to ask in the course of the statement of the appellants’ case, which was put upon the virtue of the clause just quoted, whether the submission was that the instruments cited applied and had legal force in Ireland. The answer was that the particular instruments of Henry III and Edward I were made operative in Ireland by Poynings’ Law, which, however, was not opened to us. Only too frequently one observes with regret even in this Court that diligence in the search for Irish precedent and authority is numbed by the facility of reference to English text-books.
Now, a version of the Great Charter was transmitted to Ireland in 1216 (1 Henry III), the text whereof was preserved in the Red Book of the Exchequer in Ireland, from which it was printed in the volume of “Early Statutes of Ireland, John to Henry V,” published, 1907, by the Stationery Office in Dublin, under the direction of the Master of the Rolls, and edited by Dr. Henry F. Berry. This version, given at Bristol on the same day as the first re-issue of the Charter in England, contains some specific adaptations for Ireland, but the declaration relied upon here is reproduced from the corresponding English version:
“Omnes forestae quae afforestatae sunt tempore Johannis Regis patris nostri statim deafforestentur, et ita fiat de ripariis quae per eundem Johannem tempore suo positae sunt in defenso.”
It is stated by Mr. Mills in his preface to the Calendar of the Justiciary Rolls of Ireland, Part 2 (published in 1914 by the then Stationery Office under the direction of the Master of the Rolls), that there is no record of any regrant or confirmation of the Great Charter for Ireland after the grant of 1 Henry III, to which I have just referred. It appears to have been held by the Justiciar in a case in the year 1305 that, inasmuch as Edward I had not yet granted the Great Charter, it was not in force, that is to say, that the Great Charter granted by Henry III had ceased to be operative on his death, and required a regrant or confirmation by his successor: Calendar of the Justiciary Rolls of Ireland, 1305 to 1307, p. 158, Membrane 11d-15d. It is, however, said to have been revived by a Parliament at Dublin in 1320, 13 Edward II, by the ordinance Chap. I, which says that it is agreed “que la grande chartre le Roy graunte a la clergie et au poeple Dirlande soit publie et tenutz en touz poynz,” confirmed in a Parliament at Kilkenny, 19 Edward II. Counsel for the defendants, however, averred that Magna Carta (they were, as I have already mentioned, referring to the English Great Charter) was made law applicable to Ireland by Poynings’ Act. The Act generally referred to as Poynings’ Act is 10 Henry VII, c. 4, which deals with the holding of Parliaments. They were, presumably, referring to the statute 10 Henry VII, c. 22, sometimes also called Poynings’ Law, which enacted that “all estatutes, late made within the said realm of England, concerning or belonging to the common and publique weal of the same, from henceforth be deemed good and effectual in the law, and over that be acceptyd, used and executed within this land of Ireland in all points at all times requisite according to the tenor and effect of the same.” No argument was, however, offered on the interpretation of the section, namely, whether”the estatutes late made within the said realm of England”include the Magna Carta of Henry III. This point is the subject of elaborate discussion in the argument of William Prynn in the case of Lord Connor MacGuire(1). Connor MacGuire appealed in vain to Magna Carta when he was carried to Westminster, charged with high treason in Ireland, outed of a trial by Irish peers, tried by a Middlesex jury, who convicted him, and he was executed. Prynn’s forest of arguments included contentions that Magna Carta itself was granted only to the English, and not to the Irish, or at least that it only ran in favour of the English and “loyal Irish” of the Pale, and not for the benefit of the enemy Irishry outside the English Pale; and that it was not extended to Ireland by Poynings’ Law, because it was not within the description of “estatutes latemade within the said realm of England.” He appears not to have had the version of Magna Carta sent into Ireland by Henry III, though it was in fact made in England, given at Bristol, to wit. Prynn’s argument is particularly interesting, because of its being rather in accord with more recent historical reading of Magna Carta in England, as, for instance, in Hall’s”Brief Survey of English Constitutional History,” where it is described as being, not a grant of liberties in the sense of to-day, but a charter of special privileges claimed by certain classes of the community. The argument might also be applied with special force to Tirconaill, the exceptional position of which will call for observation in a moment.
This topic, howeverthe force and validity of Magna Carta in Irelandwas but touched upon in the course of the argument, and was not developed. It could only have been raised by the prosecutors as an answer to the appellants’ case, and there would be a strong ground for not pressing it on the prosecutors’ part, lest it should lead to the ousting of the District Justice’s jurisdiction by the introduction of a question of constitutional law. In the absence of serious argument to the contrary, I will assume with both parties that the Crown in Ireland was bound in law by the Chapter of Magna Carta relied upon by the defendants.
As I have already mentioned, counsel for the defendants cited from the English Great Charters of Henry III and Edward I. It was the third re-issue of the Charter under Henry III in 1225, and not the earlier issues, which acquired the force of law in England through Parliament and the Courts. The only version which I have been able to find to have been sent into Ireland was that of 1216, 1 Henry III. The chapter in question here differs in one respect (which may possibly be of importance) in the two texts, and we have not had any assistance as to which should be read by us.
The limitation placed upon the action of the Crown by the version of the Great Charter which became law in England is referred to the time of Henry II: “No (banks) (rivers) shall be defended from henceforth but those which were in defence in the time of King Henry our grandfather by the same places and the same bounds as they were wont to be in his time.”The expression, “in the time of King Henry our grandfather,”became afterwards equivalent to “before the time of legal memory” by the effect of the statute Westminster the First, 3 Ed. I, c. 39 (1276). This is the text which has been interpreted in the reported cases, and upon which the statement of the English law on the subject now rests. The great authority is the opinion of the Judges delivered by Willes J. in Malcolmsonv. O’Dea (1). He says, at page 618: “The soil of ‘navigable tidal rivers,’ like the Shannon, so far as the tide flows and reflows, is prima facie in the Crown, and the right of fisheryprima facie in the public. But for Magna Charta, the Crown could, by its prerogative, exclude the public from suchprima facie right, and grant the exclusive right of fishery to a private individual, either together with or distinct from the soil. And the Great Charter left untouched all fisheries which were made several, to the exclusion of the public, by Act of the Crown not later than the reign of Henry II.
“If evidence be given of long enjoyment of a fishery, to the exclusion of others, of such a character as to establish that it has been dealt with as of right as a distinct and separate property, and there is nothing to show that its origin was modern, the result is not that you say, this is a usurpation, for it is not
traced back to the time of Henry II, but that you presume that the fishery being reasonably shown to have been dealt with as property, must have become such in due course of law, and therefore must have been created before legal memory.”
It will be observed that the text under consideration speaks of rivers “quae fuerunt in defenso tempore Henrici regis,” and does not say by whom put “in defence.” Willes J. must have had in mind their being put in defence otherwise than by Act of the Crown, for he goes on to say, at p. 620: “There is no improbability in the early appropriation of this always valuable property, or even a more extensive fishery, either in the time of the Irish Princes or in that of the Ostmen, who in this and other ports displaced the ancient inhabitants, and who no doubt gave the name of Lax Wear to the chief accessory of the fishery, or by Henry II in his grant to the companion of Strongbow. There is nothing improbable in its having been granted over in later times to the ancient and loyal city of Limerick.”
These principles were re-stated in Neill v. Duke of Devonshire (1). Lord Blackburn there adopts a passage from the judgment of the Master of the Rolls, from which I take the following extract: “It is not lawand this can never be too often repeatedthat the Crown cannot grant a several fishery in tidal waters since Magna Charta. It can grant a several fishery in such waters since Magna Charta if that fishery existed before Magna Charta. If a tidal river in which there wasprima facie a right in the public to fish was appropriated by an individual or by the Crown before Magna Charta, that individual or the Crown, if the Crown has got it back, can grant it after Magna Charta.” Lord O’Hagan speaks to the same effect at page 158. These decisions attribute to the phrase, “in defenso,”the signification of “fenced off” or “staked out” in assertion of a claim of property, “appropriated,” rather than a reference to the writ de defensione ripariae, by which the King’s sport was secured to him during his visitation of a particular locality, which might have been supposed to be the key to its meaning: see per Lord Blackburn, Neill v. Duke of Devonshire (1), at page 177.
A recent statement of the same law is to be found in the opinion of the Privy Council in England, delivered by Lord Haldane, in Attorney-General for British Columbia v. Attorney-General for Canada (2). He says, at p. 170: “Since the decision of the House of Lords in Malcolmson v. O’Dea (3), it has been unquestioned law that since Magna Charta no new exclusive fishery could be created by Royal grant in tidal waters, and that no public right of fishing in such waters, then existing, can be taken away without competent legislation. This is now part of the law of England, and their Lordships entertain no doubt that it is part of the law of British Columbia.” (The Colony of British Columbia was established in 1858, and by an Ordinance promulgated on 19th November of that year the laws of England, criminal and civil, as they existed on that date, were declared to be in force in the colony so far as the same were not from local circumstances inapplicable.) Lord Haldane continues: “To the general principle that the public have a ‘liberty of fishing in the sea or creeks or arms thereof,’ Lord Hale makes the exception,’ Unless in such places, creeks, or navigable rivers where either the King or some particular subject hath gained a property exclusive of that common liberty.’ This passage refers to certain special cases, of which instances are to be found in well-known English decisions, where separate and exclusive rights of fishing in tidal waters have been recognised as the property of the owner of the soil. In all such cases the proof of the existence and enjoyment of the right has of necessity gone further back than the date of Magna Charta. The origin of those rare exceptions to the public right is lost in the darkness of the past as completely as is the origin of the right itself. But it is not necessary to do more than refer to the point in explanation of the words of Lord Hale, because no such case could exist in any part of British Columbia, inasmuch as no rights there existing could possibly date from before Magna Charta.” This passage shows that the origin of the right claimed against the public in these cases must be historically possible.
The law as to fisheries in tidal waters under the English Magna Carta may therefore be summarised as follows:The public has prima facie a paramount right to fish in these waters, except in those cases where a several fishery exclusive of the public existed in the time of Henry II, that is to say, before the time of legal memory (6th July, 1189), either in the King or in some private individual or body. The Crown cannot since Magna Carta grant a new several fishery, that is to say, it can only grant a several fishery which was, in or before the time of Henry II, appropriated by the King, or of which, having been appropriated by an individual or body in or before the time of Henry II, the Crown became subsequently possessed. A person claiming to exclude the prima facie paramount right of the public may establish a lawful origin for a several fishery depending on a grant made since Magna Carta by evidence of long user, possession, and enjoyment, from which presumptions may be drawn as to appropriation or “defence” before legal memory, but such lawful origin must be historically possible. These are also the principles to which we must have regard if Magna Carta is in force in Ireland.
I return to the text of Magna Carta sent into Ireland, which, as I have already mentioned, differed in some particulars from that which became law in England. The chapter under consideration speaks of ripariae “quae per eundem Johannem tempore suo positae sunt in defenso,” “which were placed in defence by the said John in his time”; these are to be unfenced, and thereafter could not be granted as several fisheries, nor could any which had not been “in defenso” before the time of John, adopting the interpretation applied to 1 Henry III by the House of Lords in Malcolmson v. O’Dea (1) and Neillv. Duke of Devonshire (2). As regards appropriation by the Crown, we may, I think, disregard Richard I, and look only at the time of Henry II, who was in Ireland from October, in the year 1171, to April, in the year 1172.
Now we know as a matter of general history that Tirconaill at this time escaped invasion, and that the chiefs of Cinel Connell did not render feudal homage to Henry, and did not accept him as their over-lord. The itinerary of Henry can be traced in old authorities, and the independent position of Tirconaill stands out in the history of that time. But while we may take judicial notice of general history, we cannot without evidence have judicial knowledge of, or reach any conclusion as to, the fishery of the particular place in question here,”Robert’s Hole,” and no evidence has been offered to us to lead to a conclusion of fact as to whether it was or may have been put “in defence” by Henry or not. Some evidence on the point appears to have been before the District Justice. It is stated that Mr. Gallagher relied on the “Inquisition of Ulster” and other historical documents. Inquisitions may be given in evidence in these cases: Neill v. Duke of Devonshire (2),per Lord Selborne, at p. 144. Other ancient documents are also admissible as. part of the history of the title: Malcolmsonv. O’Dea (1), Neill v. Duke of Devonshire (2). Assuming that the territory of Tirconaill, which enjoyed immunity from Henry II and his Norman adventurers, included the tidal waters in which the alleged offence was committed, then it is not historically possible that Henry II put these waters in defence or appropriated a several fishery therein. As regards appropriation by a private individual or body, an affidavit by Mr. Delargy, an Irish scholar of distinction, has been filed on behalf of the defendants. Mr. Delargy says that as a result of his research he is able to state that the fishing rights in the tidal waters of the River Erne were regulated by Irish law up to the middle of the sixteenth century at least, and that there is documentary evidence against the existence of a several fishery therein to the exclusion of the local inhabitants. If this be the true state of facts, the present case is clearly distinguished from such a state of facts as existed in Malcolmson v. O’Dea (1), which was concerned with the River Shannon and the port of Limerick, and in Neill v. Duke of Devonshire (2), which was concerned with the Blackwater.
On the other hand, the prosecutors, relying on their conveyance from the Landed Estates Court only, did not offer any evidence of user or enjoyment of a several fishery in the waters from which a presumption might be raised (if historically possible) of a lawful origin for the exclusive right which they claim. Nor have they relied upon any specific legislation as a foundation of such a right; and I therefore assume for our present purpose that no such legislation exists upon any statute book.
I now come to the conveyance of 11th March, 1869, from the Landed Estates Court to the prosecutors or their predecessors in title, upon which deed the prosecutors staked their whole case in the District Court. Their contention is that, upon its true construction, the deed grants to them a several fishery in the place in dispute, and that the statutory virtue of a conveyance from the Landed Estates Court compels everyone to admit without question the validity and effectiveness of such purported grant.
The prosecutors rely on the statutory operation of the conveyance under sects. 61 and 85 of the Landed Estates Court Act, the “portentous efficacy” of which has been brought home to the minds of two generations of law students by the judgment of Christian L.J. in In re Tottenham’s Estate(1), one of the rare purple patches in the Law ‘Reports. The presumptions in favour of a conveyance operating under the similar provisions of the Incumbered Estates Act had been stated by the House of Lords in Rorke v. Errington (2), where it was held that a lease affecting land conveyed by the Incumbered Estates Court, but not mentioned in the conveyance, was by the operation of the Act expunged from the title in favour Oe the purchaser. Referring to the section of the Incumbered Estates Act corresponding to sect. 85 of the Landed Estates Court Act, Willes J., who delivered the opinion of the Judges, said: “Then comes the 49th section, which creates a presumption, juris et de jure, in favour of the absolute validity of the conveyance, if it was one which the Commissioners could, under any circumstances, properly have made.” Having referred to the words of the section, he continues: “These words seem to us final, for we do not see how, in the absence of any evidence that the land in question was not within the scope of the petition, or in the Court for sale, the question so much argued at the Bar as to jurisdiction can be raised. In the absence of such evidence, it must be assumed that the fee-simple was within the jurisdiction of the Commissioners.” Ashworth v. Browne (3), cited to us for the appellants, was also a case of a conveyance by the Commissioners for the Sale of Incumbered Estates. The petitioners claimed under a deed whereby the Commissioners conveyed to them “the several fishery of and in the river of Galway from Lough Corrib to the sea,” as granted by letters patent of King Charles II. The petitioners put in evidence a number of ancient grants, inquisitions, and other documents, commencing with the reign of King John, and they also gave evidence of possession by the grantees under the grants. The respondents contested the petitioners’ right to a several fishery in any of the three sections into which they said the river was divided, one of which was tidal and navigable. They claimed the right of the public to fish in the part of the river which was tidal. There had previously been prohibition proceedings, in which an issue had been tried by a jury whether the petitioners were entitled to a several fishery in any part of the river. Evidence having been given of the ancient grants and possession under them, the jury had found that the petitioners were entitled to a several fishery in the river, including the tidal waters. The Master of the Rolls (Cusack Smith), as to this part of the river, said, at p. 438:”With respect to that part of the river between the west bridge and the sea, in which part the sea ebbs and flows, John Browne and Michael Hughes have a prima facie common law right to fish; and the onus lies on the petitioners to show that such right has ceased to exist. It is doubtful whether such right, if it existed, could be taken away by the conveyance from the Commissioners of the Incumbered Estates Court to the petitioners, having regard to the 28th section of the statute (12 & 13 Vict. c. 77). The right of the public to fish in a river where the tide ebbs and flows is in the nature of an easement, although more properly it may be said to be a right to a profit à prendre.”He held that, having regard to the evidence, there was no satisfactory ground for deciding that the verdict of the jury should not be acted on, and made a decree accordingly.
The argument before us turned very much on the effect of the decision in the case of Gore v. M’Dermott (1). There the facts were, shortly, that the Landed Estates Court conveyed to one, O’Grady, the lessee’s interest under a renewable lease (subsequently converted into a fee-farm grant) of certain lands which (as shown by the description and map in the grant) included half the river adjoining the lands. There was no exception or reservation of fishing or of any fishing right in the renewable lease or fee-farm grant, nor in the Landed Estates Court conveyance. Subsequently the estate and interest of the landlord, the grantor in the fee-farm grant, was the subject of a petition for sale in the Landed Estates Court, and by a deed executed by the Judge of that Court there was conveyed to the plaintiff in the action the fee-farm rent reserved by the fee-farm grant, and also the right of the fishery of and in those parts of the river appertaining to and within the bounds of the lands, to hold in fee-simple, subject, however, to a lease of the several fishery in the river for a term of years then unexpired, made by Sir J. M. Steele. the owner of the fee-farm rent, which was expressed to be made “as fully as the said Sir John M. Steele hath power to demise the same.” This lease had been surrendered to the plaintiff prior to the bringing of the action. The defendant claimed the right to fish in the river by permission of O’Grady, to whom the river had been conveyed by the Landed Estates Court, without exception or reservation, and that the alleged several fishery did not exist, and therefore could not be conveyed to the plaintiff. The plaintiff relied upon his Landed Estates Court conveyance as conclusively defeating any claim by O’Grady under his prior conveyance from the same Court, and establishing the existence of a several fishery, or, if necessary, creating it, for the purpose of supporting the grant. At the trial the Judge directed a verdict for the plaintiff. The case then came before the Court of Common Pleas, who directed that the verdict be entered for the defendant. The judgment of the Court was delivered by Monahan C.J.
It was first pointed out that the lands covered with water, on or over which the fishery was said to exist, were in fact included in the petition in the matter, so that an argument founded on Errington v. Rorke (1) failed. The opinion was expressed that, even if the fact were not so, the effect of the 85th section was to render the conveyance under the Act conclusive evidence that a proper petition covering the subject-matter of the conveyance had been presented. The next question dealt with was whether a conveyance from the Landed Estates Court, which purported to convey a fishery or other incorporeal hereditament where none such existed, would not be inoperative. The opinion of the Court was “that, if there is in clear terms a conveyance in fee of a several fishery in a defined portion of a river, that conveyance will be effectual to grant it, though in fact no fishery unconnected with the ownership of the land previously existed.”The distinction was pointed out between the operation, under the first part of the 61st section, of a conveyance purporting to pass an estate in fee-simple, and the operation of a conveyance, under the second part of the section, of a lease or any partial or lesser estate than an estate in fee-simple. The judgment then turned to a consideration of the actual conveyance in question in the case. The words in the parcels were: “The right of the fishery of and in those parts of the River Moy appertaining to and within the bounds of the said lands of Carrowkerribly”; and the Court held that the words, “the fishery,” meant whatever particular fishery in fact existed. Dealing with it as a matter of construction of the Landed Estates Court conveyance, they held that by the words, “the right of the fishery,” it was intended to convey, not a several fishery, but only such right, if any, as belonged to the owner, Sir J. Steele, and he had power to sell; and that as on the evidence Sir J. Steele had no right to the fishery, nothing passed by the Landed Estates Court conveyance so far as related to the fishery. There was, of course, no question of public rights in the river dealt with in the case, there being no suggestion that the waters were tidal or navigable.
The next case mentioned in argument was In re Acheson’s Estate(1). That was an appeal which arose out of proceedings in the Landed Estates Court upon a petition for a declaration of title to a several fishery in the river and in the tidal waters of the Dowris estuary or arm of the sea called Ballynakill Bay, in the County of Galway. In the year 1863 the Landed Estates Court had made a conveyance to the petitioner in fee-simple of certain lands, “and also the Dowis or Dowris fishery, situate in the Barony of Ballinahinch, in the County of Galway, being the fishery formerly the property of Richard Martin and Thomas Martin, and as demised by them by lease of the 2nd April, 1811.”The fishery in these waters had been the subject of dispute for many years between two families, Martins and Blakes, and the controversy was within the cognisance of the Judge of the Landed Estates Court, who ordered the sale and made the conveyance. The particular decision on the propriety of the proceedings for a declaration of title is not pertinent to the present case. The importance of the case is that it shows the practice of the Landed Estates Court at that time as selling undetermined rights and estates of owners, and the discussion as to that practice in the Court of Appeal in Chancery. The Lord Chancellor says, at p. 123: “The terms of the conveyance of 1863 are equivocal. The fishery which it gives may be a free fishery, or a common of fishery, or a several fishery, as the petitioner says it is; and, by extraneous evidence, before a proper tribunal, the special character of that fishery may be satisfactorily determined. But what was sold to the petitioner was not a several fishery. He took only the estate of the owner, described by the rental, in the words of Judge Hargreave’s order, as the fishery formerly the property of the Martins, and as demised by the lease of 1811.'” Referring to Gore v.M’Dermott (2), he says, at p. 125: “We were certainly informed that the course of the Landed Estates Court had been, in cases like the present, to sell only the estate of the owner, whatever it might be, leaving any further questions, as to its extent and quality, for inquiry subsequently and elsewhere”; and, as Christian L.J. points out, at p. 130, the opinion of Judge Hargreave and Mr. Longfield was that these conveyances of fisheries would not create them if they had no previous existence. The Lord Justice says, at p. 133: “My own opinion is, I confess though what I am about to say is larger than what the decision of the case calls for, and will go for what it is worththat fishery claims, especially in public waters, so long as they are disputed and contentious, are not proper subjects either for sale or judicial declaration in the Estates Court.”
I have already referred to In re Tottenham’s Estate(3),
which was relied upon by the prosecutors. That was a case where a Landed Estates Court conveyance was by mistake made to include a plot of land contiguous to the lands comprised in the petition for sale, which plot belonged to a person other than the owner in the matter. But the owner of the contiguous plot had been served with notice for the purpose of binding him by the settling of the rental and boundaries under sect. 31 of the Act; and contiguous lands are within the purview of the operation of the Court under the section. Christian L.J., having referred in characteristic fashion to the statutory position of the Landed Estates Court and its powers, says, at p. 562:”Therefore, when questions arise whether particular acts of assumed authority fall within its limits, we must be careful to keep inside the four corners of the statute, and so to construe it as not to overstep by a hair’s breadth the natural and legal signification of its language.”
I may here refer to one other case, not mentioned in argument, Scott v. Redmond (1), where the Court of Appeal held, with reference to the second part of sect. 61 of the Landed Estates Court Act, that the Land Judges had no power to grant partial estates in land where such partial estates had not been created prior to, and were not remaining in existence at the time of, the statutable conveyance. In the words of Sullivan M.R., at pp. 117, 118: “The Landed Estates Court has no power to grant partial estates non-existent at the time of their conveyance of them; that Court has no authority conferred on it of creating for the first time by conveyance a new estate.”
I will now indicate the conclusions at which I have arrived in the light of the statute and of the authorities cited.
In the first place, we have to construe the Landed Estates Court conveyance of 1869. The prosecutors claim that, under the description in the parcels first described in the deed poll, a several fishery for salmon, exclusive of the public, in the tidal and navigable waters between the Bar of Ballyshannon and the town of Ballyshannon, was (inter alia) granted to them, and that, if no several fishery existed in the waters in question prior to the conveyance, the Landed Estates Court had power under the statute by its statutory conveyance to create such several fishery. They say that it is not necessary for this purpose to use the term “several,” for which proposition they cite Hanburyv. Jenkins (2), per Buckley J., at p. 414. It hardly needs authority to persuade us that the thing may be otherwise described than by the use of the precise words, “several fishery.”I will, then, assume for the purposes of this branch of the argument that the words used in the description would sufficiently describe a several fishery. Now, the waters in controversy are tidal and navigable, that is to say, public waters, in which prima facie the public have the right of fishing. The right of the public can only be ousted by a valid grant of a several fishery, and such a grant could only be made in certain circumstances at law or by competent legislation. If no such validly granted several fishery existed in the waters at the time of the Landed Estates Court conveyance, then the argument of the prosecutors that the conveyance itself is effective to create such several fishery amounts to this: that the conveyance can invade public property and extinguish public rights in a subject-matter outside the scope of any proceedings before the Court. No doubt there are cases in which private property and private rights have been destroyed by the operation of a conveyance from the Court. Such cases have generally been covered by the joint effect of sects. 61 and 85 of the statute. There is the passage which I have quoted from the judgment of the Court of Common Pleas in Gore v. M’Dermott (1), as to whichit is not an authority binding on this CourtI must say that, even if we were dealing with private property, I would venture respectfully to prefer, as I think Christian L.J. preferred (see In re Acheson’s Estate (2), at p. 130), the opinion of Judge Hargreave and Mr. Longfield. But no authority has been cited to us, and I am not aware of any authority, which would compel us to hold, and in the absence of compelling authority I decline to hold, that a Landed Estates Court conveyance can, by granting a several fishery in public waters where none previously existed, operate to create such several fishery to the destruction of existing public rights. I do not think it is an answer to say that the Crown is bound by sect. 61, assuming that the Crown itself cannot grant a several fishery except where permitted by Magna Carta, as generally interpreted. The true view is, in my opinion, that tidal navigable waters, in which no several fishery exists, could not in any circumstances be brought within the scope of a petition for sale in the Landed Estates Court, and, that being so, there is no subject-matter upon which the Court could, or could be imagined, to operate. I therefore reject the contention that the prosecutors’ deed, by purporting to convey, did create a several fishery in these waters.
In the second place, I am of opinion that the descriptive parcels with which we are concerned did not purport to describe a several fishery, but used equivocal terms for the purpose of covering, without defining, the existing fishery rights of Thomas Connolly. In my opinion, on the true construction of the deed poll, the Court did only convey by the first description what indeed it purports to convey, namely, the salmon fishery rights of Thomas Connolly in the Rivers Erne and Abbey, whatever those rights might be, leaving all questions as to the extent and quality of such rights, if questioned, to be determined elsewhere. A consideration of the dates and of the practice of the Court exposed in In re Acheson’s Estate (2) confirms me in this interpretation of the deed. Though the conveyance is dated the 11th March, 1869, it was, of course, made in execution of a prior contract of sale, whereof the date can be ascertained from the receipt for the consideration money at foot of the deed poll. It is there stated that the first payment of £15,000 was made on the 16th July, 1867, that is to say, at a time when, as we learn from the judgments in In re Acheson’s Estate (1), it was the practice of the Landed Estates Court, in dealing with fisheries,”to sell only the estate of the owner, whatever it might be, leaving any further questions as to its extent and quality, for inquiry subsequently and elsewhere.” In my opinion, therefore, the prosecutors have not, by the mere production of the Landed Estates Court conveyance, established a right to a several fishery in the waters in question. They have only established their right to the estate of Thomas Connolly, whatever that may have been, and they have still to establish the extent and quality of that estate and such rights as Thomas Connolly may have had, by proper evidence in competent proceedings. That is not an inquiry which can be prosecuted before the District Justice, and in my opinion, therefore, a bonâ fide question of title has been raised which ousted the jurisdiction of the District Court under the authorities which I have already quoted. It is not impossible in law that the defendants have a good title to fish in “Robert’s Hole.” It is a question of fact whether such a right exists or has been destroyed by a valid grant of a several fishery, a question which the District Court cannot determine, and may not entertain.
There are one or two observations which I wish to add for the purpose of preventing possible misapprehension. In the first place, I am not to be taken as expressing any opinion, much less deciding, whether a several fishery did or did not exist, or could or could not have been created, prior to the Landed Estates Court conveyance, in these waters. It would appear that the Crown is bound in Ireland as in England by the limitation of the relevant chapter of Magna Carta, and that the version which applies is that which was sent into Ireland in 1216, 1 Henry III. That question, however, not having been fully argued, the prosecutors will not be precluded from raising it hereafter if so advised, and I reserve the right to re-consider it on further argument.
Assuming the Great Charter of 1216 to apply to the case, then the Crown could afterwards only legally grant a several fishery in these tidal waters in one of two cases, viz., (a) if they had been appropriated by Henry II during his visit to Ireland, 1171-1172; or (b) if they had been appropriated before the time of King John by an individual or body (e.g., a monastery), and subsequently came to or were appropriated by the Crown (e.g.,by forfeiture). The prosecutors will presumably rely on a paper title, supported by evidence of user and enjoyment, while it is evident that the defendants will make the case that the presumption drawn in other cases from user and enjoyment cannot be drawn in this, for which purpose they will probably rely on evidence of the limits of the journeys of Henry II and the exceptional position of Tirconaill towards the early Norman invasion, as well as upon evidence of public rights in the waters, and perhaps of a limited right in the Abbey of Eas Ruaidh (as mentioned in Mr. Delargy’s affidavit). I wish to make it perfectly clear that, though these questions have been raised and to some extent discussed in argument, they are in no way affected or prejudiced one way or the other by this judgment, my decision being founded only on the conclusions which I have specifically stated.
It is right also to state that I am not of opinion that the questions in issue between the prosecutors and the defendants can be determined in the action which has been commenced by the defendants against the prosecutors’ manager.
Finally, I should observe that counsel for the Attorney-General, who attended during the argument, stated that he was instructed to watch the public interests involved without taking part in the proceedings, and he directed our attention to Article XI of the Constitution. It will be a matter for the consideration of the parties in constituting any proceedings, whether, in view of the claim to public rights involved and of the constitutional provision referred to, any determination of the questions in issue can be had without bringing in the Attorney-General, in whom is vested, by sect. 6 of the Ministers and Secretaries Act, 1924 (No. 16 of 1924), the business of the assertion or protection of public rights.
In my opinion, for the reasons I have stated, the order appealed from should be discharged, and the appeal allowed, with costs.
FITZGIBBON J. :
In this case I should have been content, but for the difference of opinion in this Court, to say that I agreed with the decision of the High Court for the reasons stated in the judgment of the President, but, having regard to the difference to which I have referred, I feel bound to state in fuller detail the grounds of my own Judgment.
It is unnecessary to recapitulate the facts, concerning which there is no dispute or difference.
In my opinion this case turns upon the effect to be given to the Landed Estates Court conveyance of March 11th, 1869, and the true construction of that instrument.
I shall not repeat the well-known passage from the judgment of Christian L.J., in In re Tottenham’s Estate(1), which has been cited again and again ever since it was first pronounced, and has never, so far as I know, been questioned. It was referred to, and made the basis of the decision of the Court of Appeal, in In re Ruthven’s Estate(2), by Ashbourne C., with whom Morris C.J. concurred; and, although FitzGibbon L.J. thought that it was “satisfactory to point out that the case is decided consonantly with justice, and not merely upon the potency of a Parliamentary conveyance, irrespective of justice,” he repudiated the imputation of “saying anything to weaken the potency of the Landed Estates Court conveyance.” In Rorke v. Errington (1), the conclusive effect of an Incumbered Estates Court conveyance (which is for our purpose indistinguishable from a conveyance by the Landed Estates Court) was declared by the House of Lords, upon the unanimous advice of the English Judges, affirming the decision of Irish Court of Exchequer Chamber (2), where Lefroy C.J., whose ruling at the trial was in question, was the only dissentient. Five years later the question was again argued by Mr. Isaac Butt and Sir Hugh Cairns before the House of Lords, in Power v. Reeves (3), upon a Landed Estates Court conveyance, under which the purchaser was held by Westbury C. to have “acquired a title to these estates, which, by force of the wholesome provisions contained in the statute of the 21 & 22 Vict. c. 72, cannot now be impugned or affected by any proceedings,”notwithstanding that “these estates” had been improperly conveyed. He further describes the purchasers’ title as “irrefragable,” the order under which it was granted as “wholly irrefragable and unassailable;” and Lord Cranworth, while admitting that “undoubtedly something like injustice seems to have been done to the appellant,” considered it “essential to adhere strictly to the provision of the statute, which makes a conveyance under an order of the Encumbered Estates Court absolute and conclusive.” In Gore v. M’Dermott (4), Monahan C.J., delivering the judgment of the Court of Common Pleas in Ireland upon the effect of a conveyance of an incorporeal hereditament by the Landed Estates Court, says: “After giving the matter the most anxious consideration in our power, we cannot come to the conclusion that there is any distinction between a grant in fee-simple of land and of a fishery; and that, if there is in clear terms a conveyance in fee of a several fishery in a defined portion of a river, that conveyance will be effectual to grant it, though in fact no fishery unconnected with the ownership of the land previously existed.”The Chief Justice states at the end of his judgment that Christian L.J., who had been transferred to the Court of Appeal during the interval between the hearing of the case and the delivery of the judgment, “had fully considered the case, and quite concurred in the judgment, and the reasons stated.” I have felt it my duty to give, as Monahan C.J. did, “the most anxious consideration in my power” to the same matter, especially as Gore v. M’Dermott (4), though it has stood unquestioned for sixty years, was only a decision of a Court of first instance, and in no way binds this Court, but I have been unable to find any ground upon which the decision can be impeached, and if there be a distinction between a grant by a Landed Estates Court conveyance of a several fishery in tidal waters and of one in non-tidal waters, where neither previously existed, I confess that I should feel less unhappy in having to uphold the former; but it appears to me that no valid distinction can be drawn between the two.
It becomes essential now to consider whether the hereditaments granted by the Landed Estates Court conveyance of March 11th, 1869, included a several fishery in the locus in quo.The conveyance purports to be a grant only of fishing rights, and rights essential for their enjoyment. The only land, in the popular sense, comprised in the grant is “a small island known by the name of the Salmon Island at Ballyshannon, together with all buildings and houses thereon and the Boathouse at the opposite shore, with liberty for a convenient road to the said Boathouse through Mullinashee, also the small Fish-house near the fall of Ballyshannon aforesaid, and the ground reserved for drying the nets, lying between the Road leading from Ballyshannon aforesaid to the seashore and the Pool, containing by estimation one acre plantation measure be the same more or less.” With these trifling exceptions, all the parcels are rights of fishing. The consideration is £45,250. For that consideration the Judge of the Landed Estates Court granted:”Firstly, the Salmon Fishery or Fishery for Salmon by Nets, loops, Weirs or otherwise howsoever from the Bar of Ballyshannon, in the County of Donegal, in and through the whole extent of the River Erne and the waters thereof, and the River commonly called the Abbey River, near Ballyshannon aforesaid, and the waters thereof, and all other Rivers and Watercourses having communication with the said Rivers Erne and Abbey, where salmon is known to breed and cast spawn”then follows the description of lands and rights which I have already stated”and all and singular the Salmon Fishery and liberty and right of taking Salmon of the said Thomas Conolly in and upon the said Rivers Erne and Abbey, and in and upon all Rivulets, Creeks and Waters near or belonging thereto in the Counties of Donegal, Fermanagh and Cavan, or any or either of them, with liberty of making and erecting new weirs in all convenient parts of the said Rivers for taking Salmon. And also the Eel Fishery or Fishery for Eels at or near the town of Ballyshannon, and all the royalties and liberty and right of taking Eels of the said Thomas Conolly at or near the town of Ballyshannon aforesaid, with all and singular the rights, members, privileges and appurtenances to the said Salmon and Eel Fisheries belonging or appertaining, with liberty of making and erecting new weirs in all convenient parts of the said Eel Fishery, situate in the Counties of Donegal, Fermanagh and Cavan. And also, secondly, the Fishery and Fisheries and liberty and right of fishing for and taking Herrings and all other kinds of Fish whatsoever by Nets, loops, Weirs, or otherwise howsoever of the said Thomas Conolly in or within the entire Creek, Bay, Harbour, Channel and River of Ballyshannon in the County of Donegal from the high Sea in and through the whole extent of the River Erne and the waters thereof, and the River commonly called the Abbey River, near Ballyshannon aforesaid, and the waters thereof, and all other Rivers and Waters having communication with the said Rivers Erne and Abbey, And All the several fishery of the said Thomas Conolly in the said waters and every part thereof together with all ways, waters, watercourses, rights, members, privileges, and appurtenances to the said Fisheries and premises belonging or appertaining, situate in the Counties of Donegal, Fermanagh, and Cavan. And also thirdly, the Salmon Fishery or Fishery for Salmon by loops or otherwise howsoever in or near the fall of Belleek in the Counties of Donegal and Fermanagh or either of them, and all and singular the royalties, Salmon Fishery, and liberty, right, and right of taking Salmon of John Colpoys Bloomfield and William Hamilton Maffett as Receiver over his Estates, and of the said Thomas Conolly as their Grantee in and upon the River Erne and in and upon all Rivulets, Creeks, or Waters near or belonging thereto in the Counties of Donegal, Fermanagh and Cavan, or any or either of them together with all ways, waters, watercourses, rights, members, privileges and appurtenances to the said Salmon Fishery belonging or in any wise appertaining, situate in the Baronies of Tirhugh, Lurg, and Magheraboy and Counties aforesaid. “Then follow exceptions of an Eel Fishery at Belleek and of a liberty of fishing with rod and line” as excepted out of a former conveyance of the said last-mentioned premises made by an Indenture dated 25th January, 1851, and made between Major John Colpoys Bloomfield and William Hamilton Maffett as Receiver over his estates of the first part, and Thomas Conolly, Esquire, M.P., the owner in this Matter of the second part, being a conveyance under the provisions of the Renewable Leasehold Conversion Act in lieu of a certain lease for lives renewable for ever.” The habendum is “subject as to the said Fisheries and premises thirdly hereinbefore described to the perpetual yearly Fee Farm rent . . . created by the Indenture of 25th January, 1851,” and to tenancies under two leases pur autre vie set out in the Schedule, which have expired.
In my opinion, upon the true construction of the Landed Estate Court conveyance, there is a conveyance to the grantees of a several fishery for salmon from the Bar of Ballyshannon over an expanse of waters, which admittedly includes the place where the defendants attempted to assert a right of fishing for salmon. It is not necessary that the expression “separate”or “several” or any similar epithet should be employed in order to confer or convey an exclusive right of taking fish. Not only does no such expression occur in the grants under which several fisheries were held to have been created at the great Lax Wear at Limerick: Malcomson v. O’Dea (1); and the Duke of Devonshire’s fishery at Lismore: Neill v. Duke of Devonshire (2); but it was expressly decided by Buckley J., in Hanbury v. Jenkins (3), that the use of the word “several,”or separalis piscaria, was not necessary to create a several fishery. The first parcels include “The Salmon Fishery or Fishery for Salmon by Nets, loops, Weirs, or otherwise howsoever.”The words which were held in Malcomson v. O’Dea (4)to have created a several fishery were, “the profits of a certain fishery which is called ‘Lax Wear,’ with its appurtenances,”and it was pointed out in these three cases that use of the word “weirs,” or some equivalent expression, was the appropriate mode of creating, or evidencing the existence of, a several fishery. If, therefore, the first portion of the first set of parcels be sufficient, as I think it is, to pass a several fishery, how can it be cut down by the addition of the words, “and all and singular the Salmon Fishery and liberty and right of taking Salmon of the said Thomas Conolly,” etc.? Those words are, in my opinion, designed to fortify, and not to cut down the generality of the previous grant; and I cannot interpret this grant as if it were worded, “the Fishery, if such there be, and the right, if any, thereto, of Thomas Conolly.”
But if I be wrong in this view, what is to be done with the second set of parcels: “And also, secondly, the Fisheryand Fisheries and liberty and right of fishing for and taking Herrings and all other kings of Fish whatsoever by Nets, loops,Weirs, or otherwise howsoever of the said Thomas Conolly in or within the entire Creek, Bay, Harbour, Channel and River of Ballyshannon in the County of Donegal from the High Seain and through the whole extent of the river Erne . . . and all the several fishery of the said Thomas Conolly in the said waters and every part thereof”? These words are meaningless unless they imply that Thomas Conolly had a fishery in the waters described, and that that fishery was a several fishery. If, then, Thomas Conolly had a several fishery, he had the right to exclude others from fishing in the said waters, and that right passed to the grantees from the Judge of the Landed Estates Court, and cannot now be disputed. I can see no justification whatever for interpolating the words “if any” after “several fishery,” and unless we add these words there is a clean grant of a several fishery “in the said waters and every part thereof.”
Reliance was placed during the argument upon the former practice of the Incumbered Estates Court, as disclosed in the report of In re Acheson’s Estate(1). The decision in that case has no particular bearing upon the present one; it was cited for the purpose of inducing us to interpret what I hold to be plain words in a Landed Estates Court conveyance of 1869 by the deliberately indefinite language of a Landed Estates Court conveyance of 1863. On the 31st of July, 1863, Judge Long-field granted to Acheson “the Dowrish Fishery . . . being the fishery formerly the property of Richard Martin and Thomas Martin, and as demised by them by lease of the 2nd of April 1811,” in fee-simple. In 1855 the lands of one, Blake, were being sold in the Incumbered Estates Court, and an attempt was made to sell the Dowrish fishery as the several fishery of Blake, but, upon objection taken, it was expunged from the rental by the Commissioners, their order stating that it was so expunged, “it appearing that a title to a separate fishery has not as yet been shown to the Commissioners.” In 1863 the estate of Edward Whitwell came up for sale in the Landed Estates Court, and the draft rental included the same Dowris fishery. Blake, the former claimant, filed an objection, which was overruled by Judge Hargreave, who directed that “the fishery in dispute be stated or described on the rental in this matter, as the fishery formerly the property of the Martins and as demised by the lease of 1811.”
Acheson purchased on that rental, and took a conveyance in the terms stated above. In 1867 he filed a petition for a declaration that he was absolutely entitled in fee-simple to a several fishery, Blake filed an objection, relying upon the terms of the conveyance to Acheson, and the circumstances in which it was made, as negativing Acheson’s right to a several fishery. Judge Dobbs overruled the objection, not upon the merits, but upon the ground that it was premature, and Blake appealed. On appeal, the decision of Judge Dobbs was reversed by O’Hagan C. and Christian L.J. It appears from the reports of Gore v. M’Dermott (2) and Acheson’s Estate(3) that the Judges of the Landed Estates Court, Longfield and Hargreave, were of opinion that conveyances of fisheries would not create them if they had no previous existence, but would be effectual to pass any right of fishery which might thereafter be shown by evidence dehors the deed to have been in the owner whose estate they were selling. Christian L.J. points out that the conveyance in Gore v. M’Dermott (4) was dated in 1862, and the one in Acheson’s Estate(1) in 1863, and says they were plainly instances in which Judge Hargreave, who had executed both, had acted upon the view held by himself and his colleague as to the effect of these conveyances. That view was definitely decided to be erroneous in Gore v. M’Dermott (1), the judgment in which was delivered on April 26th, 1867, when the true effect of a conveyance, and the duty in respect thereto of the Judges of the Landed Estates Court, were clearly defined by the judgment of the Court of Common Pleas. That decision was approved by the Court of Chancery Appeal in Acheson’s Estate (2), on January 25th, 1869, when Christian L.J., who had not been able to expound his views in Gore v. M’Dermott (1), did so at considerable length, and with tremendous force, winding up with the expression of his opinion (3) that to sell a fishery “as an unsettled claim was, in my opinion, a wrong, if not absolutely illegal, exercise of jurisdiction.” Is it conceivable that Judge Dobbs, whose decision was under review, and was reversed, in Acheson’s Estate(2), would, within six months, have proceeded to execute a grant to the present respondents of a similar hereditament in the very mode which had been so emphatically denounced by the Court of Appeal? If it were necessary for me to draw an inference upon the point, I should conclude that Dobbs J. had inserted the various and redundant descriptions of the parcels in the present conveyance in order to make it quite clear that he was not attempting to sell an unsettled claim, and was determined to carry out his duty as laid down by the Court of Common Pleas, before any portion of the purchase money in the present case had been paid, and by the Court of Appeal in Chancery before the conveyance was executed.
I am of opinion that upon production of the Landed Estates Court conveyance of March 11th, 1869, the relators had shown good title to an exclusive right of fishing for salmon in thelocus in quo, and that no bonâ fide claim based upon the existence of a public right of fishing by any member of the public could exist.
It has been alleged, but without any shadow of legal authority that I can find, that if an individual, honestly but erroneously, imagines that he possesses a right to invade the property of another, his mere assertion ousts the jurisdiction of Justices by raising a bonâ fide claim of title. In my opinion that is not the law. In R. v. Stimpson (4), Blackburn J. expressed the view that where a claimant to a several fishery in tidal waters had established his title by an action, or actions, against individuals, other individuals, though not parties, and not bound by the judgments, would be precluded from alleging that they claimed bonâ fide a right to fish in the same waters. To the like effect are the decisions of the Court of Queen’s Bench, to which also Blackburn J. was a party, in Hudson v. MacRae (5)a fishery in non-tidal watersand Paley v. Birch (1)tidal navigable waters in the estuary of the Ribble. In my opinion, a grant by the Landed Estates Court of a several fishery in any waters is sufficiently conclusive against the existence of any public right to fish in those waters, to preclude a member of the public from setting up a claim bonâ fide of a title adverse to that granted by the Landed Estates Court.
The District Justice dismissed the summons upon the ground, as I understand the case, that a bonâ fide claim adverse to the title under the Landed Estates Court actually existed. If the matter depended upon the construction of the document itself, I think he should have permitted the case to be opened, and then either have stated a case for the opinion of the High Court, if he thought fit, or have dismissed the case on the point of jurisdiction. But, as far as I am able to gather from the evidence before us, the decision of the District Justice was that the Landed Estates Court could not grant a several fishery in the locus in quo, and the dispute must be decided upon the assumption that the conveyance was ineffectual. On that view he would have been quite right in acting as he did, for there would then have been a real question of title involved.
I base my judgment entirely upon what I believe to be the true construction of the Landed Estates Court conveyance. If I am wrong in holding that it conveys a several fishery in the locus in quo, and the actual existence of such a fishery should be called in question, very serious and difficult questions will, or may, arise, upon which I desire to indicate no opinion whatever at the present stage of the litigation, and upon the very scanty materials before the Court.
MURNAGHAN J. :
This is an appeal from an order of the High Court, dated 16th March, 1926, directing a rule in the nature of a mandamusto issue, directed to John O’Hanrahan, District Justice of the Ballyshannon District Court, commanding him to enter continuances upon and to hear and determine, as to law and justice should appertain, six summonses or complaints. These summonses were issued by the complainants against six persons separately, and these persons, named as defendants, showed cause against the conditional order for mandamus in the High Court, but the cause shown was disallowed; and these same parties are now the appellants in this Court. Although the proceedings are taken in a criminal cause or matter, it is admitted by the prosecutors that an appeal lies to this Court under the Courts of Justice Act, 1924.
The summonses were issued on 22nd June, 1925, under sect. 41 of 11 & 12 Vict. c. 92, which is as follows:”And be it enacted, that if any person or persons, not being authorised by the owner, lessee, or occupier of a several fishery as defined under the first-recited Act (i.e., 5 & 6 Vict. c. 106), shall enter into or upon such several fishery for the purpose or under the pretence of killing fish therein or taking fish therefrom, or shall kill fish therein or take fish therefrom, he or they shall for every such offence forfeit and pay a sum not less than ten shillings nor more than five pounds, the same to be recoverable in a summary way before a Justice or Justices, as provided by the said first-recited Act of the Fifth and Sixth years of Her Majesty’s reign.”
The definition of “several fishery” is contained in sect. 114 of 5 & 6 Vict. c. 106:”And be it enacted, that the words ‘several fishery’ shall, for the purposes of this Act, be construed to mean an exclusive fishery, possessed and enjoyed as such by virtue of Grant, Patent, or Charter, or by Act of Parliament, or by Prescription; and in all rivers or parts of rivers or lakes where the tide does not ebb and flow, and which by law are not deemed public navigable Rivers or Lakes, and in which no such exclusive fishery as aforesaid shall have been possessed and enjoyed as aforesaid, the proprietors in fee of the adjoining lands shall be considered to be possessed of a several fishery within the bounds and limits of the said lands, or so far as they are seized or possessed of the soil and bed of such rivers or lakes: Provided always, that nothing herein contained shall be construed to lessen or abridge any public right of fishing by lawful means and in lawful seasons heretofore enjoyed and exercised within the limits of any such several fisheries.”
The alleged right of the defendant to fish was openly asserted at a point in the mouth of the River Erne between the falls at the town of Ballyshannon and the Bar at the mouth of the River Erne, viz., at “Robert’s Hole,” and it is clear that at this spot the tide ebbs and flows. prima facie, the defendants, as members of the public, were entitled to fish at the place in question. The law upon this point has been laid down by the highest authority: Malcomson v. O’Dea (1); Murphyv. Ryan (2); Neill v. Duke of Devonshire (3). In a recent case before the Privy Council the nature of this right was discussed: Attorney-General for British Columbia v. Attorney-General for Canada (4). In the judgment delivered by Viscount Haldane L.C., referring to Lord Blackburn’s approval in Neill v. Duke of Devonshire (3) of a citation from Lord Hale, Viscount Haldane says:”But their Lordships are in entire agreement with him on his main proposition, namely, that the subjects of the Crown are entitled as of right not only to navigate but to fish in the high seas and tidal waters alike. The legal character of this right is not easy to define. It is probably a right enjoyed so far as the high seas are concerned by common practice from time immemorial, and it was probably in very early times extended by the subject without challenge to the foreshore and tidal waters which were continuous with the ocean, if, indeed, it did not in fact first take rise in them. The right into which this practice has crystallized resembles in some respects the right to navigate the seas or the right to use a navigable river as a highway, and its origin is not more obscure than that of these rights of navigation. Finding its subjects exercising this right as from immemorial antiquity the Crown as parens patriae no doubt regarded itself bound to protect the subject in exercising it, and the origin and extent of the right as legally cognizable are probably attributable to that protection, a protection which gradually came to be recognized as establishing a legal right enforceable in the Courts.”
The salutary doctrine that the Crown as parens patriae was bound to protect the public rights of fishing did not, unfortunately, prevail in this country, as it is common knowledge that many of the valuable fisheries in tidal waters have been granted to private individuals. This is matter of history. But all such existing grants as have been acquired in accordance with the pre-existing law are now under the æegis of the Constitution, which, by Article 11, declares as follows:”All the lands and waters, mines and minerals, within the territory of the Irish Free State (Saorstát Éireann ) hitherto vested in the State, or any department thereof, or held for the public use or benefit, and also all the natural resources of the same territory (including the air and all forms of potential energy), and also all royalties and franchises within that territory shall, from and after the date of the coming into operation of this Constitution, belong to the Irish Free State (Saorstát Éireann ), subject to any trusts, grants, leases or concessions then existing in respect thereof, or any valid private interest therein, and shall be controlled and administered by the Oireachtas in accordance with such regulations and provisions as shall be from time to time approved by legislation . . .”
The manner in which such private interests were by law permitted to grow up is explained by Viscount Haldane in the case cited, at page 169. He says:”But to the practice and the right there were and indeed still are limits, or perhaps one should rather say exceptions. ‘The King,’ says Lord Hale in another passage (De Jure Maris, printed at page 373 of Stuart Moore’s History and Law of the Foreshore and Sea Shore, 3rd ed.), ‘used to put as well fresh as salt rivers in defenso for his recreation, that is, to bar fishing or fowling in a river till the King had taken his pleasure or advantage of the writ or precept de defensione ripariae, which anciently was directed to the sheriff to prohibit riviation in any rivers in his bailiwick. But by that statute it is enacted quod nullae ripariae defendantur de caetero, nisi illae quae fuerunt in defenso tempore Henrici regis avi nostri, et per eadem loca et per eosdem terminos, sicut esse consueverunt tempore suo.’The words of Magna Charta quoted by Lord Hale are of a very general character, and are not confined to tidal waters. If they had remained unconstrued by the Courts, doubts might well have been entertained, as pointed out by Lord Blackburn in Neill v. Duke of Devonshire (1), whether the 16th chapter, which contains the words cited, did more than restrain the writ de defensione ripariae, by which, when the King was about to come into a county, all persons might be forbidden from approaching the banks of the rivers, whether tidal or not, in order that the King might have his pleasure in fowling and fishing. If this were the true interpretation of the words of Magna Charta it would indicate that the general right of the public to fish in the sea and in tidal waters had been established at an earlier date than Magna Charta, so that it was only necessary at that date to guard the subject from the temporary infractions of that right by the Crown in the rivers as well tidal as non-tidal which were covered by the writ de defensione ripariae. But this is a matter of historical and antiquarian interest only. Since the decision of the House of Lords in Malcomson v. O’Dea (2), it has been unquestioned law that since Magna Charta no new exclusive fishery could be created by Royal grant in tidal waters, and that no public right of fishing in such waters, then existing, can be taken away without competent legislation. This is now part of the law of England, and their Lordships entertain no doubt that it is part of the law of British Columbia.
“Such, therefore, is undoubtedly the general law as to the public right of fishing in tidal waters. But it does not apply universally. To the general principle that the public have a ‘liberty of fishing in the sea or creeks or arms thereof,’ Lord Hale makes the exception,’ unless in such places, creeks, or navigable rivers where either the King or some particular subject hath gained a propriety exclusive of that common liberty.’ This passage refers to certain special cases of which instances are to be found in well-known English decisions where separate and exclusive rights of fishing in tidal waters have been recognised as the property of the owner of the soil. In all such cases the proof of the existence and enjoyment of the right has of necessity gone further back than the date of Magna Charta. The origin of these rare exceptions to the public right is lost in the darkness of the past as completely as the origin of the right itself. But it is not necessary to do more than refer to the point in explanation of the words of Lord Hale, because no such case could exist in any part of British Columbia, inasmuch as no rights there existing could possibly date from before Magna Charta.”
To come within the section under which the summonses were brought the complainants had to prove that they were the owners of a several fishery. In order to do this they produced a Landed Estates Court conveyance, dated 11th March, 1869, which they contend has in law the effect of evidencing an absolute and unquestionable title to a several fishery in the place in question, and thus displacing the prima facie right of the defendants to take fish in a tidal river. The District Justice ruled that he had no jurisdiction, as a question of title was involved. What has to be determined now is whether a question of title was involved, or whether the District Justice has declined jurisdiction in a case where no such question of title was at issue.
In Reg. v. Stimpson (1), Crompton J. cited a passage from Paley on Summary Convictions, on which he had relied in Reg. v. Cridland (2), viz.:”Where property or title is in question, the jurisdiction of Justices of the Peace to hear and determine in a summary manner is ousted, and their hands tied from interfering, though the facts be such as they have otherwise authority to take cognisance of.” This rule, he pointed out, was not necessarily founded upon express legislative enactment, but is implied in all Acts of Parliament giving summary jurisdiction to Justices. In that case a summons was issued under 24 & 25 Vict. c. 96, sect. 24, against the defendant for attempting to take, otherwise than by angling, fish in a river in which the prosecutor claimed to have a several fishery. The prosecutor relied upon a conveyance of certain Crown lands, and the Justices were satisfied that the prosecutor was possessed of the exclusive right of fishing. The defendant gave evidence that the river in question was tidal and navigable, and that members of the public had fished in it for 40 years, but the Justices found as a fact that the defendant was conscious at the time that he was doing wrong in fishing in the manner complained of in the part of the river in question, and they convicted him. The decision of the Justices was set aside, as the Court held that a question of title was involved.
I do not read this case as involving the proposition that no prosecution can be brought in respect of a several fishery in a public river merely because the public have prima facie a right to fish in the river, and that accordingly in every case a question of title may be said to be involved. Blackburn J. in that case said, at page 310: “Mr. Bulwer argued that statute 24 & 25 Vict. c. 96, sect. 24, will be a dead letter if the Justices cannot convict under these circumstances. But if the prosecutor wishes to establish his right, he must bring actions against those who dispute it, and his title will become stronger after every action in which he succeeds; and if he uniformly succeeds in obtaining verdicts, a party charged before Justices will not be able to show that he has a bonâ fide claim. The question for us is, whether there was reasonable evidence on which the Justices could find that a claim of title was not bonâ fide set up by the defendant.” Similarly, in the present case, the question is, whether there was reasonable evidence on which the District Justice could hold that a question of title was involved in the sense that it was bonâ fide set up by the defendants.
In the affidavit grounding the conditional order, it is stated in paragraph 5 that the owners and their predecessors in title have been in the use and enjoyment of the said several fishery ever since the date of the said grant (i.e., the Landed Estates Court grant of 11th March, 1869), and have constantly exercised the right of fishing in the said River Erne at the part of the said river between the Bar of Ballyshannon and the town of Ballyshannon, hereinafter mentioned. If this be taken to mean the exclusive use and enjoyment of fishing at the point in question no actual evidence to this effect was given at the hearing before the District Justice. Paragraph 11 of the prosecutor’s affidavit shows that, beyond proof of the acts complained of, the only evidence given before the District Justice on behalf of the prosecutors was the deed poll above referred to, which was relied upon as vesting in them, the absolute right to the several fishery in the place in question, and a statement that the prosecutors always fished at this place. This conveyance, with proof of the exclusive enjoyment, would be at least prima facie evidence of the plaintiffs’ title, as it has been pointed out in Malcomson v.O’Dea (1), in the opinion delivered by Willes J. before the House of Lords, that positive evidence of the existence of a several fishery before the date of Magna Charta cannot in the nature of things be required. Whether the grant is conclusive and irrebuttable evidence was a point much debated in the argument. Defendants were certainly going beyond the mark in contending that there could not be a several fishery at the place mentioned, unless this meant that, in point of fact, a grant before Magna Charta of a fishery in County Donegal was historically impossible, much as the Privy Council held it was impossible in British Columbia. The defendants did, however, prove, or it was admitted, that the river was tidal. They contended that they had a right to fish there, and evidence was given that they had fished there more or less since 1917. Reference is made in paragraph 4 of the affidavit of the defendants to the production of an official record of the Inquisition of Ulster, which is alleged to have proved that the first grant of a several fishery in the River Erne was made by James the First, King of England, in the sixth year of his reign; but this document was not brought to our notice, and does not appear to have been legally proved, and it must, I think, be disregarded, at all events for the purpose of this application.
In this state of the evidence the District Justice was justified, and bound to avoid proceeding with the complaint unless the deed poll had the effect of conclusively and irrebuttably establishing in the complainants a right of several fishery within the meaning of 5 & 6 Vict. c. 106. This has been the main point argued before us, although the defendants also contend that, even if the deed poll could have such force, there is also involved in its construction a point which is a matter of title, which should not be determined by the District Justice.
The conveyance was made in the estate of Thomas Connolly, M.P., owner and petitioner, and, in consideration of the sum of £45,250, several parcels were granted. The parcels firstly granted are described as: “Firstly, the Salmon Fishery or Fishery for Salmon by Nets, Loops, Weirs, or otherwise howsoever from the Bar of Ballyshannon in the County of Donegal in and through the whole extent of the River Erne and the waters thereof, and the river commonly called the Abbey river, near Ballyshannon aforesaid, and the waters thereof, and all other Rivers and Watercourses having communication with the said rivers Erne and Abbey, where salmon is known to breed and cast spawn, and the small island known by the name of the Salmon island at Ballyshannon, together with all buildings and houses thereon, and the Boathouse at the opposite shore, with liberty for a convenient road to the said Boathouse through Mullinashee, also the small fish house near the fall of Ballyshannon aforesaid, and the ground reserved for drying the nets, lying between the road leading from Ballyshannon aforesaid to the seashore and the pool, containing by estimation one acre plantation measure, be the same more or less, and all and singular the Salmon Fishery and liberty and right of taking Salmon of the said Thomas Connolly in and upon the said Rivers Erne and Abbey and in and upon all Rivulets, Creeks and Waters near or belonging thereto in the Counties of Donegal, Fermanagh and Cavan, or any or either of them, with liberty of making and erecting new weirs in all convenient parts of the said Rivers for taking Salmon. And also the eel Fishery or Fishery for eels at or near the Town of Ballyshannon, and all the royalties and liberty and right of taking Eels of the said Thomas Connolly at or near the town of Ballyshannon aforesaid, with all and singular the rights, members, privileges, and appurtenances to the said Salmon and Eel fisheries belonging or appertaining, with liberty of making and erecting new Weirs in all convenient parts of the said Eel Fishery, situate in the Counties of Donegal, Fermanagh and Cavan.” The premises secondly granted were described as follows:”And also secondly, the Fishery and Fisheries and liberty and right of fishing for and taking herrings and all other kinds of Fish whatsoever by nets, loops, weirs, or otherwise howsoever of the said Thomas Connolly in or within the entire Creek, Bay, Harbour, Channel, and River of Ballyshannon, in the County of Donegal, from the High Sea in and through the whole extent of the River Erne and the waters thereof, and the River commonly called the Abbey River, near Ballyshannon aforesaid, and the waters thereof, and all other rivers and waters having communication with the said Rivers Erne and Abbey, and all the several fishery of the said Thomas Connolly in the said waters and every part thereof, together with all ways, waters, watercourses, rights, members, privileges, and appurtenances to the said Fisheries and premises belonging or appertaining situate in the Counties of Donegal, Fermanagh and Cavan.”The premises thirdly granted were described as, “And also thirdly, the Salmon Fishery or Fishery for Salmon by loops or otherwise howsoever in or near the fall of Belleek in the Counties of Donegal and Fermanagh, or either of them, and all and singular the royalties, Salmon Fishery, and liberty, right, and right of taking Salmon of John Colpoys Bloomfield and William Hamilton Maffett as Receiver over his estates and of the said Thomas Connolly as their grantee in and upon the river Erne and in and upon all Rivulets, Creeks, or waters near or belonging thereto in the Counties of Donegal, Fermanagh and Cavan, or any or either of them, together with all ways, waters, watercourses, rights, members, privileges and appurtenances to the said Salmon Fishery belonging or in any wise appertaining, situate in the Baronies of Tirhugh, Lurg, and Magheraboy and Counties aforesaid.” There were excepted, however, an eel fishery and weir at a particular spot and the full and free liberty of angling or fishing with a rod, line, and hook in all or any of the waters mentioned in a certain conveyance, viz., a conveyance dated 26th January, 1851, which was a grant made by John Colpoys Bloomfield and William Hamilton Maffett as Receiver over his Estates of the one part, and Thomas Conolly, Esq., M.P., the owner in the matter of the second part, under the provisions of the Renewable Leasehold Conversion Act in lieu of a certain lease for lives renewable for ever. The premises were granted as respects the premises thirdly granted subject to a perpetual yearly fee farm rent of £18 9s. 3d. and indemnified as to the said Fisheries, hereditaments and premises firstly described from all Quit rent by the manor of Ballyshannon, and subject to the leases and tenancies in the Schedule annexed to the deed. The first lease mentioned in the Schedule was a lease for three lives at a rent of £1107 13s. 10d., the premises demised being the Salmon Fishery of Ballyshannon in the County of Donegal in and through the whole extent of the river Erne and the Abbey River. The parcels are described in words similar to the parcels firstly granted, save that there is no mention of the Salmon Fishery from the Bar at Ballyshannon, unless this fishery is covered by the words “in and through the whole extent of the river Erne.” This lease also included the premises described in the deed as thirdly granted. There was also another lease for the life of Right Hon. Sir Edward Pakenham of the premises granted secondly by the deed at a rent of £10.
The effect of a Land Judge’s conveyance depends upon the Landed Estates Court (Ireland) Act, 1858 (21 & 22 Vict. c. 72). Section 1 defines “land” to include and extend to manors, advowsons, rectories, messuages, tithes, lands, tenements, rents, annuities charged on lands and hereditaments of any tenure, or any estate therein, partial, derivative, or otherwise, and whether such land be held as freehold or chattel, or held by lease, or whether subject to any fee-farm or other perpetual rent, with or without the condition of re-entry for securing the same or otherwise, or whether corporeal or incorporeal, and whether a divided or undivided share. It is manifest, therefore, that a several fishery in tidal waters is included in this definition of land as used in the Act. Section 61 of the Act describes the effect to be given to a conveyance made under the Act: “Every such conveyance executed as aforesaid by the said Judge purporting to pass an estate in fee simple shall be effectual to pass the fee simple and inheritance of the land, subject to such charges, tenancies, rights of common or other easements, leases, and under-leases, as may be expressed or referred to therein as aforesaid, but, save as aforesaid, and as hereinafter provided, discharged from all former and other estates, rights, titles, charges, and incumbrances whatsoever of Her Majesty, her heirs and successors, and of all other persons whomsoever.” The object of this section was to give to the purchaser from the Court an absolute and indefeasible title to the land which the conveyance from the Court should purport to vest in him; and, having regard to the decisions: Gore v. M’Dermott (1) and In re Tottenham(2), if the conveyance purports to grant a several fishery in the place in question, in my opinion, full effect must be given to the statutory title so conferred.
Such being the machinery provided by Parliament, where estates in Court included rights of fishery in tidal waters, the Judges were placed in a situation of unparalleled difficulty. They might cither abstain from selling what was an extremely valuable property, or they might convey an absolute and indefeasible title to property of this character without possessing the means of adequately investigating such titles. They adopted the middle course of conveying such rights as previously existed where they were not satisfied that justice would be done by making an absolute and incontrovertible grant. In 1868, in the case of In re Acheson, (3), Christian L.J. said:”My own opinion is, I confessthough what I am about to say is larger than what the decision of the case calls for, and will go for what it is worth that fishery claims, especially in public waters, so long as they are disputed and contentious, are not proper subjects for sale or judicial declaration in the Estates Court. I think this fishery claim ought not to have been sold in 1863, and I think its quality and extension ought not now to be judicially declared. I think Judge Hargreave had but two alternatives fairly open to him on the notice of May, 1863either to have followed the precedent set him in 1855, by striking out the fishery, which, I think, would have been the proper course, or to have gone on himself, with such extraneous aids as he might see fit to call for, to define the hereditament. The middle course, which he took, of selling it as an unsettled claim, was, in my opinion, a wrong, if not absolutely illegal, exercise of jurisdiction.”
We have not the rental and conditions of sale in the matter, nor do we know when the contract to purchase was entered into; but the Chief Justice in his judgment has pointed out that the first instalment of purchase money was paid on 16th July, 1867, as appears by the receipt endorsed upon the conveyance itself, before this expression of opinion of Christian L.J. was given. I think that I am bound to examine the grant of 11th March, 1869, both as to the actual language used and also having regard to the practice which then existed in order to see whether it is an absolute grant by the Landed Estates Court of an absolute or indefeasible right, or whether what was conveyed was the beneficial interest enjoyed by the owner in the matter, with such title as might be shown to have been possessed by the owner.
It is true that in old grants the word “several” does not always occur, nor is it necessary to use such a word: see the observations of Buckley J. in Hanbury v. Jenkins (1). It has also been pointed out on behalf of the prosecutors that “the salmon fishery or fishery for salmon by nets, loops, weirs, or otherwise” is in its terms wide enough to exclude fishery by others than the grantees. What weighs upon my mind is the fact that if the Landed Estates Court had investigated the title to a several fishery, and, being satisfied of its validity, was about to convey, in the plenitude of its authority, an absolute and indefeasible right of fishery, it would not have used words which are referential to some particular right as it then stood, and it would not have attempted to fortify the grant thereby made with the words, “all and singular the salmon fishery and right of taking salmon of the said Thomas Conolly in and upon the said Rivers Erne and Abbey,” etc. The granting of the right, measured by reference to the former title, is quite at variance with the idea of a grant made with the full exercise of the authority of the Court, and having the full sanction of the statutory title. I am, therefore, of opinion that the Landed Estates Court took the middle course of granting the several fishery rights so far as they had valid legal existence, and that the purchaser was well aware that he had obtained a title not guaranteed under the full force of an incontestable conveyance, but one which could only be founded upon the validity of the title previously enjoyed.
In my opinion the District Justice was, on the facts placed before him, and in this view of the legal effect of the Landed Estates Court conveyance, entitled to find that a question of title was involved. Although the point was not argued, I think a more proper remedy would have been by case stated, as in the well-known authority of Legg v. Pardoe (1), where the facts proved before the District Justice would have been stated by him. This aspect of the case does not, however, arise in the view which I take of the facts; but I wish to point out that application for a mandamus is not the most convenient remedy in a case like the present.
Alton v. Pegum
[1934] IR 136
SULLIVAN P. :
In this case the defendant appeared before the District Justice sitting at Foynes in the County of Limerick to answer a summons charging “that he did on the 2nd April, 1932, at Loughgill in the County of Limerick during the weekly close time fish for salmon by means other than a single rod and line, to wit, by means of a stake net or weir situate at Loughill in the river Shannon, commonly known as the Loughill Weir, of which he, the said Thomas Pegum, was the occupier, contrary to the Fisheries Acts, 1842 to 1925.” The District Justice dismissed the summons, and at the request of the complainant stated a case for the opinion of this Court on the question whether he was right in so doing.
When the case was opened before us counsel on behalf of the prosecutor asked that the summons should be amended by charging the defendant with having failed to remove or open the weir on the date in question during the weekly close time contrary to sect. 40 of the Fisheries Act, 1842. We acceded to that application as we were satisfied that by so doing no injustice would be done to the defendant, it being admitted by his counsel that the evidence given in the District Court disclosed all the facts re evant to that charge, and that the case had proceeded in that Court, and had been determined, on the basis that the offence charged in the summons involved the offence stated in the proposed amendment.
Sect. 40 of the Fisheries Act, 1842, provides, inter alia,”that it shall not be lawful, in the sea or any estuaries or tide ways to take, kill, or fish for any salmon or trout in or by any stake . . . weir between the low water next in point of time before six of the clock on Saturday night and the low water next in point of time before six of the clock on Monday morning, but that in each of such stake . . weir a clear opening of at least four feet in width shall be made, and kept free from obstruction . . . so as effectually to allow of the free passage of salmon and other fish . . . during such weekly close time . . . and any person occupying or using any such stake, weir . . . and failing to . . . open the same as required by this Act . . . shall for every such offence forfeit and pay a sum not less than £5 and not exceeding £50. Provided always, that nothing herein contained shall be construed to render liable to any penalty any person who shall be prevented by floods, storms, or stress of weather from . . . making such openings as aforesaid during the continuance of such prevention.”
The scope and object of the section were considered in FitzGerald v. Hosford (1). In his judgment in that case Gibson J. says (at p. 395): “The object of sect. 40 is to punish, first, persons who, occupying or using the fixed engine, do not during the weekly close time maintain a clear opening as prescribed, and, secondly, persons who employ devices or contrivances to prevent the free passage of fish. The occupier is under a continuous obligation to have the passage open, and, if it is obstructed contrary to the statute, he is under a continuous duty to remove the obstruction and open the passage, the only excuse being prevention by flood, etc., a form of vis major which could not be guarded against. Each time that the occupier fails to perform this duty, the statute is infringed”; and (at p. 396) “The master’s (i.e., the occupier’s) obligation is unaffected by the fact that he entrusted the management of the engine to a servant, and that his delegate violated his orders. Whether he would be liable for unlawful action of third parties in closing the passage raises a question not necessary now to decide. It may be that the occupier is bound to watch and guard the engine, and that he might be liable for neglect in this respect; or, possibly, he may be only responsible for the direct acts of himself and his own servants.” That view of the section has been accepted as correct by counsel on both sides in the present case.
The defendant is the owner and occupier of the weir at Loughill mentioned in the summons. It was proved to the satisfaction of the District Justice that he had opened the weir at the beginning of the weekly close time in question but that during that time the weir was temporarily closed by persons who were not his servants. In these circumstances is the defendant liable to conviction for an offence against sect. 40is he amenable criminally for the unlawful act of third parties done without his assent or knowledge? Counsel on behalf of the prosecutor contend that he is; that the section imposes on the occupier of the weir an absolute obligation to open the weir and keep it open during the weekly close time. It is unnecessary to emphasise the hardship which might result from such an interpretation of the section, an occupier or his servants in charge of the weir might be kidnapped or overpowered and the weir closed by his assailants. That is a matter which we would be entitled to consider if the language of the section was ambiguous, but I do not base my judgment on any such consideration. To constitute an offence under the section the occupier must have failed to open or to keep open the weir. I think that it would be straining the language of the section to hold that an occupier who had opened his weir and had kept it open until it was closed by third parties without his knowledge or default had failed to open or keep open his weir. It may well be that, if it is proved that a weir was closed during the weekly close time, the onus of proving that the closing of the weir was not occasioned by any act or default on the part of the occupier, rests upon him. In the present case the District Justice was satisfied that the weir in question was closed by the wrongful act of third parties and that the defendant was not in default. That being so, the summons was rightly dismissed.
HANNA J. :
I agree, and have nothing to add.
O’BYRNE J. :
I agree for the same reasons.
SULLIVAN P. :
Costs to the defendant.
Little and Others v. Moylett and Others
[1929] IR 444
Johnston J.
For hundreds, probably thousands, of years, season after season, the North Atlantic has poured into all the rivers on the western seaboard of Ireland a prodigal supply of salmon, which had been fattening in the rich feeding-ground of the oceanan advantage in which Scotland and Norway equally participate and it is not too much to say that if the proper steps were taken in this country the supply could be made almost limitless. As a result of this great bounty of nature the salmon-fishing organisation along the whole of the seaboard is now one of the most important and profitable industries of the West, and an Irish Act of 1785 is almost lyrical in its recital of the national benefits that are to be derived from a further development of the fisheries on the coast. If the theory as to the homing instincts of the salmon is to be accepted, as I think it should, the fishing for salmon in the western rivers is an Irish industry in every sense of the word.
Evidence has been given that the total value of the salmon taken yearly from the Moy river amounts to about £14,000, but that the industry involves an annual expenditure of between £8,000 and £9,000, including the amounts spent in rent, rates, wages, and the like. A sum of about £855 is paid yearly in respect of rates, as well as a sum of between £80 and £90 for licence duty on weirs and nets. The income tax on the net earningsa very appropriate tax in such a caseamounts to about £2,000 yearly, whilst the annual wages bill for local labour comes to about £3,500. A sum amounting to about £1,000 yearly is paid for railway freight, and a further large sum is spent in the purchase of ice, which is bought in the locality whenever it is possible to get it. A considerable amount of capital has been invested in property, including weirs, fixed engines, nets, boats, storehouses, ice-house, offices, and other classes of property required for the successful carrying on of this great industry. The defendants, howevera few residents in the town of Ballinasay that all this must now cease, and that all subjects of the realm are entitled as of common right to fish in these waters. The defendants’ success in this action will, of course, enure for the enjoyment not merely of the people of the locality, but of every subject who in the future chooses to travel to the Moy to fish. The case, therefore, is a serious one for the plaintiffs, who claim to be the proprietors of this fishery, and for the town of Ballina as well, and may have a certain repercussive effect as regards all the fisheries in Ireland which are similarly situated.
Most of the questions that are involved in this case were decided by me in Moore v. Attorney-General (1), and I do not propose to discuss them further. There are, however, some points of difference with which I must deal.
The question, for instance, whether or not it can be regarded as a historic possibility that the Crown had put in defence a tidal river in the west of Ireland prior to 1189a question which it was not necessary to decide in the previous caseis, according to the plaintiffs’ contention now, capable of receiving a comparatively simple answer from the terms of the Treaty of Windsor, which was entered into between Henry II and Roderick, King of Connaught, in 1175. This document which, though it has received much attention from historians (2), has never, so far as I am aware, been discussed in a Court of law purported to bring Roderick under the vassalage of the Crown, with all the feudal consequences as to fealty and otherwise. The plaintiffs contend that whether or not Roderick and the subsidiary Princes of Connaught observed the terms of the Treaty, and whether or not it affected in any real sense the course of events, the fact that Roderick did actually agree to its terms renders it impossible for the defendants to allege or contend, in regard to a mere question of the existence or non-existence of proprietary rights, that by no possibility could a tidal river in Connaught have been put in defence by the Crown prior to Magna Charta. In other words, that the existence of the Treaty, in the absence of evidence that it was not implemented by domestic legislation in Connaught, or in any part of the same, is at any rate effectual to prevent the arising of the presumption of law, or mixed law and fact, upon which the defendants base this part of their case. It is unnecessary, however, for me to give any decision on this question, seeing that, as I have already decided, an appropriation by anyone prior to 1189 is sufficient to exclude the operation of Magna Charta.
The first of the long series of documents by which the plaintiffs seek to strengthen the title that they ask the Court to presume from long-continued possession is an inquisition taken at the town of Moy (Ballina) by Nicholas Brady, the King’s Escheator for Connaught, on September 22nd, 1609, by which it was found by the oath of twelve jurors of the locality that the fishing in the tidal waters of the Moy belonged to the King, his heirs and successors, as in right of his Crown of his Kingdom of Ireland. It must be borne in mind that this document, which is described by Mr. Lynch, in his admirable argument, as the plaintiffs’ root of title, and which is condemned by him as valueless for any purpose, first, because it does not allege the existence of any several fishery there in 1609, and secondly, because it does not find how the fishery came to the hands of the King, is a solemn judgment in favour of the Crown as the result of a formal trial before a Judgefor the Escheator, though his judicial work was of a specialised character, was none the less a high judicial officerand a jury in a local venue (1).It is further contended by the defendants that the phraseology used in the inquisition expresses nothing more than certain erroneous views that were current at the time as to the King’s right to the fishings in tidal waters; and, as to the point that the findings in the inquisition are defective, the case of Doe, d. Hayne v. Redfern (2) is relied upon. Lastly, it is contended that as the inquisition is valueless for any purpose the letters patent of the King, granted to Nugent, Piers and Preston respectively, are of no force and conveyed nothing. An argument on much the same lines was addressed to me in Moore v. Attorney-General (3), and I regret that this phase of the defence did not receive in my judgment in that case the specific and detailed consideration that it deserved.
The case of Doe, d. Hayne v. Redfern (2) was concerned with an inquisition of office on an alleged escheat to the Crown by reason of the death of the owner of lands without heirs. The inquisition, which was taken on July 25th, 1794, found that the owner had died without any heirs of his body or any right heirs capable of enjoying the property, but there was no finding of what person or persons the lands were held, or by what services, although the Commissioners were specifically directed to inquire as to those matters. The inquisition, therefore, contained nothing suggesting even a shadow of title in the Crown, and it was held by Lord Ellenborough, in ejectment proceedings against the persons in occupation of the lands, that a Crown demise that had been made in 1807 to the predecessors of the plaintiff was entirely inoperative, as it could only have conveyancing force by virtue of the inquisition, and the inquisition was ineffectual to give any title to the Crown. It did not suggest in the remotest way that the deceased owner had at the time of his death held the lands of the Crown in chief, and, indeed, the facts that were before the Court suggested positively that he had not.
In my opinion, the inquisition of 1609 is evidence that I cannot disregard of the King’s title to the here-ditament, as of that date, no matter what the circumstance was out of which that title arose. First, if the title arose out of an escheat for want of heirs in some deceased owner, the inquisition satisfies fully the requirement of the statute of 18 Hen. VI, c. 6, which was an English Act, but which became operative in Ireland by virtue of Poynings’ Law. It is true that it does not set out the particulars of whom the previous owner held the lands, nor the services by which they were held; but I know of no statute or law in Ireland which at that time required that to be done. The statute of 2 & 3 Ed. VI, c. 8, sect. 8, upon which Redfern’s Case (1) really was decided, was an English Act, passed after Poynings’ Law was enacted, and the provisions contained in it were not re-enacted in Ireland until 1639 (15 Car. I, c. 4), long after the inquisition of 1609 had been found. The Act of 15 Car. I specifically provided that the new legislation should not affect any inquisition or office which had been previously taken or found, or prejudice the title of the King or of any other person holding under or by virtue of any such inquisition or office. I may note in passing that the old procedure as to inquisitions of office has been re-enacted in modern language by the Escheat (Procedure) Act, 1887.
Secondly, the inquisition of 1609 was equally good and effectual if the occasion for the same was an escheat of lands by reason of forfeiture on the attainder of the previous owner for treason or felony, and for the same reasons as operated in the case of an escheat for want of heirs. But it is necessary to bear in mind that, in regard to such escheatsnamely, those taking place as a result of forfeitureno inquisition of office at all was, since 27 Eliz. c. 1, sect. 9 (33 Hen. VIII, c. 20, in England), necessary to pass the lands of the attainted person to the Crown: it was provided by the Act of 27 Eliz. that the lands should effectually pass without any office or inquisition whatsoever.
Redfern’s Case (1) and the legislation of Henry VI and Edward VI were relied upon strongly by the defendants in Devonshire v. Neill (2), and this is how Palles L.C.B. succinctly disposed of the contention: “The statutes of Henry VI (8 Hen. 6, c. 16, and 18 Hen. 6, c. 6) did not render an inquisition necessary in cases in which before those statutes it would have been unnecessary. The mischief pointed at was not the Crown being able to grant without inquisition, but being enabled to grant to third persons lands seized under inquisitions before the persons in possession had an opportunity of putting in their claimthat is, before the return of the inquisition. Both statutes referred only to lands which had at one time been vested in subjects.”
The inquisition is evidence of the position of affairs at the River Moy in 1609 as found by the verdict of a local jury, just no more and no less, namely, that the high sea or great Irish ocean flowed into the River Moy from the north to the south as far as the ford of the Abbey of Ardnaree, and from thence again reflowed; that there at certain times of the year salmon, herrings, and other kinds of fish were taken; that within the said space of the flux and reflux of the sea the fisheries belonged altogether to the King, and his heirs and successors, in right of his Crown of his Kingdom of Ireland; and, lastly, that the yearly value of the same, in addition to all reprises, was the sum of twenty-six shillings and eightpence. Two years later a grant of this fishery, with other hereditaments, was made by letters patent of the King, dated June 26th, 1611, to Nicholas Nugent, Lord Delvin, to be held in free and common socage, subject to various rents therein set out, including a rent of £5 15s. in respect of the fishery. The grant followed pretty closely the findings in the inquisition, and contained the usual clause setting forth every possible source and occurrence from which the King’s title might have come. It would appear, from a Crown rental of 1612, that Nugent assigned the fishery to Sir Henry Piers, to whom, on June 15th, 1612, a grant by further letters patent was made on the same conditions and at the same rent.
There is no evidence of anything happening in regard to the fishery for forty-nine years, during which time the Civil War and the Protectorate took place in England, and the consequent trouble and turmoil in Ireland; and then, following the restoration of the Stuarts, a Crown grant, reciting that certain fishings in the River Shannon and in the sea in and belonging to Connaught had devolved upon the King by reason of “the delinquencies, forfeiture, attainder and rebellion of the several proprietors,” was made in 1661 to Sir George Preston and his heirs, assuring to him, inter alia, “all and singular the fishings in the sea in and belonging to Connaught” and all remainders and reversions therein, to be held in free and common socage. subject to a rent of £5 “over and above all former rents due to us . . . out of the said premises or any part or parcel thereof.”The grant contained a clause declaring it to be good and effectual in law “notwithstanding any defect in not naming or not reciting the nature, kind or quality of the aforesaid premises or any part or parcel thereof”; but the description of the parcels intended to be granted was made more specific in a subsequent grant eight years later.
The Act of Settlement of 1662 was framed for the purpose of vesting the forfeited properties of 1641 in the Crown in trust, and confirming the ownership of certain other lands, and this was to be worked out by Commissioners specially appointed to carry the trusts into execution under special instructions: Knox v. Earl of Mayo (1). The Act, or rather the King’s Declaration, which is enacted as part of the Act, provided that
the lands of such persons, as should not be adjudged to be innocent persons, should be deemed to be forfeited to the Crown as from October 23rd, 1641; but the lands of a number of persons were specially dealt with. Sect. 157 provided that nothing in the Act was to prejudice the grant which had been made to Preston a few months previously of “the forfeited mills, weirs and fishings upon the river of Shannon, or upon any part thereof, and upon the sea coast in the province of Connaught and in the county of Leitrim.” It is argued on behalf of the defendants that, because the section provides that the grant”shall be of such and no other force and effect than as if this Act had not been made,” the effect of the statute, so far as Preston’s grant was concerned, was negligible. I do not agree. The section is of great value to the plaintiffs as a Parliamentary recognition that the grant had been made by the Crown to Preston and his heirs; that, whatever its operative force might be, it was a valid subsisting grant when the Act was passed, and that the operation of the deed was not to be prejudiced by the vast re-settlement of land that the legislation contemplated. Sect. 55 of the Act of Explanation (17 & 18 Car. II, c. 2) gives further assistance to the plaintiffs. It provides that certain persons (expressly including Sir George Preston) should “hold and enjoy to them, their heirs and assigns, all and singular the lands, tenements and hereditaments in and by the former Act settled, granted, disposed and confirmed, or mentioned . . . and not already decreed away by such decrees as are herein confirmed.”I think that these two sections amount to a clear statutory confirmation of the grant to Preston.
The further grant made on May 29th, 1669, has a twofold importance. First of all, it declares expressly that sects. 157 and 55 of the Acts of 1662 and 1669 respectively amounted to a statutory confirmation of the earlier letters patenta contemporaneous exposition which cannot be neglectedand, secondly, it defines the words, “the fishings in the sea in and belonging to Connaught,” by setting out those fishings with particularity, and the parcels so set out include “the salmon fishery, pike, eel and other fishing . . . of and in the river of Mayne (Moyne) in the county of Sligo in that province.” The grant is expressed to be made “to render our said former grant or intended grant more effectual and beneficial to him, the said Sir George Preston, than at present the same is.”
I do not intend to deal very specifically with the rest of the plaintiffs’ title. Preston appears to have assigned the Moy fishery on December 2nd, 1673, to Sir Arthur Forbes and William Hamilton for valuable consideration, and they, on December 17th, 1675, assigned it to Sir Arthur Gore. In that deed an agent was appointed by the grantors to enter upon the fishery and take possession of the same, and hand over seisin and possession to Gore; and there is an indorsement on the document that possession was actually given at some time in 1678. This very indorsement was held by Monahan C.J. in 1858, in Little v. Wingfield (1), to be properly admissible as evidence that possession of the said fishery was delivered as therein stated. Gore enjoyed the rents and profits till well into the eighteenth century, making leases, and otherwise putting the property to a profitable use, and I do not propose to occupy valuable public time by setting out the dry and uninteresting details of the remaining portion of the title, which is not seriously controverted by the defendants, and which raises no question of law or fact which I am called upon to discuss.
The oral evidence that was given on behalf of the plaintiffs affords proof of a most conclusive character that this fishery, both in the tidal and non-tidal waters, has been carried on in the most open and undisguised manner for well over a hundred years by the plaintiffs and their predecessors. I think, however, on the whole, that the “Moy Cash Book, 1835 to 1839,”is not admissible either as an admission against interest or as evidence of reputation, and that the ruling of the Chief Baron in Devonshire v. Neill (2) is more applicable to that matter than the ruling in Malcomson v. O’Dea (3) as to the “Assembly Book” of the Limerick Corporation.
A peculiarly interesting feature of the case is the fact that the two grants of letters patent and the two statutes of Charles II, which conveyed and confirmed to Preston the fishings in Connaught, included the great Lax Weir at Limerick, and, therefore, this portion of the plaintiffs’ title was investigated and established in the proceedings in Malcomson v.O’Dea (3). In estimating the force and effect of these ancient Crown grants, it is always necessary to remember that, however lengthy they may be, the whole history of the title is scarcely ever related. Thus, the recital of title in the Crown to the Limerick fisheries falls far short of what might have been set out if the draftsman had been so informed. It appears from the report of Malcomson v. O’Dea . (3) that there was actual documentary evidence in existence that the Crown had been making dispositions as early as the reign of John which affected the Lax Weir and the Limerick fisheries. There was a dispute in 1674 between Preston and the Corporation as to the fisheries there; but the litigation was compromised by the Corporation purchasing from Preston his rights under the letters patent and taking a reconveyance in 1684, both parties apparently accepting the view that the Preston grant was unassailable, having been”confirmed by an Act of the Irish Parliament” (see pp. 598, 600, and 612 of the report in 10 H.L.C.). It is reasonably plain, therefore, that the Preston grant must have formed part of the title upon which the plaintiffs relied, and by means of which he succeeded in Malcomson v. O’Dea (3).
A very remarkable piece of litigation took place in 1824 in the action of Little v. Gore (1), in which the predecessors of the present plaintiffs succeeded in establishing their title to a several and exclusive fishery in the Moy river, and judgment was entered for them on April 21st, 1826. The bill contained a large number of counts, claiming in respect of trespasses by the defendant at different places on the river in respect of both a several and a free fishery. The defendant traversed the title of the plaintiffs and pleaded specially, first, leave and licence, and secondly, the defence that the Moy was a public, navigable river in which the tide flowed and reflowed, and that the defendant as a subject of the realm was entitled as of common right to fish therein. The plaintiffs in their replication set out in detail the whole of their title since Lord Tyrawley’s demise of 1739 down to the date of the alleged trespass, as that title has been proved in the present action. The defendant filed no rejoinder, and the action was tried at the Sligo spring assizes in 1826 on an issue as to the assessment of damages. A verdict for £1,500 was found. Those proceedings do not, of course, amount to anything in the nature of estoppel, but they are evidence of the highest character in favour of the plaintiffs, especially in view of the publicity of a public trial in a local venue when such a large sum as £1,500 was recovered. The case had further publicity in the Courts in Dublin (see Batty, 236, 444).
The claim and the alleged title of the plaintiffs were again involved in litigation in 1858, when an action was brought by the plaintiffs’ predecessors against Colonel Wingfield, who owned the lands adjoining the river at a place called Scurmore, for damages for trespass by fishing at that place: Little v.Wingfield , (2). The plaintiffs claimed to be the owners of a several fishery in the whole of the river, and in that way the very title which is being investigated now was then the issue. At the trial at Sligo in March, 1858, the plaintiffs relied upon the inquisition of 1609, the grant to Lord Delvin and the two regrants to Sir George Preston. All these documents were held by Perrin J. to be relevant and admissible. Evidence, however, of a persuasive character was given on behalf of the defendant that he and his servants had fished at Scurmore, without any interruption or objection on the part of the plaintiffs, for up-wards of 60 years, and the Court of Common Pleas held that Perrin J. was wrong in not directing the jury that on that evidence they were at liberty, though not obliged, to presume a grant of a several fishery in the place in question from the Crown, or, if not from the Crown, from some person having the power and the right to make such a grant, some person such as Sir George Preston, the patentee in the grant of 1661, or a person claiming under him prior to the lease of October, 1788, or from the lessors in that lease, or some person deriving under them. Accordingly, a new trial was ordered. The matter then came before the Exchequer Chamber in January, 1859, on a writ of error by the plaintiffs, when the decision of the Court of Common Pleas was upheld, Richard, B., dissenting on a point of practice which did not affect the general result (1). Greene, B., in a particularly illuminative judgment, considered that probably, in view of the unbroken chain of evidence presented by the plaintiff, “there was no ground for presuming a grant from the Crown” (i.e., to the defendant of a several fishery at Scurmore), “but that there was a question for the jury as to a grant by some other sufficient grantor.” These proceedings again brought to the notice of the public, in a most impressive manner, the nature of the plaintiffs’ claim and the evidence of their title, and amounted to a decision by ten out of the twelve common-law Judges in favour of the very part of that title which is contested in the present action. It is not surprising that for seventy years no one has had the temerity to doubt the plaintiffs’ right to this fishery.
There is one other class of evidence in the case to which I wish to make a general reference, namely, the evidence as to such matters as the delimitation of the tidal waters, the arrangements for a free gap, the licensing of fixed nets and engines, and the valuation of the fishery for taxing purposes. It is contended that this class of evidence is not relevant to the issue whether or not the plaintiffs are entitled to a several fishery in these waters. I cannot accede to that contention. At the very lowest, all these matters are evidence of possession and occupation by the plaintiffs; but, taken in conjunction with the huge mass of modern legislation dealing with Irish fisheries, I think that they amount to more than evidence of mere possession. For centuries the plaintiffs and their predecessors have in the full light of day been working the fishings in the Moy river as a several and exclusive fishery, employing local labour for the purpose, issuing licences to fish to large numbers of persons yearly, maintaining a weir in the river with a statutory free gap, using fixed nets and engines, fishing in the river from boats owned by them, buying ice in the locality for the purpose of the industry, and occupying storehouses and offices which are situated quite close to the fishery. Whilst that highly-organised industry has been proceeding, the Legislature has been passing legislation for the economic working of the fisheries and the preservation and culture of the fish, by providing for free gaps and close seasons, regulating the construction and use of weirs and fixed engines, making provision for the care of the spawn and the fry, establishing a valuation of the fisheries in order that they may, with other classes of property, contribute to local rates and national taxation, and setting up local authorities and officials in the various districts who will be responsible for the due observation of the regulations. This legislation has given rise to a great volume of what I may call subsidiary or administrative legislation in which the Moy fishery has been recognised time and again as a subsisting and legal several fishery. The various certificates and licences which have been tendered in evidence on behalf of the plaintiffs, therefore, amount to a public recognition of a very remarkable kind of the plaintiffs’ title. It is not necessary to set out in detail the numerous cases and statutory enactments which support this conclusion; nor need I make any comment on the fact that if the plaintiffs have no title, as the defendants allege, they and their predecessors, besides doing a grievous wrong to all the subjects of the realm, have for a very long time been committing serious breaches of the law affecting fishing and fisheries and the use of tidal waters for which they have never been made criminally amenable.
As regards the fishery and fishings in the non-tidal portion of the river, as set out in paragraphs six and seven of the statement of claim, the question is of a comparatively simple character. The defendants have traversed the allegations in those paragraphs, but they have made no claim of right to fish there, and they have not suggested in argument that the evidence of title which has been given on behalf of the plaintiffs is in any respect defective. It is not for me to search for defects that the defendants have been unable to discover.
I desire to say in conclusion that the success of the defendants in this action would mean the end of this valuable industry in the west of Ireland, and would be disastrous for the community as a whole. Such a result would injure not only the plaintiffs, as the proprietors, but numerous other classes in the community, including a large body of salaried officials and wage-earners, railway authorities and servants, licence-holders, ratepayers, and (seeing what a considerable sum is paid out of the profits for income-tax) even the general taxpayer of the country. There can be no doubt, too, that the cessation of the organised protective work of the plaintiffs would ultimately have an injurious effect upon the river as a place of resort for fish; and it is obvious that all these matters would sooner or later react disastrously upon the trade and prosperity of Ballina. I have no hesitation in saying that the whole locality is deeply concerned in the success of the plaintiffs.
If I were sure that the defendants would be able to pay the very considerable costs that the plaintiffs have incurred in this litigation, it would be unnecessary for me to say more; but as I am by no means sure that they will be, I must express my sense of regretmy very deep regretthat the plaintiffs have been again called upon to prove their right to this property in litigation which was wholly unnecessary and against a claim which was wholly without foundation.
There must, therefore, be judgment for the plaintiffs, with costs, in the terms of the statement of claim.
MEREDITH J. :
20 April
The claim of the plaintiffs is for a declaration that they are entitled to an exclusive right of fishing for salmon and trout in a certain portion of Lough Melvin, in the County of Leitrim, opposite the See lands of Rosinver, and also for a declaration that they are entitled to the bed and soil of the said portion of the Lough, and, as ancilliary relief, they ask for the usual injunctions.
Their entire claim admittedly depends on their title to the bed and soil of the said portion of the Lough. A good title to this portion of the Lough the plaintiffs’ predecessor in title, James Johnston, acquired, as was admitted at the hearing, under a conveyance, dated the 20th January, 1841. The devolution of the title to the plaintiffs was also admitted at the hearing as, indeed, it had to be, in order to sustain the one defence on which the defendants relied. This defence is set out in par. 8 of the amended defence and is as follows:”By way of further defence the defendants say that the said holdings were duly vested in the former tenants, now the proprietors, of purchased holdings on the said estate, and were duly registered accordingly, pursuant to the Local Registration of Title (Ir.) Act, 1891, and by virtue of the said purchase agreements, vesting orders thereon, and of the said registration, the waters and bed and soil of Lough Melvin to the middle line of the said Lough adjoining the respective holdings abutting on the said waters and/or the fishing rights in the said waters passed to, and became vested in, the said proprietors, subject only to a right exclusive of the said proprietors to the sporting rights in the said holdings for the lifetime only of the said James Johnston.”
All the portion in question of the bed and soil of the Lough abuts on land vested in the defendants, or some of them, as the result of the Land Purchase proceedings, and the vendor being the owner of that portion of the Lough, and that portion not being expressly excluded, the defendants rely on a well-known rule of construction as authority for which I was referred to Mickletwait v.Newlay Bridge Co. (1) and several other cases. I shall content myself with citing the statement by Fitzgerald B. in Dwyer v. Rich (2):”The authorities adverted to in the course of the argument establish, as a general rule of construction, that where land adjoining a highway or inland river is granted, the prima facie presumption is, that the parties intended to include in the grant a moiety of the road or river bed, as the case may be; and that such general presumption ought to prevail, unless there is something to indicate a contrary intention. As this is a rule affecting real property it ought not be questioned or criticised on light grounds; and the authorities seem further to establish that this general presumption is not to be considered as rebutted by this circumstance alone, that the subject of the grant is described as abutting on or bounded by the road or river, or that the quantity of land specifically described as granted is satisfied without including the half of the road or river, or that the grant refers to a map or plan in which the half of the road or river is not included.” That such descriptions by words or by a map could not rebut the presumption is evident, since the mere fact that the descriptions show that the land granted extends as far as the edge of the river or road is in itself sufficient to raise the presumption.
That this presumption applies to lakes as well as to rivers and highways ( Johnston v. O’Neill (1)) was not disputed by the plaintiffs, and, in fact, was common case, since it was only on the strength of the presumption and its application to lakes that the plaintiffs could show that they themselves acquired a title to the portion of the bed and soil of Lough Melvin under the conveyance of 20th January, 1841.
So much being necessarily common case, the dispute was narrowed down to two questions, viz.:First, does the presumption apply to the “agreements,” “vesting orders”and “registration” referred to in par. 8 of the defence? And, secondly, if the presumption can be so applied, is the presumption in fact rebutted by evidence of contrary intention? That the presumption could be defeated by evidence of contrary intention was, of course, not disputed.
For the purpose of considering how the presumption could apply to the purchase agreements in question in this case I think it will be helpful to consider how it would apply to an ordinary conveyance which contained an express recital that the purchaser was in occupation of certain lands thereinafter more particularly described and intended to be thereby conveyed under a certain lease or tenancy agreement of such and such a date, and that the purchaser had agreed with the vendor for the purchase of the same, or of his said holding, and which, in the operative part, contained a description of the lands, with reference to an endorsed map, adding, however, the words”as now in the occupation of” the purchaser under the said recited lease or agreement. Now, suppose that in such a case the description of the lands together with the endorsed map, were such as, taken by themselves, would raise the presumption, but that the bed and soil of portions of a lake that would be taken in by application of the presumption were undoubtedly not in fact in the occupation of the purchaser and had not been included in the former lease or tenancy agreement. In such a case it is clear that the presumption would be rebutted, or, perhaps it might be more correct to say, would be excluded ab initio by the controlling words incorporated into and forming part and parcel of the entire description.
Having regard to the provisions of the Land Code the description of the lands to be purchased in the purchase agreements in question must be construed in the same manner as the descriptions in conveyances in the form I have mentioned, and in fact they expressly refer to the subject-matter of the agreement as a “holding” and recite that the tenant is in occupation. Consequently no application of the presumption to the mere description of the holding or the statement of the area could operate to include in the agreement what was not included in the holding or to exclude therefrom what was included. And, in point of fact, it appears from the certificate and fiat endorsed on the agreement in the case of Bryan McGowan’s holding that the statement of the area had subsequently to be corrected on investigation. The correction was made because the holding in fact contained some bog land that had been omitted from the statement in the agreement. So far as the defendants have to rely on their agreements for purchasethat is, so far as they obtain no assistance from any other documenttheir case must depend upon the portion of the bed and soil of the Lough claimed having in fact formed portion of their holdings.
What, then, is the evidence on this point? Mr. FitzGibbon in his very able argument sought at once to close down investigation of the actual facts on this point by appealing at once to the presumption. But that is precisely what cannot be done. The description must be taken as a whole, and, as I have shown, it must be construed as controlled by a reference to what constituted the holding. Consequently, so far as attention is confined to the agreements, an investigation of what in fact constituted the holding must be undertaken. If such an investigation is to be excluded it cannot be by the application of the presumption to the agreements but only by reference to something subsequent, such as the fiat or the registration, alleged to decide the matter conclusively.
Now, as to the evidence of the actual fact, I think Mr. FitzGibbon was right in contending that the mere fact of the plaintiffs or their predecessors having been in enjoyment of the fishing rights on the portion of the bed and soil of the Lough in question since 1841 was not conclusive, as they might have enjoyed those rights either as owners of the portion of the bed and soil of the Lough or as aprofit à pendre exerciseable over lands comprised in the holdings of the tenants. I have had the advantage of reading the judgments delivered in the Supreme Court in Montgomery v. Joyce (1) and a passage in the judgment of Mr. Justice Murnaghan makes it clear that the mere fact of the exercise of such rights leaves the origin and foundation of the rights ambiguous. Mr. Justice Murnaghan said:”The possession by the tenant of the bed and soil of the river as part of his holding is quite consistent with the landlord’s right of fishing or several fishery, and the position as to that is not affected by the injunction order obtained by the landlord, since no question arose in that action as to the title to the bed and soil of the river.”
But in the present case I consider that I must hold that the plaintiffs exercised their fishing rights by virtue of ownership of the bed and soil for the following reasons. As I have pointed out already the plaintiffs’ title is common case, and on the evidence before the Court I must take the plaintiffs’ title to the fishing rights to have been founded originally on acquisition of the bed and soil under the conveyance of 1841. That conveyance conveyed the bed and soil, and that is the proof the plaintiffs give of their title both to the bed and soil and to the fishing rights, and it is sufficient evidence, and the only evidence in the case. That evidence could, no doubt, be disturbed by the defendants showing that they became entitled to the bed and soil of the Lough and granted the rights as a profit à prendre, but the onus of showing such an origin would be on the defendants once the plaintiffs have given their proof of title. In this connection a passage from the judgment of Mr. Justice O’Connor in Bolger v. Daly (2) is relevant:”Once an existing state of facts is proved these facts will be presumed to have existed and continued until there is evidence to the contrary limiting the period of time” (p. 47).
The plaintiffs having given evidence that they acquired the bed and soil of the portion of the Lough in question under the conveyance of 1841, which title to the bed and soil at once carried with it the fishing rights, the onus does not lie on the plaintiffs to negative, but on the defendants to prove, grants of the rights as a profit à prendre, and it is clear from Wickham v. Hawker (1) (approved in Durham and Sunderland Railway Co. v. Walker (2)) that the defendants would have to rely on such grants. This is not a case of the plaintiffs coming in to prove their title to the bed and soil of the Lough by proving that they have exercised the fishing rights; they are only seeking to show good title to the fishing rights by proving their title to the bed and soil under the conveyance of 1841. As to casual acts proved on the part of the tenants the observations of Holmes L.J. in O’Neill v. Johnston (3) apply, and nothing can be inferred from such acts.
So far, then, as the position is to be determined by reference solely to the agreements I must conclude that the portion of the bed and soil of the Lough in question did not form part of the tenants’ holdings and consequently was not included in the agreements. This conclusion is borne out by all the probabilities of the case. If the landlord was to retain the fishing rights, which alone gave value to the bed and soil, there would be no sense in not doing so by retaining the bed and soil, instead of first parting with the bed and soil, which would be of no value to the tenants and then getting the rights back by grants of the profit à prendre. Mr. FitzGibbon contended that the bed and soil of the Lough might be left out of the “Pink Schedule” since without the fishing rights it was of no value. Why, then, should it ever have been let to the tenants when the only effect of such letting would be to create trouble as to the fishing rights?
Further, it is difficult to suppose that it can have been the intention of the agreements that the vendors should transfer the valuable fishing rights to the tenants whose holdings happened to abut on the Lough, and to transfer them without the transfer being in any way reflected in the purchase price.
Despite the ingenuity of the legal arguments put forward, to hold that the presumption, if it applies at all, is not rebutted by evidence of contrary intention drawn from all the circumstances of the case would seem to me an extraordinary conclusion. And, indeed, it would appear that it was only when the amended defence came to be drafted that the defendants first thought of making the case on which they now exclusively rely. Finally, the “Pink Schedule” is certainly evidence of what was comprised in the holding. The description of the holding contained in that Schedule is given for purposes that to my mind necessitate the description being a precise and factual description, and not a mere conventional description, which would permit of an undetermined area several times the size of the holding being included on the strength of a mere maxim of construction. This view seems to me to be in accord with the several references to the descriptions in the “Pink Schedule” to be found in the judgments delivered in the Supreme Court in Montgomery v. Joyce (1).Similar observations seem to me to apply to the estate map lodged with the purchase agreements.
Accordingly the defendants are driven on from the purchase agreements to the fiats and certificates endorsed on the agreements. Mr. FitzGibbon, if I understood his argument aright, relied on the description contained in these fiats and certificates to determine the extent of the holding, and resorted to the presumption for the purpose of ascertaining the result and excluding independent enquiry as to the precise extent of the holdings. But there seems to me to be a fallacy in that line of reasoning. For either the description in the fiats and certificates is a precise and factual description to which the presumption cannot be applied, or it is a mere conventional description that relies on the maxim of construction which applies the presumption. On the first alternative the bed and soil are at once excluded. On the second alternative the description not being necessarily precise but admitting of the application of the presumption, the question of whether the presumption in fact is rebutted or not is at once opened up. Consequently on this alternative we are back again to where we were when considering the purchase agreements, and must ascertain whether in fact the bed and soil was included in the holding or not. The result then becomes the same as when the position under the agreements was considered. I have no doubt, however, that the first of the two alternatives is the correct one to adopt, and that the description of a holding contained in the fiat and certificate endorsed on these purchase agreements must be taken to be a precise and factual description, and not a mere conventional description which by operation of the maxim of construction in question might take in an unspecified and indeterminate determinate area. In the fiat on the agreement of Bryan McGowan the fiat states that the description of the holding has been amended and has been correctly described in the schedule to the certificate. This correct description must be a precise and a factual and not a mere conventional description.
It remains to consider the effect of the description contained in the folio and registry map which in no case includes any portion of the bed and soil of the Lough, unless the presumption can be applied to that description and is not rebutted. In this connection the first question that arises is whether the inclusion of the portion of the bed and soil of the Lough is not to be regarded as a question of the extent or boundaries of the lands registered, in which case, under sect. 55 of the Local Registration of Title (Ireland) Act, 1891, the register would not be conclusive. It would certainly seem strange to treat the question of the inclusion of a large portion of the bed and soil of the Lough as merely one of boundaries, as in some cases this would result in the holding being made to consist of eight or nine tenths boundary. Nevertheless it must be remembered that the presumption relied on is in its nature and origin a presumption relating to the extent or boundary of land granted, and it may be argued that when the presumption was applied in the case of land abutting on a lake it must be regarded as continuing to apply as a question affecting boundary, particularly having regard to the practical difficulty of precisely determining and delineating on a map the exact portion of the bed or soil of an irregularly shaped lake that should be regarded as included in accordance with the presumption. As a matter of geometry and surveying the boundary might be drawn in a number of ways so as to satisfy the conditions. A similar difficulty arises in the case of lands vesting in adjoining owners under sect. 127 of the Land Clauses Consolidation Act, 1845. If the matter were res integraperhaps the most satisfactory view would be to consider the whole area in question to vest in the adjoining owners as tenants in common of undivided shares in proportion to their respective privileges. But it is not necessary to decide whether the question is merely one of boundaries or not. For if it is, then the registration is not conclusive, and we are driven back along the line already travelled to the primary question of whether the portion of the bed and soil formed part of the holding of the purchasing tenant. If the question is not one of boundary or extent then the description is conclusive either as a precise factual description or as a conventional description raising the presumption. In the former case the defendants’ claims are met by the actual descriptions, in the latter case the presumption is once again rebutted by the fact that the bed and soil has been found on the evidence not to have been included in the holdings.
I may add that on the argument for the defendants the registry map, folio, fiat, and “Pink Schedule,” though intended to give precise descriptions, would all be identical in their description whether the bed and soil of the Lougha very considerable areawas intended to be included or not, for in both cases the description would show nothing as to the bed and soil. That would be a surprising position having regard to the purpose in view. At least there should have been some note on the folio, if not delineated on the map, of the bed and soil of the Lough that had been intended to be included.
The net result is that the defendants’ claim to a portion of the bed and soil of the Lough is met, whatever view is taken of any doubtful points, either by precise factual descriptions or else by the presumption relied upon being rebutted by the fact that the portion of the bed and soil of the Lough claimed did not form part of the tenants’ holdings. And that fact I have found on the strength of the plaintiffs’ affirmative evidence of original acquisition of the rights claimed by virtue of a conveyance of the bed and soil, the effect of which evidence has not been disturbed by any affirmative evidence of the rights having come to be exercised under grants by the tenants as profits à pendreto be exercised over their holdings.
The plaintiffs have accordingly established their title and are entitled to the declarations and injunction claimed, together with the costs of the action.
Little and Others v. Cooper
[1937] IR 1
Johnston J.
During the hearing of this case a discussion took place as to the nature and extent of the population in the twelfth century of the locality through which the River Moy flows, and it was suggested by some of the witnesses for the Attorney-General that the population was so scanty and the food requirements of the district so slight that it was extremely unlikely that a regular fishery, carried on for purposes of profit or to meet economic necessities, could possibly have been in operation in such a place, in the reign of King John. This is, of course, a matter which is incapable of definite proof; but I think that the probabilities are the other way. There must always have been a plentiful supply of salmon passing up the estuary to the healthy spawning ground in the lakes of County Mayo. The estuary was designed by nature as the outlet to and the inlet from the sea for the whole of north Mayo; and we know that before the days of railways and stage coaches, the sea was, as a highway for traffic, a great deal more popular and useful than it is now. We know that there was a church at Ardnaree from the earliest times and, in all probability, a castle as well, and these institutions connoted human beings and social life. Further, we know as a matter of history that, after the Treaty of Windsor in 1175, there was very considerable coming and going on the part of both the Anglo-Normans and the Irish in north Mayo and Sligo, and I think that it is not improbable that in the latter part of the twelfth century the district of the estuary and inland as far south as the Abbey of Cong was a great deal more populous and busy than it was in latter times. If circumstances had been more propitious the town of Ballina might, as a result of the physical conditions of the country, well have been a Galway or a Waterford, or even a Belfast or a Liverpool.
There is actual evidence of a positive character that a fishery had been carried on in the Moy estuary for more than three hundred years, carried on by persons claiming the right to do so, and recognised for hundreds of years by the fishing authorities, by the rating authorities, by the financial authority of the country (which has successfully claimed both quit-rent and income tax in respect of it in the past), by the Legislature, and even by the public itself; and I am satisfied (as I was satisfied in 1929 in Little v. Moylett (1)) that the plaintiffs have proved a good title to that fishery as from the year 1609, when the Moy Inquisition took place and it was found by a local jury that the fisheries there belonged altogether to the King and his heirs and successors in right of his Crown and Kingdom of Ireland. The Case of the Royal Fishery of the Banne (2) was not heard until late in 1610 (Mich. 8 Jac.) and the Moy Inquisitionmore than a year earlier could not be said to have been affected by anything that was said in that case; but, in any event, the inquisition is indicative of the existence of a fishery at Ardnaree as early as 1609. It sets outand this is a point of importancethat the yearly value of this fishery, besides all reprises, was twenty-six shillings and eightpence. It was followed by the royal grant of the fishery to Nicholas Nugent in 1611, and by the charter to Sir George Preston, in 1661. The grant to Nugent included various denominations of land and other hereditaments, and it was set out, in a most compendious way, that all the premises were granted to him “in as ample manner and form as all those or any parcel thereof have come or ought to have come to our hands or to the hands of any of our progenitors or ancestors, Kings or Queens of England, by reason or pretext of any exchange or perquisite or of any gift, grant, confirmation, or of any attainder, or forfeiture or escheat, or of any Act or Acts of Parliament, or by reason of any lawful prescription or custom or in right of our Crown or ancient inheritance or by whatsoever other legal manner, right or title above recited, or not recited, or ill recited, or in our hands now are.” The Attorney-General, who alone in the present case, has contested the plaintiffs’ claim, does not in any way controvert the plaintiffs’ modern title, and it must be taken as having been established beyond question or doubt. The question how the Moy fishery may have come back into the hands of the Crown in 1609by escheat or otherwiseis dealt with in my judgment in Little v. Moylett (1), and I need not repeat what I said then.
The fact that this fishery has been in existence for 327 years or longer is one of tremendous importance in this case, one that cannot be lightly treated as of negligible consequence. We find the plaintiffs and their predecessors openly and in full view of the public and of a long succession of Attorneys-General using and claiming this fishery as a several fishery during the seventeenth, the eighteenth and the nineteenth centuries, throughout the troubles of the Commonwealth period, the reign of James II. in Dublin, the period of Grattan’s Parliament, and the period of the Parliament of the United Kingdom of Great Britain and Ireland, and no one ever, so far as I am aware, dreamt of contesting their claim until a considerable number of years after the establishment of the Irish Free State. The matter involved in the case of Little v. Gore (which regrettably has not been reported, although there are references to the litigation in Batty at pages 236 and 444) was really not contested at all, as the defendants appear to have run away from the claim that they had put forward and the litigation ultimately resolved itself into a mere assessment of damages. The litigation in 1858 in Little v.Wingfield (2) arose out of a dispute between two parties, both of whom asserted that the fishery in the estuary was a several fishery, the only question being one as to who was the owner. Those proceedings, which were of a lengthy and widely advertised character, first at the Assizes in Sligo in the spring of 1858, then in the Court of Common Pleas in Dublin and finally in the Court of Exchequer Chamber, “again brought to the notice of the public, in a most impressive manner, the nature of the plaintiffs’ claim and the evidence of their title.”
I cannot find, therefore, that the claim of the plaintiffs and their predecessors ever was disputed from 1609 until in the year 1927nearly three centuries and a quarter later certain persons entered upon the fishery and claimed a right to fish there as members of the public. In the action which the plaintiffs then brought to establish their rights the defendants pleaded that the fishery was not one that had been put in defence previously to Magna Charta, and that by no historic possibility could it have been such, and after a full hearing (the defendants being represented by two eminent senior counsel and a junior counsel) I rejected all the defences advanced, and on June 12th, 1929, gave judgment in favour of the plaintiffs’ title. The defendants and their counsel acquiesced in that result, and nothing happened until four years later, when the Supreme Court gave judgment in the case of Moore v.Attorney-General (1), and then a number of unauthorised persons entered upon the fishery and began to fish there in defiance of the order of this Court.
It seems to me, judging from the litigation that is now pending in the Irish Free State as to fishery rights in arms of the sea, that a great deal of popular misconception exists as to the effect of the decision in Moore v. Attorney-General (1). It seems to have been regarded as the establishment of the broad abstract proposition that a several fishery, in an arm of the sea, is illegal, unconstitutional and impossible, whether it arises under and by virtue of a royal charter, an Act of Parliament, prescription or otherwise; and, following that decision, an immediate dash was made by members of the public to interfere with the proprietorial fishing rights of persons along the whole western seaboard of Ireland, including an incursion into the Moy fishery, which was protected by the order of this Court, and one into the Ballisodare fishery, which existed by virtue of a modern Act of Parliament. Of course the learned counsel who appeared for the Attorney-General and the special defendants in Cooper v.Attorney-General and Others (1) were under no misconception as to the effect of the decision of the Supreme Court, and they carefully guarded and limited the points that they made; but there can be no doubt that the conduct of the special defendants, or of those who were behind them, advising and encouraging them, was actuated by some such misconception as I have indicated.
There was, however, no grounds and no reason for such a misconception, because the learned Judges of the Supreme Court were very careful to make it absolutely clear that their decisionwhich was in essence a decision as to a question of factwas one in respect of a claim to a several fishery in the O’Donnell country in County Donegal and that it was based upon the actual evidence that was then before the Court. In the judgment of the Chief Justice he says (at p. 62): “It is a matter of historical knowledge that Tirconnaill was not conquered by England for almost four hundred years after the death of Henry II.”FitzGibbon J., in his judgment, said (at p. 82): “The case law upon the subject in England, of which there is an enormous volume, turns in the main upon the sufficiency of the evidence in each particular case to establish the existence of an exclusive right of fishing at a date prior to Magna Charta.” And again (at p. 85): “The defendants have, however, undertaken the burden of proving that no several fishery did, or could under the Irish law which prevailed in Donegal or Tirconnaill until the reign of Queen Elizabeth, exist in the tidal navigable waters of the River Erne. Upon this question I have found myself compelled to come to a conclusion of fact different from that of the learned Judge by whom the case was tried. The plaintiffs tendered no evidence upon the laws of Ireland in respect of fisheries, and the evidence of Professor John McNeill, Dr. de Largy and Professor Binchy has satisfied me that there was under the ancient Irish law nothing which corresponded to the several fishery dealt with in Magna Charta.”
The decision of the Supreme Court, therefore, was a decision as to a question of fact, in regard to the existence of a several fishery in a particular place, namely, the land of Tirconnaill, and nothing more. The Supreme Court said nothing to contravene the rule laid down by Lord Haldane in the Canadian Case (2) in which he said: “Not only
may the question of future litigants be prejudiced by the Court laying down principles in an abstract form without any reference or relation to actual facts, but it may turn out to be practically impossible to define a principle adequately and safely without previous ascertainment of the exact facts to which it is to be applied.” It is unnecessary to point out that even the matter involved in Moore v. Attorney-General (1) could be brought before the Court again for reconsideration, by proceedings in the nature of a Bill of Review, if newly discovered evidence were available and forthcoming (2).
What is the question of fact which, in this case, I am called upon to decide? The Chief Justice in the Erne Case (3) said that exclusive possession of a fishery for hundreds of years “must be of enormous weight, and no Court could, save for the strongest and most convincing reasons, ascribe an enjoyment so long continued to an illegal origin.” In most cases it would be impossible to prove in a Court of law by actual evidence that a particular fishery had been “put in defence” eight hundred years ago, and the question arises how the owners of fisheries in tidal waters are to protect their rights if their claim is called in question, especially under circumstances such as exist in this case, in which the plaintiffs, after the issue of the original plenary summons, have had to meet successive incursions of sets of persons who have entered upon the fishery from time to time in defiance of the orders of this Court. The Court is entitled, in the case of a fishery which is known to have been carried on for a very long time, to ascribe to it a legal origin (as the Chief Justice indicated) unless there is very strong and very convincing reasons to the contrary. This presumption of law was established by numerous cases of the highest authority both in England and Ireland, and it is based upon good sense and sound judgment of the highest character.
The most convenient statement of the rule is, I think, to be found in the following passage from the judgment of Lord O’Hagan in Neill v. Duke of Devonshire (4) at p. 158: “Proof of previous appropriation, by documentary or parol evidence, at such a distance of time, cannot be obtained, although there may be plausible antiquarian speculation about it; and therefore, from the necessity of the case, the doctrine which this House accepted in Malcomson v. O’Dea (5), determined that possession and user of a fishery, as several or exclusive, continued for a sufficient period, justifies the assumption that it had its origin legally and not illegally, and at a period at which the law permitted it rightfully to originate, although so remote as to render evidence of the circumstances of its creation unattainable.” Lord Blackburn quoted and adopted as his own the following trenchant passage from the judgment of the Master of the Rolls (Sir Edward Sullivan), which, as the view of a great Irish Judge, is worthy of repetition in this case: “It is not law,” said Sir Edward,”and this can never be too often repeated, that the Crown cannot grant a several fishery in tidal waters since Magna Charta. Such a statement is illusory and contrary to law. It can grant a several fishery in such waters since Magna Charta, if that fishery existed before Magna Charta. If a tidal river in which there was prima facie a right in the public to fish was appropriated by an individual or by the Crown before Magna Charta, that individual or the Crown, if the Crown has got it back, can grant it after Magna Charta. That is a settled principle on which every one of the cases connected with several fisheries in tidal rivers have been adjudicated upon in this country; and inasmuch as it is not possible in any given case that evidence could be brought forward in a Court of Justice as to what happened with respect to a river before Magna Charta, if the Crown’s patent purports to grant a several fishery, and the grant is followed by user of it as such I mean, by sufficient userthat is always and will ever be held sufficient evidence that the fishery existed before Magna Charta.” That is the law as laid down in Ireland and upheld by the House of Lords.
The decision in the Erne Case (1) was of a twofold character. The Supreme Court decided, first, that there had been no conquest of and no submission by Tirconnaill previously to the application of Magna Charta to Ireland that is, previously to the year 1199 or, alternatively, the year 1189, and that the common lawor, rather, the feudal law of Englandhad no application in County Donegal till a very much later period. It followed from the establishment of that historical factestablished by evidence of a historic character and by those historic circumstances of which the Court was entitled to take judicial noticethat there could have been no possibility of an appropriation of the fishery in question by the Crown previously to Magna Charta. It was decided further, on the evidence of Professor John McNeill and Professor Daniel Binchythere being no evidence to the contrary adduced on behalf of the plaintiffsthat under the law which governed the relationship of society in Tirconnaill in the twelfth century the appropriation of an exclusive right of fishery in an arm of the sea, such as the estuary of the Erne at Ballyshannon, was impossible, except with the consent, or by virtue of the concession, of the governmental authority of the Tuath. As there was no evidence of any such concession or consent, it follows that the appropriation of a several fishery in the Erne by an individual (even an Irish Prince) previously to the legislation was out of the question. The Court then held that the appropriation of the fishery must have taken place at some later date, and that when Magna Charta became operative in Tirconnaill, it had a retrospective force, rendering any appropriation of a several fishery in tidal waters there made at any date subsequently to 1189 (or 1199) ineffective in law.
In the present case the defendants have in defences filed by them respectively alleged that the same state of facts existed in County Mayo as the Supreme Court found to exist in Tirconnaill, and have sought to justify the conduct of the special defendants on that ground. The latter denies that the tidal portion of the Moy river “had been put in defence from time whereof the memory of man is not to the contrary or at any time prior to the date of Magna Charta.” The special defendants are somewhat more specific in their defence. They say that they entered upon the tidal waters in question as members of the public and, in pursuance of their rights as such, fished in the same, and in the following paragraph they set out with more precision than does the Attorney-General the additional question which is raised by this litigationthe question which (as they claim) was not disposed of in Malcomsonv. O’Dea (1) and Neill v. Duke of Devonshire (2):”The said defendants will rely upon the provisions of chapter 16 of Magna Charta as requiring that a several fishery in tidal waters must have been put in defence prior to the year 1189, and the said defendants say that such several fishery in the said tidal portion of the said river did not in fact exist in or before the year 1189 and is not historically possible. The said defendants will contend that any grant by the Crown contrary to the provisions aforesaid is null and void.”
At the trial nine of the special defendants appeared and were represented by counsel, but took no part in the proceedings, either by the calling of evidence or by the placing before the Court of argumentative matter: although they allege in effect that they have been grievously damnified as members of the public by reason of the plaintiffs’ claim they gave no assistance to the Court whatever in reference to the defence that they had filed. The remainder of the special defendantssome fifty persons, who had entered upon the alleged fishery and had fished therefiled no defence, did not trouble to appear at the trial and treated the whole proceedings with contempt. The result is that the entire burden of opposing the claim of the plaintiffsa claim that has been exercised so long and so unquestionedlyhas fallen upon the shoulders of the Attorney-General, who, representing the Government of the country, has lent to these 59 defendantsand, indeed, to numerous other persons who have since the commencement of the proceedings entered this fishery and unrestrainedly fished therethe whole monetary and political resources of the Irish Free State. The special defendants who have been called upon to expend little or nothing in this litigation, are certainly fortunate in having been able to secure the ample resources of this country to carry on through the Attorney-General the most expensive piece of litigation that has taken place in Ireland for many years; and I may be permitted to say further that it was equally fortunate, from the point of view of the ascertainment of the truth, that the plaintiffs were able and willing to supply the very considerable material and moral resources that this historic litigation entailed upon them.
The matter with which I am concerned resolves itself into the simple question of fact which is set out in the defence of the special defendantsa defence which is signed by very distinguished counsel:Must the existence of a several fishery in the Moy at the time of Magna Charta be regarded by me as historically impossible? The plaintiffs’ evidence is of a very lengthy and learned character, and it would be neither possible nor reasonable that I should proceed to analyse it at length. It is, I think, sufficient for me to say that I have considered it all with the greatest care and that I am absolutely satisfied, first, that an appropriation of a several fishery in the tidal waters there previously to Magna Charta was certainly possible, and, secondly, that, contrary to the weighty opinion of Professor John McNeill, the appropriation of a several fishery in the twelfth century in a tidal estuary such as the Moy under the laws of the native Irishequally cannot be regarded as an impossibility. If I am right in coming to the conclusion, on the weighty evidence of the learned historians, lawyers and philologists who have been examined, that there is no such historical or legal impossibility as the defendants allege, then the presumption that may be made from the evidence of long user as established by Malcomson v. O’Dea (1) and Neillv. Duke of Devonshire (2), is available to establish the plaintiffs’ title. In the light of this evidence I again refer to the principle propounded by Kennedy C.J., with the assent and concurrence of FitzGibbon and Murnaghan JJ. a principle that cannot be referred to too oftenthat possession of a fishery for three hundred years must be treated as of enormous weight and an enjoyment as long continued cannot be ascribed to an illegal origin “save for the strongest and most convincing reasons.”
Now, I have, in the detailed evidence of Mr. Michael Duignan, which is of “the strongest and most convincing”character the story of a series of dealings by the Crown and by the Crown’s Anglo-Norman feudatories, beginning with the Treaty of Windsor and ending (so far as this controversy is concerned) with the Inquisition of Cong in 1609, which is very persuasive and which includes references to the actual dealings with the Moy estuary and lands surrounding it. Goddard Henry Orpen, in his valuable work on “Ireland under the Normans,” observes that he had been led to regard “the domination of the English Crown and of its ministers in Ireland, during the thirteenth century, and indeed up to the invasion of Edward Bruce in the year 1315, as having been much more complete than has been generally recognised,” and this phase of Irish history is made very clear by Mr. Duignan’s résumé of the history of Connaught in the second half of the twelfth century, more particularly of the northern part of County Mayo. The submission of Roderick, King of Connaught, by the Treaty of Windsor, which was followed by the grant in chief to William de Burgo and by the sub-grants made subsequently by that nobleman and the other grants in respect of this territory made to de Angulo and de Lacy, afford evidence of the most striking characterevidence of a character which was entirely wanting in the Erne Case (3)that Henry, as well as John, in his father’s lifetime, were trafficking in the lands of Connaught at a very early period. The aid which the warring Irish princes sought and got from the King and his Norman feudatories, is another element which is of vast significance, and there is evidence that a sheriff of Connaughtthat essentially English officialwas operating there certainly as early as the thirteenth and fourteenth centuries.
Many of the incidental matters that arose in connection with this part of the case are of evidential value. One of them, which is of particular significance, may be mentioned. In many, if not most, of the early deeds and charters, the parcels of land conveyed or granted are identified by their description as Cantred, a British term corresponding to the Anglo-Saxon “Hundred,” and the Irish name of the Cantred is invariably added, showing that the lands in Mayo had at a very early date received a British, in opposition to an Irish, nomenclature of division. Thus we find in the Gormanstown Register a summary of the important charter of 1195 from William de Burgo to Hugh de Lacy and the grantee and feoffee is granted ten cantreds of land in County Mayo with an Irish denomination in each case. The grant includes”waters and fisheries, pools and mills, rivers and fishponds, moors and bogs, mines and harbours, with soc and sac, toll and theam, infangthef, with judgment of fire and water, with divellum and gallows and all liberties and free customs to said land belonging.” This is a most important document, and owing to the destruction of the early Irish records, first, in the burning of Mary’s Abbey in the fourteenth century and again in the destruction of the Public Record Office in Dublin in 1921, would not have been available as evidence for the plaintiffs had it not been for the lucky accident that it was calendared in the Gormanstown Register in or about the year 1397.
The same denomination of Cantred is followed in many of the other early documents, including the King’s mandate of February 12th, 1207, concerning Gilbert de Angulo, the charter of the King to Richard de Burgo, granting in 1227 the whole land of Connaught to Richard, “which William his father held of us.” It is noteworthy that this denomination was the term that was used in other grants of land much nearer the seat of government than Mayo was (1). In Blount’s Law-Lexicon (1670) the word”Cantred” is described thus: “Cantred, or rather Cantref (Cantredus) signifies an hundred villages, being a British word compounded of the adjective Cant, i.e., an hundred and tref, a town or village. In Wales the counties are divided into Cantreds as in England into Hundreds.”Caxton, in his “Descripcyon of Englonde,” says, “Hondred and Candrede is all one” (1). The word is to be found scattered through the early English statutes, of which I may mention 11 Henry VII, c. 35 and 28 Henry VIII, c. 3 (2). It is true that it is used mainly to describe a division of land in Wales, but it is known also in Essex and Sussex. It seems to me that the use of the word Cantred in these grants of the twelfth and thirteenth centuries with the Irish name of the particular place attached is a fact of great significance.
Now, it would be equally impossible for me, if I am to have any regard for public time and the work of the Courts, to attempt to set out with any degree of detail the learned evidence of Professor Binchy, Professor Bergin, Dr. Myles Dillon and Professor Thurneysen as to the social polity which existed in Ireland in the twelfth century and the laws which regulated the human relationship then. As a matter of fact, however, it is not necessary to do so, as the matter which the plaintiff is called upon to establish is not a definite fact (which, as Lord O’Hagan said, cannot be proved after the lapse of seven hundred years) but only a probabilityin fact only a possibility. Professor McNeill tells me that Irish social life was not a static state of society, but that it must necessarily have changed very considerably in the centuries that followed the sixth and seventh; that is a matter that cannot be questioned, and I have in the evidence of these four gentlemen numerous examples of the progress of events. I cannot refrain from paying a tribute to the thoroughness with which the three first-named witnessesand particularly, of course, Professor Binchyhave ransacked not only the whole body of the Irish law tracts, published and unpublished, but also the Irish annals and the whole of the general literature of this country, to assist me in regard to this question. Every statement that they have advanced has obviously been carefully considered, and in almost every instance has been based upon material that they have discovered in ancient Irish sources. The evidence of Professor Binchy is particularly interesting in that, after four or five years of further study, he has completely altered the opinion that he had formed when he gave evidence in the Erne Case (3), and he now has the courage and the honesty to come forward and explain his change of opinion and the reasons for it. The evidence of Dr. Dillon is also of a remarkable character. As I understand, he attended the Court merely as a person interested in the problem that the Court had to solve, and at the eleventh hour he was moved to come forward and give me the benefit of his learning and scholarship. These three witnesses are supported in their conclusions by the writings and opinions of Professor Thurneysen, the famous German scholar, who has spent a lifetime in the study of Irish law and polity; his name is revered wherever the Ireland of the dim and distant past is a subject of interest.
In the result I cannot do other than accept the view that has been advanced by these scholars, namely, that in the twelfth centuryand even earlierthe same process was going on in Celtic Ireland that we know was going on in England and Wales, and that the appropriation of several fisheries in estuaries and arms of the sea and the establishment of the exclusive right to fish in such places was a well-known and established phase of ancient polity.
In Scotland, where national development ran on somewhat similar lines to that in Ireland, the process went even farther. This matter came before the House of Lords in the important case of Gammell v. Commissioners of Woods and Forests (1) when the following far reaching propositions were established:
1. That salmon-fishings in the open sea around the coast of Scotland, unless parted with by grant, belong exclusively to the Crown, and form part of its hereditary revenue.
2. This right of the Crown is not merely a right of fishing for salmon, but “a right to the salmon-fishings around the sea-coast of Scotland.”
3. It is not to be regarded simply as an attribute of sovereignty, but rather as a patrimonium, a beneficial interest constituting part of the regal hereditary property.
4. Salmon-fishings in the open sea around the coast of Scotland may not only become the subject of a royal grant, but they may be feudalized.
5. The assertion that the sea is common to all, and that there can be no appropriation of it, except where it adjoins the shore, is an erroneous assertion.
It is of great interest, in the light of the evidence and investigations of Professor Binchy and the others, to find that the course of events in Scotland, where Gaelic ideas and ideals played a more important part than they did in England, eventuated in the establishment in that country, in later years, of principles so closely in consonance with the rights of individuals as opposed to those of the general public in regard to the fishing for salmon. It was decided later by the House of Lords in Parker v. Lord Advocate (1) that the same principles applied to the fishing for or the taking of shell-fish such as mussels and oysters on the foreshore and the estuaries around the coast of Scotland.
It is further a matter of historical interest that Mr. Haldane K.C.whose statement in the course of his judgment in the case of Attorney-General for British Columbia v. Attorney-General for Canada (2) ten years later has proved to be of such far-reaching importance advanced in Parker’s Case (3) the argument that “Magna Charta put a limitation on the Crown’s prerogative in England, and by force of the Act of Union [with Scotland] the royal prerogative is subject to the same limitation in Scotland as it undoubtedly is in England.”
This argument was referred to by the Lord Ordinary (Lord Kincairney) in this way (4). He said that if the argument was to be adopted by the Court “it followed from the provisions of Magna Charta that a several right of fishery in the sea could not be created in England after a very early dateI think the reign of Henry II.; and that it followed from arts. 4 and 11 of the Treaty of Union that these provisions of Magna Charta applied, after the Union, to Scotland, and the conclusion seemed to be that there could be no valid grant of fishings in the sea which was dated later than the Union. I may have misunderstood this argument, which has the merit of ingenuity and originality, and which is very far-reaching, because it seems to apply to grants of salmon fishings as well as of mussels, and would have been open in many such cases, which have almost always been elaborately argued; as, for example, in Gammell v. Commissioners of Woods and Forests (5).But it was never, so far as I know, referred to. I am not fully informed about the law of England on this matter, but I am satisfied that it is not imported into Scotland by the Treaty of Union, and that questions as to the law of mussel fishings, like questions as to salmon fishings, depend solely on the law of Scotland, and have always been so treated in the Courts of Scotland and in the House of Lords.” I think that this eminent Judge, as a matter of fact, did clearly understate the argument advanced by Mr. Haldane. Lord Kincairney’s judgment was followed and adopted by the House of Lords, which merely affirmed what had been decided by the Scottish Courts. The point, however, is, in regard to Ireland, only of historic interest, and I refer to it merely from that point of view.
The task of the defendants, in answering the case made by the plaintiffs, is gigantic. I am satisfied that the evidence adduced on behalf of the latter has shifted the burden of proof to the shoulders of the Attorney-General, and he has brought before me no evidence that would warrant me in saying that there was no appropriation in fact of a several fishery in the estuary of the Moy previously to Magna Charta. At the most, his witnesses have made criticisms of the evidence given by the plaintiffs’ witnesses and suggestions which amount to antiquarian speculation, but which do not displace the effect of the proof that the plaintiffs have advanced. Mr. John McNeill adhered, with some important modifications, to the evidence that he gave in the Erne Case (1), and particularly the inferences that he draws from the passage in the tract which is called in the Ancient Laws of Ireland, “Of the Confirmation of Right and Law” (2). The translation of the word “?illegible?” as meaning salmon is now shown to be at least doubtful; but, apart from the problematical consideration, there is the substantial point which is made by Mr. Duignan and Professor Binchy that the subsequent glosses and commentaries make it clear that in the course of centuries the general character that the original text might appear to have possessed had been very greatly modified, and that it could not be asserted that the proposition possibly laid down in the original tract in the sixth, seventh or eighth century was any authority whatever for the statement that a several fishery in tidal waters was impossible in the twelfth century. Further, the whole passage, when read together, raises problems of such complexity and suggests such strange, not to say impossible, social conditions, that it is difficult to think that any part of it had any applicability in the twelfth century.
One of the most important pieces of evidence that the plaintiffs have adduced is the evidence as to the Cong Rental. This was a formal list or inventory of the temporalities of the Monastery of Cong, prepared in 1501 by Tadgh O’Duffy, whose family had had close associations with the Monastery for hundreds of years (it was an O’Duffy who was the first Lord Abbot of the Monastery). Now, evidence of a most interesting character has been given as to the authenticity of this document, and I am satisfied beyond doubt that it is a genuine document of the year 1501; and that brings me within three hundred years of the critical period. I think that I can infer that it was prepared for registration in Rome in the register of the Temporalities of the Church all over the Christian world, and it is possiblenay, extremely probablethat the original inventory as prepared by O’Duffy was so registered. There is nothing unlikely or extravagant in that suggestion. The document came into existence in the reign of Henry VII., many years before the ecclesiastical changes that took place in the subsequent reigns were suggested or even thought of, and everything points to this document being both an authentic and a truthful record.
Its importance from the plaintiffs’ point of view is very great. A marginal note on the copy that has been proved explains its origin: Ex vetere manuscripto Monasterii de Conga; and the document is prefaced by this statement:”Let all know by these presents that the following are the true, indubitable and authentic rentals of Cong in fees, tithes and other commodities and emoluments, from the first day of the dedication of the Church down to the present day.” Then follows a list of the rentals, and amongst them it is to be observeda matter which, I think is of some importancethat several of the donors were of the family of de Burgo, beginning with “Edmundus Scotorum,” the son of William de Burgo, Knight. Turlough Magnus O’Connor gave certain lands in his own territorysupra montem de Sliabh Ban [Slievebawn] monasterio predicto; and then comes clause 17, upon which the plaintiffs place special reliance:
XVII. Rogerus filius supradicti et Rex Hibernis donavit villam et terram de Cill Moir Muaidhe monasterio dicto et decimam piscium totius amnis de Muaidh antedicti et funem campane ab omni nave ad portum dictum gratia piscandi et mercandisandi pro tempore deveniendo monasterio predicto.
“XVII. Ruadlin, son of the aforesaid and King of Ireland, gave the villa and land of Cill Mor of the Moy [Kilmoremoy] to the said monastery and a tithe of the fish of the whole river of the Moy aforesaid and a bell rope from every ship coming to the said port from time to time to fish or trade [there].”
Now, here we have a statement that Roderick O’Connor, the king who had submitted to Henry II., had given a tenth of the fishing in the whole river of the Moy (totius amnis de Muaidh) to the Monastery, that the Moy was in Roderick’s time a trading and fishing centre, that ships were in the habit of coming there, that each ship coming into the territory of the Monastery was bound to pay a feudal due consisting of a bell-ropea not infrequent due, I may say, in the case of a monastic corporationand that in addition to the fishing and the bell-rope the surrounding territory itself had been given by the king.
Everything points to the genuineness of this record. Roderick, all his lifetime, had been closely associated with this monastery. It was to it that he retired when he abdicated and it was there, I think, that he died. The rental has been not infrequently referred to in Irish writings as an honest record of this country. This document has been referred to by historians and others, and its genuineness has never been questioned. The eminent counsel for the Attorney-General have been so pressed by its importance that they have been forced to make the extraordinary suggestion that itor, at any rate, that clause 17is a forgery perpetrated by these holy men of Cong, prepared for the purpose for making title to property that did not belong to them and intended to deceive not only the people and the Church in Connaught but the Holy See itself. So artfully was the fraud devised that, in order, I suppose, to give the whole clause an appearance of truth, the Abbot and the monks decided that it would be well to exact a bell-rope from the poor mariners of each ship coming into the port.
I see no grounds whatever for accepting this suggestion; and I may add that the document, if it does not amount to actual evidence of the existence of a several fishery in the Moy in the twelfth century, comes as near to that point as it well could. In connection with this phase of the case I am reminded and should like to quote the remarkably pregnant words of Mr. Justice Willes in Malcomson v.O’Dea (1): “There is no improbability in the early appropriation of this always valuable property, or even a more extensive fishery, either in the time of the Irish Princes or in that of the Ostmen . . . or by Henry II. in his grant to the companions of Strongbow.”
There are one or two other matters in controversy which I do not think it necessary to deal with at length. I accept the evidence of Professor Binchy as to the significance and meaning of the Irish word which is,
anglicised as the word “Inver.” It is a word universally known in Ireland, Scotland and Wales (where the anglicised form is “Aber”) as denoting an estuary or mouth of a river where it joins the sea. There are one or two instances where, by analogy, it is used in reference to the mouth of a river where it enters a lake or even a larger river. I see no reason for departing from this primary and well-known use of the word where it is found in the law tracts to which reference has been made. In writings of this kind one expects to find language of precision and realitythe language of the men of affairs and not the language of the poet or the dreamer. I have no doubt that some grounds are to be found in romantic and poetic literature for the evidence that Professor McNeill has given; but I cannot construe a rule of law in a Brehon Law Tract by an appeal to poetry. Sir William Page Wood put the matter very neatly in Alger v. Parrott (1) where he said: “Words having a distinct meaning must bear their primary legal import.”
It is not necessary in this case to discuss the date of the applicability of Magna Chartawhether 1199 or 1189. In the view that I take of the evidence that question does not arise nor (as I read the judgments) did it arise for decision in the Erne Case (2); but it seems to me that a great deal can be said for the view that the critical date involved in the matter arising in this action is 1199the beginning of John’s reignand not 1189. Mr. Berry, in his introduction to the first volume of “The Early Statutes of Ireland,” says that the legislation that had to be taken into account by him included writs and mandates addressed by the earlier kings, by virtue of their royal prerogative, to the executive and legal officials in Ireland, and he adds”At what period or in what reign the King’s ordinances completely yielded to the more constitutional authority of parliamentary enactments has never yet been precisely ascertained.”
William Lynch in his “View of the Legal Institutions Established in Ireland” (3)a book of the very highest authoritysays (at p. 14) that “King Henry by his patent acquainted his subjects in Ireland that he had conferred on them those liberties, a copy of which he now transmits sealed with the seals of his officers. The copy then transmitted has some necessary variations from King John’s charter; it is generally styled the ‘Magna Charta Hiberniae,’ or, in ancient pleadings, the ‘Grand Charter’ and was transcribed into the Red Book of the Exchequer at Dublin where it is still to be seen.” Molyneux in his book, “The Case of Ireland”a work, however, of much lesser authority takes the same view as to Henry’s Great Charter, which he says was transmitted to Ireland in November, 1216. (In Sweetman’s Calendar of Irish transactions in the reign of Henry III the date is given as “soon after October 28.”)
The Charter provided that it was granted, inter alia, “for the amendment of our kingdom,” and amongst the clauses the two following are important:
“Also all weirs shall henceforth be put down through the whole of the Anna Liffey and all Ireland except by the sea coast;
All forests which were afforested in the time of King John, our father, shall be immediately disafforested, and so let it be done in the case of rivers which were placed in defence by the same John in his time.”
So that the state of affairs as existing at the beginning of John’s reignA.D. 1189is to be restored.
The Charter contained a number of other matters relating to feudal dues, services and privileges which differed from the provisions in John’s Charter, and there can be no doubt that it was Henry’s Charter, and it alone, that was observed by the Courts and the Judges in Ireland. Subsequently the Charter was re-enacted by the Parliament at Dublin in 1320 in these words (1): “Firstly, it is agreed . . . that the great charter of the King granted to the clergy and people of Ireland be published and observed in all points.” At p. 21 of Mr. Lynch’s book a number of cases in the Courts are set out which would appear to be based on the Charter of Henry III. and its subsequent confirmation in the reign of Edward II. It is, I think, almost inconceivable that, by any rule of statutory construction, Poynings’ Law could be held to have contemplated the application of the Great Charter of John, seeing that nearly all the matters dealt with by that Charter were the subject of specific legislation by Henry III. and subsequently by the Irish Parliament. A rule of construction that would enable titles, right and property that had been adjudicated upon by the Courts between the years 1216 and 1495 to be disturbed on the passing of Poynings’ Law is not one that could be countenanced by any Court of law.
I am absolutely satisfied, on the learned and very well considered evidence that has been placed before me, that there was no historical or legal impossibility in an appropriation of an exclusive right of fishing in the River Moy previously to Magna Chartawhether the charter of Henry III. or the charter of John, and I see no reason to alter the view I expressed in 1929 (1).
I may say in conclusion that I am exceedingly glad that I have been able, on the law and on the facts, to arrive at a result in favour of the plaintiffs, who have spent and done so much in building up and improving this ancient and very deserving local industry.
It is unnecessary for me to say anything as to the further point made by the plaintiffs, namely, that the legislation of Charles II. amounted to a ratification and confirmation of their title.
Cooper v. Attorney-General and Others
[1935] IR 437
Johnston J.
In 1806 Mr. Joshua Edward Cooper acquired in fee from Sir Edward Crofton, Bart., the townland of Knockmuldowny, otherwise Ballisodare, including the town of that name, together with the tolls and customs of the fairs and markets there “and the salmon fishery and all other the fisheries of the river commonly called the river of Ballysodare,”the consideration being £1,005. This member of the Cooper family seems to have been a man of energy and imagination. At a time when such a scheme was almost unknown, he conceived the idea of turning the two barren rivers of Arrow and Owenmore into a bountiful reservoir of food by constructing a series of canals or ladders for the purpose of enabling the salmon to ascend into these rivers from the sea. The scheme was an experiment, involving very considerable expense, and might have been, so far as the knowledge of the engineers of the time was concerned, a complete failure, resulting in a loss of thousands of pounds. It is enough to say that it was a complete success. The salmon bred in the two rivers came back, according to the habit of their kind, in increasing numbers, and very soon the estuary and the rivers were teeming with fish which came up from the sea, utilising the marvellous structure which had been conceived in the brain of Joshua Edward Cooper and constructed by the engineering genius of the late Mr. William Forsythe. The plans for this work, as prepared by Mr. Forsythe, make it very clear how well-designed this work was to effect its purpose and to resist the ravages of weather and flood for a hundred years. It was considered in 1837, however, that the work could not be carried out without an Act of Parliament; and such legislation was passed on June 30th, 1837, entitled “An Act to enable Edward Joshua Cooper, Esquire, to establish and protect a salmon fishery upon the lakes and rivers of Owenmore and Arrow and also within the Bay of Ballisodare in the county of Sligo in Ireland.”
Joshua Edward Cooper, the real author of this great industrial undertaking, had died on June 7th, 1837, and the actual work of carrying out the scheme devolved upon Edward Joshua Cooper, his nephew, who, amongst his other interests, was an astronomer of some repute. After various devolutions of the property, to which I need not refer, it reached the hands of Major Bryan Cooper, another illustrious member of a rather remarkable family, and on his death on July 5th, 1930, the plaintiff, who is Major Cooper’s eldest son, became entitled. The works were completed some years after the passing of the Act, and in the long period that has elapsed since then the Coopers have successfully claimed an exclusive right of fishing in the estuary and the rivers, and the defendants have not offered a particle of evidence suggesting any doubt as to their title. The fishery was rated as a rateable hereditament at an early period. At first the valuation was only £35. Later, it rose to £100. In 1871, it had reached the substantial figure of £500, and at the present time it is £400. During the whole period down to the present time the fishery has been a substantial source of revenue both to the local and to the central authorities. The catch of fish in the year 1880 was 3,331; but by that time the two rivers had become both popular and populous by reason of successive seasons of spawning. Even after that year the general tendency of productivity was steadily upwards. In June, 1934, the special defendants began to fish in the estuary, claiming a right to do so by reason of the fact that the waters there are tidal, and the plenary summons was issued on July the 9th, 1934, the Attorney-General being joined as a defendant, “as representing the public and the State of Saorstat Eireann and by reason of the fact that the special defendants purport to justify the trespass of which the plaintiff complains as done in exercise of an alleged public right.”
The plaintiff rests his claim on the Act and on nothing else. As I have pointed out, the lease and release of 1806 purport to convey to Joshua Edward Cooper the lands, the market tolls, and “the salmon fishery.” There are various other references to such a fishery in the intermediate conveyances, and in the preamble to the Act the grant of a salmon fishery at Ballisodare by Sir Edward Crofton to Joshua Edward Cooper is recited. The Act adds, plainly enough, that “the said Joshua Edward Cooper did after the said conveyance and to the time of his death uninterruptedly exercise and enjoy the exclusive right of taking the salmon which so as aforesaid annually congregate within the mouth of the said united rivers, which after their union are called the river of Ballisodare, and also immediately below the waterfall situate at Ballisodare aforesaid.” This amounts to a clear parliamentary declaration that the grantee had enjoyed and exercised for 31 yearsnamely, from 1806 to 1837an exclusive right of taking salmon in the estuary as a result of his grant from Crofton, and I must accept that declaration, which is set out in an Act, declared to be a public Act and printed by the Queen’s printers, as evidence of the truth of the statement. No attempt was made by the defendants to introduce evidence to contradict it.
The attack made upon this Act which has been made by both defendants, but chiefly by the Attorney-General, was of a guarded character, in language which was not wanting in ambiguity, and I had some difficulty, as the argument proceeded, in disentangling what was advanced by way of criticism of the operation of the Act and what was suggested by way of questioning its validity. At no stage was the contention put forward categorically and definitely that it was out of the power of the Legislature, since Magna Charta, to have created a several fishery in tidal waters in anyone, and a frank proposition of that kind would, of course, have ended the discussion in a moment, and it behoved the defendants, therefore, to mask their batteries. The same ambiguity runs through the defence of each of the defendants. The special defendants say that the Act as pleaded “was ineffectual to vest the tidal fishery” in the plaintiff. I think that these defendants could have been forced, if the plaintiff had been so minded, to give particulars or, at any rate, to have amplified this allegation. They say also that “the said statute does not override, vary or repeal the provisions of Magna Charta by which the right of the public to fish in tidal waters is assured.” I do not think that that is a correct statement of the effect of Magna Charta; but, in any case, the paragraph is quite irrelevant so far as the present litigation is concerned. It is not alleged by the plaintiff, nor is it necessary for him to do so, that the Act of 1837 overrode, varied or repealed Magna Charta in any sense or to any extent.
The Attorney-General approaches the legislation from another salient. He says, first of all, that the right of fishing in these tidal waters “was vested in the British Crown in trust for the public generally and that the said British statute did not affect the prerogative of the Crown or detract from the right of fishing in the said tidal waters enjoyed by the public. The British Crown was not at any material time and the Irish Free State is not bound by the provisions of the said statute.” This plea is ingenious but it does not represent the law. The fallacy, in my opinion, is to be found in the allegation that the public’s right to fish in tidal waters “was vested in the British Crown in trust for the public generally.” It is true, no doubt, that the prerogative rights of the Crown were carried over as part of the law of the Irish Free State by Article 73 of the Constitution, and the case of In re Bateman’s Trusts (1)supports that proposition; but if the prerogative can be successfully used for taking away from persons who have become entitled to the vast mass of rights, interests and property by virtue of legislation, which the public, apart from statute law, would ordinarily possess and enjoy, by a general allegation that such rights were “vested” in the Crown as trustees for the public, and that they cannot be affected unless the Crown is expressly bound by the legislation, then the Case of Ship Money will have to be argued over again. A moment’s consideration of any of the leading cases on the subject of this prerogative right of the Crownthe cases of Mersey Docks and Harbour Board v. Cameron (1) and Clyde Navigation Trustees v.Adamson (2), for instancewill make it clear how entirely unsustainable this point is to be regarded. The matter was settled as early as the time of Coke in the Case of Non Obstante (3), where it was laid down that “no Act of Parliament can bind the King from any prerogative which is sole and inseparable to his person, but he may dispense with it by a non obstante . . . But in things which are not incident solely and inseparably to the person of the King, but belong to every subject and may be severed, there an Act of Parliament may absolutely bind the King.” In the case of the Duke of Northumberland v. Houghton (4),in which the question arose as to whether a several fishery had merged in the Crown by reason of its having been forfeited, it appeared that the fishery had been granted by the Crown before the time of Magna Charta to the prior and monks of a monastery. In giving judgment, Pigott B. said (at p. 132): “Such a right as a fishery is, did not grow out of the prerogative originally, and cannot be held to merge in that out of which it did not grow. It is a right in no sense analogous to waifs or wreck of the sea, which are described as ‘flowers in the garland of the Crown,’ but rather to a warren, for example, which, it is admitted, would not be extinguished upon coming back into the hands of the Crown.” The judgments of Kelly C.B. and Martin B. indicate a like opinion.
The plaintiff’s Act is attacked by the Attorney-General’s advisers on the further ground which is set out in this paragraph: “The Attorney-General will submit that the said British statute, which is a private Act, was obtained by the misrepresentation of the promoter thereof that he or some other person or persons was or were before and at the time of the passing of the said statute entitled to the exclusive right of fishing in the tidal waters of the Bay of Ballisodare, whereas there was not then, in fact, and never had been an exclusive right in any person or persons to fish in the said tidal waters.” If this amounts to an allegation that the promoters of the Bill had made a misrepresentation to the Legislature and that the Legislature had been induced thereby to act upon it, no effort was made to substantiate it by evidence. If it is an allegation that the Legislature took a wrong view of the law, the promoter of the Bill can scarcely be held responsible for that. This Court cannot do otherwise than “assume that the Legislature knew the existing state of the law”(per Lord Blackburn in Young & Co. v. Leamington Corporation (1)). This part of the defendant’s case is based entirely on two ancient cases which are to be found in Cruise’s Digest, but which have never appeared in any volume of reports nor been cited in any text-book except Halsbury (Vol. 25, p. 527)the cases of M’Kenzie v. Stuart and Biddulph v. Biddulph , Cruise’s Digest (London, 1904), Vol. IV, pp. 455 and 549. These cases, however, have no applicability whatever to the present case. They were concerned solely with “Estate Acts” by which certain private property was respectively settled amongst the members of a family and the interference of the Court was sought on the ground that fraudulent representations had been made by some members of the family. They were in effect proceedings to set aside or to rectify settlements on the ground of fraud, and the interference by the Court appears to have been justified by the following passage from Blackstone (2): “A law, thus made, though it binds all parties to the bill, is yet looked upon rather as a private conveyance than as the solemn act of the Legislature. It is not therefore allowed to be a public, but a mere private statute; it is not printed or published among the laws of the session, it hath been relieved against when obtained upon fraudulent suggestions; and no Judge is bound to take notice of it unless the same be specially set forth and pleaded to him.”
It is difficult to say how these two cases would be regarded if it became necessary to consider their authority at the present time. Cruise himself says, significantly enough, that no report of Biddulph v. Biddulph was to be found”either in Mr. Brown or Mr. Vesey, junior.” Since the passing of the Settled Land Acts, “Estate Acts” seldom if ever come before Parliament and Private Bill legislation is now a matter of such settled principles that the idea of a Private Bill being now challenged in a Court of law is almost inconceivable. The prospect of an attack, or even the possibility of an attack, upon property or rights, whether in the hands of corporations or individuals, which has been secured to such persons by Acts of Parliament, would work incalculable mischief and unsettle the very foundations of society. Upon this point Clifford, in his”History of Private Bill Legislation” (1885), Vol. I, p. viii, says: “All these Acts and powers, intimately affecting the social life of the British people, are the creation of private and local statutes. On the faith of these Acts a colossal capital has been subscribed and lent under conditions and for objects approved by Parliament, often after patient and prolonged enquiry. Investors have trusted to the continued control of Parliament and to the security thus afforded against uncalled for interference with their interests. To this same control again the public have always looked for protection against arbitrary powers and monopoly.”
In the present case there is no foundation whatever for the claim of the Attorney-General that, in so far as the Act affects the tidal waters of the Ballisodare estuary, it can be “ignored.” There is no evidence for the allegation that it was obtained by the “misrepresentation” of the Coopers, and there is no foundation for that plea. The Act is not an “Estate Act” at all; it is not even in the popular sense, a Private Act. No doubt it is concerned with a particular locality and with particular persons in that locality, but, subject to that limitation, it is in all essentials a Public Act. In the case of The Queen v. London County Council (1), where the actual decision was that an Act can be both public and local at one and the same time, Lord Esher gives a valuable historical account of the nomenclature and classification of private Acts, and it would appear that at the time when this Act was passed it was regarded as an Act “public, local and personal.” If the plaintiff’s view of its effect is right, it was a public Act in the most real sense, creating a free fishery in an arm of the sea, enabling works to be constructed in the estuary and the river, conferring jurisdiction on justices, creating new statutory penal offences and prescribing the procedure (with forms) and the penalties in respect of the same.
But the Cooper Act had a further sanctity which ought to have appealed to the Attorney-General’s advisers. It is recited in and actually amended by the Fisheries (Ireland) Act, 1842a consolidating Actwhich swept away all the previous Fishery Acts and set up a new fishery code for Ireland, making a new start in regard to the statutory regulation of fishing and fisheries as from that year. Sect. 1 of the Act of 1842, after repealing all the older Acts relating to Irish fisheries, proceeds to provide that”nothing herein contained shall be construed to repeal”the Cooper Act, “save that the said Joshua Edward Cooper, his heirs and assigns, shall not use or exercise any rights, powers or authorities for the preservation or protection of the free fishery in the said Act mentioned, or for the detention, prosecution, conviction or imprisonment of trespassers on such fishery other than such as after the passing of this Act may be lawfully enjoyed, used, or exercised by the proprietor of any like fishery under and by virtue of the provisions of this Act.” So that for the future the Act of 1837 must be read and administered with the Act of 1842, and in that way the Cooper Act became part of the fishery code of the country. But the matter does not rest there. The Act of 1842 was amended by numerous subsequent enactments down to the year 1909, and the whole body of statute law became known as the Fisheries (Ireland) Acts, 1842 to 1909. On the 21st of March, 1924, the Oireachtas passed a new Act “to amend the law relating to fisheries.” This Act is expressly based on the code that was then in existence, amending that code in express terms in several particulars and providing that, “this Act may be cited as the Fisheries Act, 1924, and may be cited and construed as one with the Fisheries (Ireland) Acts, 1842 to 1909.” The same incorporating process was gone through when the Fisheries Act, 1925, was passed, with the result that the older Fishery Acts are part of the law of the Irish Free State, not only by virtue of Article 73 of the Constitution, but by virtue of their express incorporation in Irish Free State legislation. When I come then to read these numerous Acts, dating from 1842 to 1925, I am told by the Oireachtas that I am to construe them all “as one,” and in that aggregate code I find the reference to and the amendment of the Cooper Act to which I have already alluded. If authority were needed for that course, I should find it in the case of Dudley Gas Light Company v. Warmington (1).
The second ground on which the claim of the plaintiff is contested is that, on the true construction of the Act, the legislation, while it created a several fishery in favour of the Coopers in the non-tidal waters of the two rivers, gave them no rights as against the public in the tidal waters: that it only enabled them to acquire such several rights in the tidal waters as they could acquire from the owners of the same by voluntary purchase. I cannot accept this limitation upon the provisions of the Act, and I must, as briefly as may be, set out what, on its plain terms, the Act intended to effect. It sets out, in terms which are clear beyond any question, the natural situation of the rivers and the tidal waters and the desirability of carrying out an engineering scheme for the purpose of stocking the river with fish, particularly salmon; that the Coopers had acquired the lands of Knockmuldowney from Sir Edward Crofton, “together with the salmon fishery and all other the fisheries of the river commonly called the river of Ballisodare”; that Joshua Edward Cooper did up to the time of his death “uninterruptedly exercise and enjoy the exclusive right of taking the salmon which so as aforesaid annually congregate within the mouth of the said united rivers, which after their union are called the river of Ballisodare and also immediately below the waterfall situate at Ballisodare aforesaid”; that Edward Joshua Cooper desired to construct the improvements in the river at his own expense “on the terms that the exclusive right of fishing for and the protection of salmon and other sea fish in the said rivers, lakes and bay shall, in consideration thereof, be vested in and confirmed to the said Edward Joshua Cooper, his heirs and assigns,” but that there should be reserved to the proprietors of land forming the banks of the said bay, rivers and lakes the right of taking salmon and other sea fish therein by rod, line and fly only; that”the establishment of a salmon fishery by the means aforesaid in the said bay of Ballisodare and in the said rivers and lakes would be beneficial to the public” in the various ways set out in the Act; and that the fishery could not be established “in manner aforesaid” “without the authority of Parliament.”
The Act does not disclose the way in which Sir Edward Crofton’s title to the exclusive right of taking salmon in the bay had arisen. Whether it came into existence by force of a Private Act of Parliament or otherwise I do not know. The plaintiff makes no attempt to prove that such a right did exist apart from his reliance upon the recital in the Act, and if the case that he makes now is well founded the existence or non-existence of such a several fishery in Sir Edward Crofton is entirely immaterial. The defendants, on the other hand, have brought forward no evidence to contradict the plain recital in the Act, and if they had tendered such evidence I should have had to reject it. A very similar question, as to the effect of a recital in an Act of Parliament as to proprietorial rights, came before the Privy Council in the case of Labrador Company v. The Queen (1), and Lord Hannen, in delivering the opinion of a strong Court, after setting out the facts (at p. 123), said: “This is an absolute statement of the Legislature that there was a seigneurie of Mingan. Even if it could be proved that the Legislature was deceived, it would not be competent for a Court of law to disregard its enactments. If a mistake has been made, the Legislature alone can correct it. The Act of Parliament has declared that there was a seigneurie of Mingan, and that thence-forward its tenure shall be changed into that of franc alen roturier. The Courts of law cannot sit in judgment on the Legislature, but must obey and give effect to its determination.”The other eminent Judges who were parties to that statement of the law were Lord Watson, Lord Hobhouse, Lord Macnaghten and Lord Morris.
The actual operative part of the Act, however, is so clear and decisive that it is unnecessary for me to discuss at any greater length the question of the existence or non-existence of an earlier several fishery. Sect. 1 empowers the Coopers, at their own cost, “to divert and turn the waters of the said rivers” by making the necessary cuts and canals “in such manner as may be sufficient to effect the aforesaid object of enabling the said salmon to ascend into the said rivers and lakes”; and then follows a series of sections which were punctiliously inserted in the Act for the purpose of protecting the rights of other landowners who might be damnified by the operations of the Coopers. First of all, sect. 2 provides that in diverting the waters Mr. Cooper is not to do anything that would decrease the supply of water to any mill or to any eel weir. A question seems to have arisen as to whether any other rights of several fishery existed in the tidal waters and the promoter of the legislation was put upon terms to buy up all such rights before he could acquire what the Legislature intended to give him. Sect. 3 empowers him “to treat, contract and agree for the absolute purchase of the existing rights and privileges of fishing for salmon and other sea fish within the said bay of Ballisodare with any person or corporation who are or shall be seized, possessed of or interested in their own right, or with any other persons whomsoever who shall be willing to sell the same, or their estate, right or interest therein for the purposes of this Act.”
Now, it might have been thought that this section, with its suggestion that there were other persons who had several fishery rights in the estuary in addition to the plaintiff’s predecessor, was a further stumbling-block in the way of the defendants, but nothing can discourage their stout optimism. I cannot think that, in seeking to get over this difficulty counsel for the defendants intended to advance the argument that the more that several fisheries were found to exist in the estuary the stronger the case of the public must bethat would not be doing justice, I am sure, to the learned arguments that were addressed to me. But at the same time I cannot see how the recitals in, or the powers conferred by, sect. 3 can possibly assist the defendants. After the Act was passed, Edward Joshua Cooper, as a measure of precaution, got the owners of the lands surrounding the estuary to grant to him their fishing rights there, and in the memorials of the twenty-two deeds that were produced for the purpose of proving that transaction, the consideration money is stated in each case to be a nominal sum of five shillings. The deeds for the purpose of carrying out this transaction were, I am sure, prepared by the solicitor for Mr. Cooper in accordance with the form of conveyance set out in the Act, and the surrounding landowners were willing to execute them in the form in which they had been drafted, knowing either that they and each of them had no right of several fishery in the estuary at all or that any rights that they had were of a merely nominal character. In one case only was any distinction made. Roger M’Manus and Thomas M’Manus, the joint owners of the townland of Abbeytown, held out for a higher price and eventually they were paid the sum of £350; but even that transaction is of no assistance to the defendants, because the memorial states that the money was paid in respect of “all that their right of salmon fishing in the bay of Ballisodare then their property and which was appurtenant to and arising from their possession in the townlands of Abbeytown and Streamstown which extends along part of the shore of said bay . . . and all their right, title or interest in and to the same fishing and every part thereof.” This is plainly a grant of a right of several fishery made to “Edward Joshua Cooper, his heirs and assigns, for ever.” This transaction, whilst perhaps it does not further the claim of the plaintiff, certainly does not assist the defendants.
The Act then sets out a number of elaborate provisions, which were commonly inserted in Private Acts of the time, for the purpose of enabling trustees and persons in the position of trustees to make, title to any rights that were to be conveyed and effectually binding persons under disability. These provisions were the subject of an elaborate argument by counsel for the Attorney-General, the only effect of which was to introduce an element of confusion and obscurity which is not in the Act. The operative part of the enactmentan excellent piece of draftsmanship provides that on payment of the purchase money “all such existing rights and privileges . . . of the parties and persons respectively to whom or for whose use the same shall be paid shall vest in the said Edward Joshua Cooper, his heirs or assigns for ever,” and it then proceeds to enact as follows: “And the said bay of Ballisodare and (after the construction of the aforesaid canals, passages or cuts) the said lakes and rivers of Arrow and Owenmore and the several rivers and streams connected therewith or flowing thereunto, into which salmon and their fry or spawn or young or other sea fish may at any time thereafter enter, shall be, and be deemed and taken to be, the free fishery of the said Edward Joshua Cooper, his heirs and assigns for ever.”
It will be observed that the free fishery in the bay of Ballisodare was to come into existence at once (the bay being carefully defined in a subsequent section) and the free fishery in the rivers and lakes was to vest in Mr. Cooper when the salmon ladder had been constructed. The use of the words “free fishery” (libera piscaria) was scientifically correct and was probably a more potent phrase than the words “several fishery.” It would be waste of public time were I to proceed to say anything as to the use and history of these phrases. That will be found set out in an excellent note in Mr. Stuart Moore’s History of the Foreshore at p. 740.
But the Legislature, not content with creating this free fishery and vesting it in Edward Joshua Cooper, proceeded to elaborate the right that was intended to be conferred. It provided that it should be lawful for Mr. Cooper and his agents “solely and exclusively from thenceforth for ever” to catch by all lawful engines and contrivances”salmon and other sea fish only within the said bay, rivers and lakes and the several rivers and streams connected therewith, and to sell or otherwise dispose of such fish to and for his and their own use and benefit.” Sect. 13 makes it a penal offence for “any person or persons whomsoever,” without the licence or consent in writing of the owner, to take or catch “any salmon or other sea fish or their fry or spawn” in or upon “the said bay”and the other places in question. In a word, the provisions of the Act are so clearly expressed that no question of doubt or ambiguity can possibly arise.
The only question that remains is the suggestion that the condition upon which the free fishery was to arise was never fulfilledthat is to say, that Edward Joshua Cooper never got in the “existing rights” of others and that, as a consequence, his free fishery never came into being. This is a curious point to be made by members of the public whose claim is that several rights in the fishing of the estuary do not and never could have been in the ownership of anyone. Whatever, however, may be the logic of this part of the defence, I think that there is no substance in it. The preamble to the Act declares that Edward Joshua Cooper was desirous of constructing the works in question on the terms that the exclusive right of fishing for salmon and other sea fish in the bay, rivers and lakes should be vested in and confirmed to him, but there was to be preserved to “the proprietors of land forming the banks of the said rivers and lakes the right of taking salmon and other sea fish therein by rod, line and fly only.” Sect. 14 extended this right to the owners of the banks of the bay as well as to the owners of the banks of the rivers and lakes. That was the right that was reserved to the riparian owners; but it was thought that other existing rights might be there, and it was considered right and proper that these should be safeguarded. On payment of the purchase money for the same all such rights were to vest in Edward Joshua Cooper; but if any such rights were not bought up or if the purchase money in respect of some or all of them was not paid, then the rights so outstanding did not “vest” in the Coopers. But that was a matter that was no concern of the public whose interest it was to assert that no such several rights of fishing in the bay could ever have been in existence. Even, however, if I am to regard the matter from the point of view of the construction of sect. 7 that the defendants have put forward, namely, that nothing “vested” in the Coopers until each and every “existing right” of others had been acquired by themthe case of the defendants is no better. After this Act, which is declared to be a public Act and which is printed by the Queen’s printer, had been passed, the promoter’s advisers proceeded, in a most systematic way, to get all the riparian landowners to execute the deeds to which I have alluded, and every one of them became bound thereby. Mr. Cooper then began the construction of this astonishing ladderin fact, two ladderswhich, it was hoped, would induce salmon to come into the bay and ascend in large numbers into the higher reaches of the river. All these steps were taken in the full light of day, and I have no doubt that the Cooper scheme in every one of its stages had the widest publicity not only in the County Sligo but throughout the whole of Ireland and even in Great Britain. For nearly a hundred years several generations of the Coopers have enjoyed the exclusive use of the estuary as a several fishery, and no one has come forward in this case to suggest that their claim has ever been questioned or doubted by anyone. What more could they have done than what they did do? The ladder has been an enormous success, and now salmon weighing in the aggregate many tons yearly ascend with the greatest of ease to the freshwater where formerly one or two piscine athletes were able, in the words of the Act, to make their spring. I am satisfied on the evidence that is before me, that Edward Joshua Cooper succeeded in getting in all the “existing rights” and that the matter was not questioned since.
I am satisfied also that the creation of these rights did not work such a serious loss to the public as the defendants have endeavoured to make out. An effort has been made to suggest that the estuary or bay is a vast body of salt water twenty-four square miles in extent. No doubt that is the case at full high water; at low water, however, the estuary is a comparatively narrow channel, running from the falls to the bay of Sligo, the rest of the space being occupied by sand banks. Sligo bay itself can scarcely be described as the open sea, and the public have, so far as I know, the most unrestricted right of fishing there. I am satisfied also, on the evidence, that, previously to 1837, the salmon that frequented the estuary were few in numberthose that, to adopt the phrase of one of the witnesses, were nosing round the shore looking for fresh water; and that the popularity that these waters have acquired since that date is attributable to a large extent to the operations and expenditure of the Coopers. Further, the extent of the plaintiff’s right in the bay is confined strictly to such sea water fish as, according to their natural law, frequent the salt water and proceed periodically to fresh water to breed. The whole scheme of the Act is based upon the idea that sea-water fish are to be induced to enter the rivers Arrow and Owenmore for spawning purposes and that if Edward Cooper supplies facilities to enable that to be done he is to be rewarded by being given certain exclusive rights in the estuary, namely, the right to take “salmon and their fry or spawn or young or other sea fish.” This provision is more clearly expressed in sect. 13 where the fish described are “any salmon or other sea fish or their fry or spawn.”The right of the public in respect of the taking of all other classes of sea-water fish remained unaffected.
I think that, subject to one small amendment limiting the right of the plaintiff to salmon and other sea-water fish and their fry and spawn, the declaration asked for by the plaintiff must be granted and, of course, a perpetual injunction will be given as regards the special defendants.
Foyle & Bann Fisheries, Limited v AG
and The Society of The Governors & Assistants, London, of The New Plantation in Ulster Within The Realm of Ireland v The Attorney-General and Others
High Court.
13 October 1948
[1949] 83 I.L.T.R 29
Gavan Duffy P.
Gavan Duffy, P.:
This action is brought to establish in the High Court of Justice of Ireland an exclusive title to a small, but prolific, salmon fishery in Ulster. The title springs from the Flight of the Earls, which led directly to the Plantation of Ulster by the City of London. After the submission of Mellifont and the accession of King James of Scotland to the English throne in 1603, the earldom of Tyrconnell was conferred by the new King on *32 Ruaidhrí Ó Domhnaill of Tír Chonaill, who after surrendering his property received a regrant of the greater part of his ancestral territory, to be held thenceforth by feudal tenure from the English Crown. Tír Chonaill was soon to become effectively the County of Donegal and the North-West of Ireland was to pass under English dominion for the first time in history.
In 1607, the Flight of the Earls left Ulster virtually defenceless against any aggression. After the Earls of Tyrone and Tyrconnell had set sail from Lough Swilly, Sir Arthur Chichester, Lord Deputy for King James, proclaimed to the Irish inhabitants, bereft of their chiefs, that they could retain their lands. But the opportunity for extensive confiscation was not to be lost, and the official undertaking was promptly dishonoured, when in the summer of 1608 a Royal Commission found nearly all the territory of Donegal and five other counties in Ulster to have fallen to His Majesty. The counties of Monaghan, Down and Antrim were not included in the new Plantation scheme.
The Royal title was never openly, I think, continued his Lordship, based by Dublin Castle on conquest, “a title which the State here hath not at any time taken hold of for the King against the Irish,” according to Sir John Davies, Attorney-General for Ireland, in a despatch written in 1607; see Morley’s “ Ireland under Elizabeth and James I, ” p. 362. The Case of Tanistry was decided in the King’s Bench, Dublin, in Hilary Term of the 5th year of King James I; see Davies at pp. 40-41, or the Dublin edition of 1762 in English at pp. 111-2; it pays a high tribute to the English rule of law, whereby the royal conqueror waives his right by conquest over the ancient inhabitants taken into his possession, in splendid contrast to conditions under a despotic monarchy or tyranny, where all are “as villains or slaves, and proprietors of nothing but at the will of their Grand Seignior or tyrant, as in Turkey and Muscovy.”
But the statecraft of a resourceful age insisted upon a colourable juristic title for the expropriation of Irish property and divers royal claims were evolved to preserve a veneer of legality. As to fisheries in particular, the satraps who made the survey of 1608, Davies among them, asserted a forfeiture of fisheries on the western bank of the River Foyle by escheat on an alleged attainder for treason of the Earl of Tyrconnell after his flight; alternatively, a fishery might be effectively forfeited on the pretence that the adjoining land was monastic property, though the English law for monastic forfeitures did not apply; or a sweeping royal prerogative, improvised by a Star Chamber, would appropriate an Irish salmon river to the English Crown.
In 1613, the precursor of the principal claimants in this action received by royal Charter the official style of “The Society of the Governor and Assistants, London, of the new Plantation in Ulster within the Realm of Ireland.” As the name implies, that society was created in London, on the lines of the Virginia and East India Companies.
His Lordship said that when the spacious project of the Plantation was taking shape, the lords of the Council at Whitehall determined to secure the co-operation of the metropolis, whose vast resources and influence marked out the City of London as the predestined undertakers of so noble a colonial enterprise. Pressure had to be exerted to overcome the misgivings of the less prosperous among the worshipful companies representing the commerce of London, but agreement was eventually reached and in 1613 King James I issued his letters patent to the nominees of the City. An authoritative account of the successive episodes will be found in Dr. Moody’s “ Londonderry Plantation. ”
The salmon fishery of this action, continued his Lordship, lies in a link of the River Foyle near the town of Lifford and wholly within the County of Donegal. In the Plantation period we have the little town of Strabane in County Tyrone on the eastern bank of the River Mourne about half a mile above the little town of Lifford with its fort on the western bank of the water in County Donegal; between the two towns the River Finn runs into the River Mourne; their confluence just above Lifford begins the larger river, the river that we call Foyle today. The Foyle runs from Lifford to the stronghold of Derry and from Derry into the ocean waters of Lough Foyle. The river takes a northerly and north-easterly course. From the point where the Finn and Mourne unite to form a single river onwards the midway of the river delimits the County of Donegal to the west from the County of Tyrone to the east until at a point just beyond Dunnalong the river crosses into County Londonderry, which thereafter embraces the land, not on one bank of the Foyle only, but on both sides of the river.
The River Foyle on its way north forms, about 1500 yards below Lifford, a narrow island (which I shall call the Island), by forking into two separate streams to meet and re-form the single river at the end of the Island, which is less than 3 miles long; the more easterly of the two streams is the main *33 river, and the westerly, on which this action centres, I shall call the Branch Stream.
The Branch Stream provides several fishing shots for netting salmon and those shots constitute the fishery that the plaintiffs claim in this action. The Branch Stream flows through an area known in the 17th century as the Two Quarters of Clonleigh; two quarters were supposed to be a moiety of the Irish land unit called baile biadhtaigh; we know that the Two Quarters of Clonleigh comprised 750 acres of land. The Two Quarters included the Island (or at one time several eyots), formed by the bifurcation of the river and the eventual confluence of the two streams. The Two Quarters were bounded by rivers on three sides, on the east by the Foyle, on the south by the Deele, a tributary running into the Branch Stream near its opening, and on the north by the Swillyburn, a tributary which joins the Foyle a short distance below the Island.
The mainland, if I may so describe it, of the Two Quarters has an eastern bank running from the mouth of the River Deele for some 2½ miles along the Branch Stream and then for nearly two-thirds of a mile along the main river to the mouth of the Swillyburn. For its first stretch after leaving the main river, for two-thirds of a mile up to the mouth of the Deele, the Branch Stream, while having the Island to its right, runs along a left bank outside the Two Quarters; the plaintiffs claim all the fishings of the Branch Stream; that short left bank abuts, not on Clonleigh, but on the waters adjoining, known as the Greenbrae fishery; the Greenbrae fishery, which has several fishing shots, may be taken for practical purposes to extend from the junction of the River Deele with the Branch Stream as far as Lifford.
The waters are fished for salmon with draft nets from the Greenbrae bank above and opposite the Island, from the mainland of Clonleigh opposite and below the Island, from both sides of the Island, that is to say in the Branch Stream and in the main river, and from the Tyrone or eastern bank of the main river both opposite the island and at other places. This action is brought to establish against the public, the privilege of the plaintiffs to the exclusive enjoyment of the Branch Stream fishery, and the fishing of the main river is not in issue.
It is settled law that by virtue of Magna Carta, a several fishery in waters tidal and navigable, to the exclusion of the public right, presupposes, as the condition of its validity, the existence before 1189 of an effective veto on the natural right of the public to fish those waters as an arm of the sea.
The plaintiffs the Foyle and Bann Fisheries Limited, and the Society of the Governors and Assistants, London, of the New Plantation in Ulster, within the Realm of Ireland, have made common cause in this action and together they have filed an elaborate statement of claim. They claim that the Foyle and Bann Company is the lessee in possession under two recent leases to expire in 1950 of a several fishery for salmon and other fish in a link in the River Foyle in the County of Donegal, which his Lordship said he had called the Branch Stream; and from time whereof the memory of man is not to the contrary a several or exclusive fishery has existed in the said portion of the River Foyle. This averment is vital; it denies a public right of fishing in the Branch Stream, and the necessary implication is that the Branch Stream is a tidal and navigable river.
The claim goes on to plead for the Society a title under letters patent of 1613 from King James I and under letters patent of 1662, from King Charles II. This document, said his Lordship, is the main foundation of the claim and he would call it the Charter. They aver that since 1662 the Society has been in sole and exclusive possession of the fishery granted by the Charter including the fishery of the Branch Stream. The plaintiffs made an alternative claim through an episcopal title. They aver that the Lord Bishop of Derry claimed fishing rights in the Foyle, in derogation of the rights of the Society under the Charter and that by a lease made to compose differences in 1676, the Lord Bishop demised to the Society at a yearly rent his fishings in the Branch Stream. Further, that the Statute 3 and 4 Anne Cap. 1 vested in the Society all the fishing rights of the See of Derry in the waters therein described, at any time claimed or enjoyed by the Bishops of Derry; and that, so far (if at all) as the exclusive right of fishing in the Branch Stream was not effectively vested in the Society by the Patent of 1613, and the Charter, that exclusive right became vested in the Society by that Act and that the Society has been in sole and exclusive possession of that exclusive right of fishing in the Branch Stream since the passing of that Act.
The plaintiffs then pass to a different claim under a short lease to the Society expiring at Michaelmas 1950, of the Greenbrae Fishery which includes water at the southern end of the Branch Stream: this said his Lordship, may be called the Hansard Title.
The statement of claim then charges the defendants, other than the Attorney-General with trespass upon the fishing and obstruction and concludes with:— (a) A prayer for *34 a declaration that the Foyle and Bann Company, as assignees of their two leases, and the Society, as owner of the reversion on both leases, are entitled to and possessed of the fishery of the Branch Stream; (b) a claim to an injunction to restrain trespass and obstruction and (c) a claim for damages.
The Attorney-General puts the plaintiffs to proof, formally denying most of their averments; he avers that the Branch Stream has always been tidal, that there was in 1189 and still is a public right of fishing therein, that at no material time was an exclusive right to fish there vested in the British Crown or in anyone to the exclusion of the public, that a several fishery there before 1189 was a historic impossibility, and that the Patent of 1613 and the Charter, so far as they purport to grant the alleged several fishery, are contrary to Magna Carta and void. The other parties plead defences substantially to the same effect.
The onus of proof was much discussed. I am content to follow Lord Hale, C.J., in Fitz Walter’s Case, 1 Mod. 105:—
“In case of a private river, the lord’s having the soil is good evidence to prove that he hath the right of fishing; and it puts the proof upon them that claim liberam piscariam. But in case of a river that flows and reflows, and is an arm of the sea, there prima facie it is common to all; and if any will appropriate a privilege to himself, the proof lieth on his side.”
The Society’s main undertaking in this action, continued his Lordship, as it was expressed by Lord O’Hagan in Neill v. Duke of Devonshire, 8 A. C. at p. 158, was to show that the fishery in dispute had come to it under a valid and effectual royal grant, which had been sustained by the continuous use and enjoyment of the Society. Mr. Fitzgibbon, continued his Lordship, founded his main argument on an irresistible presumption of right for an exclusive fishery in private hands under a royal grant, followed by very long possession. Evidence of possession was therefore vital. A Court will, if possible, ascribe a lawful origin to long enjoyment in accordance with the title pleaded. In matters of antiquity, as Viscount Sumner said in Busby v. Avgherino, [1928] A. C. at p. 294, the rules of evidence are liberal, but he insists that the proof, though scanty, must still, in the words of Lord Eldon, L.C., be “rational and solid.”
His Lordship stated that he proposed first to examine the title set up by the plaintiffs under direct royal grant, then to pass to their title from the See of Derry, and then to see how they stand under the Hansard title. The first grant to the Londoners was made by King James I at Westminster on the 29th day of March, 1613.
Having justified the magnanimous undertaking, the Patent explains how the reluctant Londoners come to be chosen to carry it out:—
“And Whereas our beloved and faithful subjects the mayor and commonalty, and citizens of our City of London, burning with a flagrant zeal to promote such our pious intention in this behalf, have laudably undertaken a considerable part of the said plantation in Ulster, below in these presents mentioned, and in other respects are making progress therein.”
After this auspicious introduction this Patent, continued his Lordship, first creates a new County of Londonderry, incorporates the City of Derry (the anglicised version of Doire Cholmcille) under the new style of Londonderry, and establishes a mayor and corporation; it then incorporates six and twenty honest and discreet citizens of London to be “The Society of the Governor & Assistants, London, of the new Plantation of Ulster within the Realm of Ireland” and provides for the constitution of the body and the annual election of the Governor and Assistants by the Common Council of the City of London; the Patent then grants extensive property in the North of Ireland (including the piscary of the River Foyle) to the new society, with a lease of the customs for 99 years; and there are very numerous subsidiary provisions.
In 1635, the Londoners were haled before the Court of Star Chamber to answer a number of grave charges in connection with the Patent itself and the Plantation; and their society was found guilty on all counts and sentenced to pay a fine of £70,000 and to surrender its Patent.
In 1641, the English Long Parliament declared the Star Chamber sentence to have been unlawful and unjust, and went on to direct that the Londoners should be restored; shortly afterwards King Charles I perforce relented and promised restoration. But the wars in Ireland and in England supervened; and nothing was done until 1657.
The Society places no reliance whatever on letters patent purporting to have been issued on 24 March, 1656 (-57), that is 1657 new style, by the Lord Protector, whereby the former possessions of the body created in 1613 were granted to a reconstituted body by the same name. The Stuart Restoration soon followed and on the 10th day of April, *35 1662, and immediately before a Dublin Parliament passed the comprehensive Act of Settlement of His Majesty’s Kingdom of Ireland, the City of London obtained from King Charles II at Westminster new letters patent, being the Charter to the now existing Society, which is the true foundation of the Society’s first claim of right in this action.
The Caroline Charter of 1662, issued in the form of letters patent, follows closely the model of 1613 and it appears to have been enrolled in England and in Ireland.
Possession loomed large in Mr. FitzGibbon’s argument from another standpoint, apart from construction, continued his Lordship. He relied on possession to entitle him to succeed without any of the evidence which he adduced in order to show the existence in early times and also in medieval Ireland of private fishery rights in such rivers as the Foyle. And he devoted a considerable portion of his elaborate argument to establishing his thesis from the leading authorities. To summarise his argument, he said there was no need to evoke any ghosts from the mists of history, because, where possession of a fishery has been enjoyed as of right, to the exclusion of the public, for 300 years or more, the irresistible presumption is that the possession rested on a lawful title; and that was the position of the Society; he said that long possession was enough by itself to discharge the onus of proof upon the plaintiffs, and that they had only to put down their royal Charter, without troubling about the royal title to grant the Charter, and their long possession under their Charter would carry them; he said that there was no need for the plaintiffs to give any evidence at all of the existence of the fishery as private property before it was granted to the Londoners, because, when there was nothing to show the origin of the fishery as private property to be modern, the persons in possession would be entitled to the benefit of the presumption of good title; he added that, if the plaintiffs proved user under their patent or patents, the intrusion upon the fishery of such persons as the Hansards and the Abercorns was immaterial; and, on his argument, the only way for the defendants to defeat the plaintiffs’ claim, based on their possession under the patents, would be to prove either that nobody had enjoyed any part of the Foyle as a private fishery before 1600, or that the fishery could not have existed as private property before Magna Carta; the argument was based on statements of the law by Willes, J. in Malcomson v. O’Dea, 10 H.L.C. at p. 618, and by Lord Blackburn in Neill v. Duke of Devonshire, 8 A.C. at p. 180, where, however, the evidence showed grants by King John and King Edward I of England, of fisheries in stretches of the Shannon and Blackwater respectively, close to the piscaries in issue. Kennedy, C.J., in the River Erne Case, [1934] I. R. at p. 65, comments that, while long possession justifies every assumption in favour of a legal title, yet in Tír Chonaill, where the land had not been subject to English law, possession after 1603 has not the same weight as elsewhere to prove an origin legal in English law. Willes, J., himself 9 years after the Shannon Case in Edgar v. English Fisheries Commissioners, 23 L.T. (N.S.) 733, shows how the presumption of title is parried by proof of actual origin in a grant made after the time of King Henry II; compare Attorney-General v. Ewelme Hospital, 17 Beav. at p. 390. Moreover, early 17th century records disclose the prevalent theory of the prerogative as the mainspring of royal fishery grants; we shall see that theory proclaimed by the equivalent in Ireland of the Star Chamber, in utter disregard of Magna Carta. Consequently, as against Mr. Fitzgibbon’s presumption, the Society’s long continued possession on the Foyle seems to derive originally from royal patents issued at a time when the royal advisers endowed the Crown of England with the privilege, unfounded in law, of creating a fishing monopoly at its will in any tidal navigable river of Ulster however newly acquired as a royal possession and by whatever title added to the royal domain.
The grant of the Charter to the Society was resented in Ireland, continued His Lordship. After King James II had landed at Kinsale, he convened a parliament in Dublin and it sat from May to July, 1689; among the laws there passed by the King, lords and commons, was an Act to repeal the Acts of Settlement and Explanation whereby King Charles II was felt to have occasioned grievous injustice in Ireland; section 40 of the repealing Act was directed against the Society, although its acquisitions had not been mentioned in either of the two Caroline Acts; that section avoided all those acquisitions by vesting all the Society’s hereditaments in the King, his heirs and successors, to be part of the stock of “reprisals” created by the Act. Though informality inevitably attached to the summoning of this parliament, it seems, for the time when it was held, to have been fairly representative; see Thomas Davis’s Patriot Parliament. In London a convention, wholly irregular, had in the preceding February presented the English Crown to William of Orange and his wife, Mary, on the pretence that King James had abdicated. That “ultra-constitutional law,” as Hallam dubs it, was made effective by the stubborn resistance of Derry and the Williamite victories in Ireland and the Flight of King James, and after the *36 war was ended the fait accompli had to be accepted both in Ireland and in England. A further session of the London convention passed an enactment towards the end of the year 1689, purporting to avoid the proceedings in Dublin, which offended English interests in many directions, and in 1690 the acts of the convention were ratified in London by a Williamite parliament. But it was not until 1695 that a parliament in Dublin was induced by the statute, 7 William III, cap. 3, to declare all acts of the late pretended parliament in Dublin to be null and void to all intents and purposes whatever. The action taken by the Irish parliament against the Society is noteworthy and raises two questions of law:
(1) Was the objectionable enactment, which called forth a subsequent statutory avoidance, effective in law to vest the Society’s property in the English Crown, so that it would have passed eventually to King William and ultimately to this State? And (2) if so, was the language used for the statutory avoidance of the acts of the parliament of 1689 effective in law to divest the Crown of the property so effectively vested in it? I express no opinion on these problems, which have not been argued.
Referring to the examination of the episcopal title through which Society asserts a separate claim to a several fishery in all but the little Greenbrae strip of the Branch Stream, His Lordship said the documents are numerous. The story can be most readily followed through the successive surviving records that make express mention of Clonleigh or the Branch Stream, collated with a few others that may throw light on them.
Dr. Theodore William Moody was the plaintiffs’ historical witness on their several claims, and his evidence and cross-examination occupied more than 13 days. His Lordship said that his complete mastery of the complicated transactions and of the manifold documents recording or bearing on them, his searching analyses, his learned historical equipment and his candour, put his evidence on the highest plane of expert testimony, so that his contribution has been of great value to him.
His Lordship said that Dr. Moody gave evidence on the 17th century as one who had made an intensive study of his period and its scattered materials; that was the testimony of a highly qualified expert, entitled as such to express opinions, by way of piloting the Court over unfamiliar and difficult ground. His right so to do cannot be controverted and authority will be found for it in Wigmore on Evidence, 3rd ed., paras. 557, 665b, and 1923. As Cozens-Hardy, M.R., intimated in Lewis v. Port of London, 111 L.T. at p. 778, one expects and receives from a skilled witness evidence in the nature of a mere opinion.
Dr. Moody, of course, based his conclusions generally on specific documents, but occasionally a question was raised as to the admissibility in evidence of a document thus introduced to support some particular view. I think I went, continued His Lordship, as far as one could go in a Court to admit documents thus adduced. But I further think the formal admission of most of them as evidence to be quite unnecessary.
I am not speaking here of documents of title proper which, unless admitted, had to be properly proved; I am thinking of the ancillary papers, necessary or useful to a proper understanding. The admissibility as evidence of those documents seems to be unessential, once it is recognised that the witness as an expert, was entitled and indeed bound to familiarise himself with all the relevant materials. He could not do that without resorting to all available sources, and he could not tell whether any particular pièce justificative, if tendered in Court to support a particular historical conclusion, would be admitted or rejected as legal evidence. His opinion, once formed, on a subject of which he was master, would remain his opinion after the Court had refused to receive as evidence a document that had gone to form his opinion. He had to be ready with the materials that had guided his mind, whether they turned out to be legally evidence or not. And I could not reject, continued his Lordship, an othewise persuasive conclusion from an expert merely because his deductions were not based on legal proofs. The expert is normally the best judge of the value of his data, and far better qualified to appraise them than a Court can be. The Court may or may not accept his inferences, but, once the Court is satisfied of the expert’s integrity and capacity and judgment, I think the furthest point to which it can push the inadmissibility as evidence of certain of his proofs is to scrutinize his conclusions from data of that kind rather more closely. Logically, the evidence before the Court is the expert’s expert opinion, not his materials, and the opinion may be acceptable and accepted, though the whole of his materials be inadmissible as evidence. It would be easy to illustrate this view of the matter by examples from the commoner fields of expert evidence. His Lordship said he accepted the proposition, in effect put forward by Mr. Fitzgibbon for the plaintiffs, that a historical expert, testifying to his expert *37 opinion, cannot be confined for it to documents admissible under our rules of evidence.
His Lordship then dealt one by one with the documents tendered in evidence mentioning Clonleigh.
Amongst the historical documents dealt with by Dr. Moody was the Civil Survey, 1655—the immense Cromwellian scheme for the confiscation of Irish land. This scheme included a survey by inquisition and computation, called the Civil Survey, and a survey by admeasurement called the Down Survey. Dr. Moody stated that those documents form a valuable record, and that historians ascribe to them the highest authority.
The Civil Survey was carried out by Commissioners with the aid of juries and the information recorded has to be collated with the Down Survey maps, made under the direction of Dr. (afterwards Sir William) Petty to complement the rougher records of the Civil Survey. Those maps constitute the first comprehensive and systematic effort at a cartographic delineation of the whole country. The first scientific study and appraisal of them is to be found in Dr. Yann Morvran Goblet’s learned Transformation de la Géographic Politique de l’Irlande au 17e Siècle, published in Paris 18 years ago by the brilliant author of L’Irlande dans la Crise Universelle.
His Lordship having reviewed the material evidence for the 17th century up to the termination of the lease taken by the Society in 1677, said that a decision on the Society’s first claim, the claim directly under the Charter, could now be made. For this, said His Lordship, evidence of possession under the Charter was an essential proof and was indispensable to make the Charter an enforceable grant. No controversy exists as to the principle. In Neill v. Duke of Devonshire, 8 A.C. at p. 143, Lord Selborne, L.C., after reciting shortly the history of the fishery in dispute, says:
“Under the circumstances which I have stated, the real controversy in this case is as to the sufficiency of the evidence of possession and enjoyment, without which, even the clearest apparent title to a several fishery, on paper only, would not exclude the public right.”
In Ireland I may recall, said His Lordship, the words of Sir Andrew Marshall Porter, M.R., on a claim to a several fishery in the Nore—Tighe v. Sinnott, [1897] I. R. at p. 145:
“I have no doubt whatever that the existence of a several fishery …. ought to be treated as established, provided the evidence …. shows that a several fishery was in fact held and enjoyed under and in accordance with the documentary title. Unless the evidence establishes this, however, no paper title, however clear, will be of any avail.”
There is the indispensable proof, imperatively required of the plaintiffs. They have shown possession by the Londoners of shots in the main river at different times, though competitors clung despite them to fishings in the Upper Foyle. But, even if the Society could contrive to efface the county limitation in the chapter by reason of the Londoners’ enjoyment of shots in the main river outside County Derry under the Patent of 1613, and then after its forfeiture, followed by the Society’s own possession after the Charter, I have at several periods cogent evidence that the main river and the Branch Stream were regarded as distinct waterways; and that was natural.
In my judgment, continued His Lordship, on the Society’s claim to an original title under the Charter, the evidence manifestly fails to answer the test. Whatever may be said for the Londoner’s enjoyment of fishing shots on the Upper Foyle in the 17th century I find on the evidence that, except as Bishop’s lessees, the Branch Stream knew them not.
The evidence is not merely negative. From the facts proved the conclusion seems irresistible that the See of Derry, claiming as of right, did effectively hold the Clonleigh Fishery of the Branch Stream, either directly or indirectly through its lessees, from a date a year or two after the Londoners’ Patent of 1613 until the water was let to the Society by the See in 1677, probably without intermission apart from an immaterial break during the disturbed middle years; and from 1677 into the 18th century the See continued to hold that fishery through its lessees or by direct occupation. Hence, besides long adverse possession as of right by the See, we have the Society eventually reduced to acquiring the fishery as a mere lessee at a rent to a rival proprietor, precisely as it might have done, if it knew its Charter to confer no fishing rights whatever in the Branch Stream. I, therefore, hold, said His Lordship, that the Society did not acquire the fishery of the Branch Stream under the Charter and that its claim to a several fishery there by its own original title fails; and its precursor under the Patent of 1613 was in no better position.
The Society’s alternative claim through the See of Derry and the legal effect of the Act *38 of 1704, now require consideration, continued His Lordship.
The Society’s second claim through the Bishops depends directly upon the Act, 3 & 4 Anne, cap. 1, passed by the English Parliament, and on the episcopal title which I have been tracing. The question whether an English Act bound Ireland, considered in Hallam’s Constitutional History of England, chapter 18, with conspicuous fairness, has not been debated; consequently, though this opinion is not likely to be ordered, like Molyneux’s Case of Ireland Stated, to be burned by the common hangman, I shall refrain from examining the problem, said His Lordship.
The statute of 1704 was in the nature of a private Act of Parliament; it was passed to enable the Bishop of Derry to give effect to an agreement of sale made between the See and the Society. Negotiations had been begun in the time of Dr. William King, who succeeded Dr. Hopkins as Bishop of Derry in 1691; Dr. King became Archbishop of Dublin in 1703, and the compromise effected by the legislation was finally carried through in the time of his successor, Dr. Charles Hickman, appointed Bishop of Derry in the same year. The title is “An Act for settling the right of several parcels of land …. and of certain fishings …. in the Society …. and for settling a rentcharge of £250 per annum upon the Lord Bishop of Derry and his successors for ever.” The Act, which disposes of many interests in the Counties of Londonderry, Antrim, Tyrone and Donegal, recites the former disputes and then enacts (section 1) that the Society shall for ever hold certain specified lands and a fishing called the Cutt or Gutt near Ballynass;
“and also all the fishings and rights of fishing …. belonging to the said Bishop or See of Derry, of what nature or kind so ever, in the rivers of Ban and Loughfoile, within the county of Londonderry, or of or in any other rivers, waters or fishing places within the said county of Londonderry, or in the counties of Antrim, Tyrone, or Donegall, and which have at any time heretofore been claimed or enjoyed by the Bishops of the said See of Derry for the time being.”
Mr. Murnaghan insists that the defendants in this action have come to meet a claim by the Society through the Bishops to a particular fishery, located by the statement of claim, paras. 1, 2, 12a, 12b, and 12d, in the River Foyle in the County of Donegal, whereas the Act confers no fishing rights in the Foyle on the Society outside the one County of Londonderry, with the result that the statute has no relevance to the plaintiffs’ claim in this action. In my judgment, said His Lordship, that objection is justified and must be sustained, since the claim remains in this particular unamended.
Looking further into the effect of the Act, continued His Lordship, the plaintiffs have launched this action and have fought it to the end as an action to establish a several fishery in tidal and navigable waters against the public. The plaintiffs have failed in their claim to a several fishery in the Branch Stream by force of their own charter and so they claim under the Act of 1704 and the episcopal title instead. But the Act, passed in order to give effect to a private compact, saves the rights of the public as being no party to that compact; whatever private rights in the fishery of the Branch Stream may have been asserted and enjoyed by the Bishops, who were in a position to exclude most competitors by the strong hand. His Lordship said that he could not hold the Act to have vested in the Society any right which belonged in law to the public and not to the See nor to any individual Bishop. Neither laches nor lapse of time can forfeit the public right.
The question raised by the Act, continued His Lordship, the wording of which is singularly elusive if any several fishery was within its scope, is whether the See of Derry ever had a several fishery in waters prima facie subject to a public right of fishing, upon which, to quote Viscount Haldane, L.C., in the British Columbia Case, [1914] A. C. at p. 171, no restriction can be put by an exercise of the prerogative whether in the form of a grant or otherwise. There was at no time any pretence of bestowing a specific fishery in the Branch Stream as a parcel of the manor of Clonleigh, newly created for the See, and the grants to the Bishops of fishing rights pertaining to the Two Quarters seem to have carried nothing more than the natural right of any riparian owner to share the benefit of the adjoining waters with the public; I am for my immediate purpose assuming for the Bishops a good title to the lands of Clonleigh washed by the Branch Stream, though that title is far from appearing to be unimpeachable. The See is confronted with the further difficulty that an exclusive right to fish without stint, commercially and not for domestic needs, is a privilege which the law in England, and presumably in Ireland, is reluctant to recognise as an appurtenance to land; and these are tidal and navigable waters; see Edgar v. English Fisheries Commissioners (1871) 23 L.T. (N.S.) 733, and Chesterfield *39 v. Harris [1908] 2 Ch. 397 and [1911] A. C. 623.
The plaintiffs having admitted that the Bishops got no several fishery, his Lordship accordingly held that the Act did not operate to pass to the Society the fishery in the Branch Stream, to which the Bishops of Derry never acquired an exclusive title in the 17th century and to which the public is entitled by reason of the navigable and tidal waterway there, if that apparent title is not displaced.
In his closing address, continued His Lordship, Mr. Fitzgibbon presented the episcopal case for the Society in another light. Admitting that the See of Derry got no several fishery by any patent issued by the Crown of England for the Branch Stream, he submitted that, while in law the Londoners had always been the true owners of that fishery under the Patent of 1613, or under the Charter, successive Bishops of the See of Derry had contrived to appropriate for the See that particular stretch of the Londoners’ proper fishery of the Foyle, with the result that the See of Derry had in fact enjoyed that misappropriation for so many years in the course of the 17th century that this Court would feel bound to ascribe a lawful origin to the possession of the See; therefore the Court must presume that the Bishops were exercising exclusive fishing rights in the Branch Stream by virtue of a sub-grant from the Londoners as the true owners; consequently the Society under the Act of 1704 recovered the several fishery there, which the See had enjoyed as donee under a presumed grant by the Londoners and not under any pretended title of its own in opposition to the Londoners, who as royal grantees were all the time the true owners of the fishery.
The first objection to this novel, if ingenious title, continued His Lordship, is Mr. McGonigal’s protest against the claim as an afterthought, in no way suggested to the defendants by the amended statement of claim; I think that objection is fatal. Mr. McGonigal further urged that a party to a suit cannot on failing to sustain the title pleaded, fall back on another and unpleaded title, and he cited ample authority for this very reasonable proposition; I think, said His Lordship, this objection is fatal, too.
Mr. Fitzgibbon referred to Little v. Wingfield, 8 Ir. C.L. 279, and 11 Ir. C.L. 63, a case decided in Ireland shortly before Malcomson v. O’Dea, 10 H.C.L. 593. It should be noted, continued His Lordship that the Wingfield case was a dispute between two private individuals both assuming a Stuart Charter to have been effective to grant a Several Fishery in tidal and navigable waters, that the public interest was wholly unrepresented.
O’Brien, J., in the Exchequer Chamber at p. 79 says:
“It is, in fact, the common case of the plaintiffs and defendants that the Crown had been entitled to a several fishery at Scurmore …. and the question is not as to the existence of a several fishery at Scurmore, to the exclusion of the public, but whether the plaintiffs or defendants are entitled to it. It may be that this doctrine of presumption should not be relied on for the purpose of proving the existence of a right to a several fishery, in a tidal navigable river, to the exclusion of the common right of the public.”
To close this chapter, said His Lordship, any such weakness in the royal origin of the episcopal title as time might cure to defeat merely private interests ceases to be worth investigating, once it is established that the Bishop’s patents do not disturb the public fishing right in the Branch Stream.
The conclusion to which I am led, continued His Lordship, on the two main heads of the plaintiffs’ claim have the regrettable effect of debarring me from examining here some of the most attractive phases of this interesting suit, including the determined effort made by the plaintiffs to displace the evidence as to the ancient Irish law of fisheries on which the Supreme Court decided the River Erne Case, [1934] I. R. 44; I need not now investigate the erudite evidence of the sages of the Brehon law as to the meaning and implications of certain ancient law texts, where the boundary line between conjecture and clear inference is still so hard to draw. And I can make no use of the materials supplied by students of Irish history on the difficult 16th century period, nor of the immense labours of Dr. Otway Ruthven, her evidence on Magna Carta, on English penetration into the North-West and into Tír Chonaill, and on medieval documents, illuminated as that evidence was by her distinguished scholarship, which made an outstanding contribution to the case for the Attorney-General. On all this evidence I shall confine myself, said His Lordship, to a very brief commentary, lest to pass it over in silence might seem a discourtesy.
In the matter of Brehon law the plaintiffs displayed great courage; undeterred by the problem of fitting an alien conception of a *40 several fishery into the persistent native system of tenure by the fine and undeterred by Mr. McGonigal’s thesis, supported by the British Columbia Case, [1914] A. C. 153, 171, that their proof, if established, could not possibly answer the requisites for a several fishery in Magna Carta, which, he said, presupposed a polity and a jurisprudence on the contemporary English model and no others, the plaintiffs embarked (quite unnecessarily according to their own view) on the truly formidable task of showing for the Foyle that Brehon law “incorporated the feudal notion of the ownership of fishing in tidal waters.”
Dr. Binchy explained the difficulty of penetrating into the 7th and 8th centuries. I infer that the law that has come down to us in a fragmentary way is traditional, and that it was academic; one cannot say that it was, as put into practice, uniform throughout Ireland at any time, nor that it remained unchanged; it naturally developed from time to time and varying customs may well have prevailed under different jurisdictions; there is no evidence that the texts cited applied in Tír Chonaill, we have to depend on scattered references to rights of property in texts devoted to other topics; and no tract on fishery regulation survives. The law still has to be deduced from elliptical, incomplete and often corrupt texts, which appear to be copies of copies of copies of archaic manuscripts, reproduced by much later hereditary scholars, to the accompaniment of unreliable and often unskilled and sometimes unscrupulous interpretations. The study of Irish law, seriously undertaken only in recent times, is still in its infancy and the conclusions of the most experienced scholars are tentative, and seem at best generally to represent plausible historical speculation. Dr. Dillon’s view is that the law texts cannot be used as a solid basis for any conclusion at all until they are edited and examined.
As to medieval Ireland, Dr. Otway Ruthven made a thorough search for any record of several fishery on the Foyle, but found no mention of any fishery there at all. And there was no effective English occupation of the Foyle area before the 17th century.
By way of showing or suggesting the existence of several fisheries in Ireland of the 13th and 12th centuries copies were put in of a few early monastic charters, but they give me no help. First they have no connection with Tír Chonaill; secondly, even when not expressed, like the grant of the Abbey of Ferns by Dermot MacMurrough, to be made with the counsel and assent of the magnates, they stand in a category apart, because their inspiration is religious in an age of religious faith and some of the grants are made as “gifts to God”; compare Pollock & Maitland’s History of English Law, 2nd ed., vol. I, p. 243; thirdly, the grantees came from England and the documents are redolent of Anglo-Norman law and practice, and Dr. Otway Ruthven is of opinion that one cannot safely deduce from them, if they are genuine, the existence of several fisheries under Irish law; and fourthly, though, as Dr. Binchy recognises, forgeries of early monastic charters have been numerous in England, the authenticity of these particular charters had not been tested by any expert in the recondite science of diplomatics.
The third claim of right made by the plaintiffs, through the Hansard title, may be summarised in this way, continued His Lordship: The statement of claim avers that under a Stuart patent of 1612, Sir Richard Hansard received a grant of 4 acres of a meadow called Stamore, that in purported exercise of a claim of right under that patent Sir Richard Hansard and his successors had been in possession for more than 150 years of a part of the Foyle known as the Greenbrae Fishery and that one, Crichton, in whom was vested all the estate (if any) of Hansard, by lease of 24 March, 1920, demised for 31 years from 29 September, 1919, to the Society a specified moiety in County Donegal of the fishery known as the Greenbrae Fishery, together with the exclusive right of fishing therein, that the Society by lease of 20 January, 1919, demised all the Foyle piscary from the Greenbrae Fishery to the open sea, and by lease of 27 March, 1920, demised the aforesaid moiety of the Greenbrae Fishery, and that the lessees’ interest in these leases (expiring on the 28th and 25th days of September, 1950, respectively) are now vested in the Society’s coplaintiffs, the Foyle and Bann Fisheries, Ltd. The claims for a declaration and an injunction and damages follow.
As against the public right to fish in tidal and navigable waters, it is, continued His Lordship, impossible for the plaintiffs to succeed in this action merely by admitting the Hansard interest to be in possession; they would have had to go further and to prove for the Hansard interest a lawful title of a character to over-ride the public right; and that they have not done. The only subsisting title (if any) that has been estab *41 lished in the piscary of the Foyle against the public is the title of the Society under a contradictory clause in a Stuart Charter of 1662; if that be a valid title in the Upper Foyle, the only way in which the plaintiffs can for their purposes in this action avail themselves of the Hansard possession, admittedly unsupported by any royal grant of a several fishery, is by inducing the Court to presume a sub-grant from the Society to the Hansard interest to enjoy the Greenbrae fishery; and that way is not open to the plaintiffs on the pleadings. It is idle to prove that the Hansard interest is in possession by its lessees and nothing more, in a claim against the public.
Finally, continued His Lordship, lest counsel’s insistence on possession for this third head of the plaintiffs’ claim may somehow have been meant to suggest that the Foyle and Bann Company, now in occupation of the Greenbrae fishery, is entitled to judgment in trespass, I must reject any such claim. If this were simply an action in trespass by plaintiffs in possession, the alleged trespassers would be entitled, as they do here, to defend as members of the public and so to put the plaintiffs’ title to the fishery in issue against a claim to judgment for trespass. (Nicholls v. Ely Beet Sugar Factory, [1931] 2 Ch. at p. 86.) Nor is this action framed as a possessory suit; based on three years’ possession; see Furlong’s Landlord and Tenant, 2nd ed., vol. II, p. 948; the plaintiffs in their statement of claim advisedly set out their title to the Greenbrae fishery and proceed in their prayer to ask this Court for a judicial declaration of their title to the several fishery which they claim in the Branch Stream (described as “the Islands Fishery”) and an injunction against trespass upon the said fishery, which the prayer treats as a single fishery; all the defendants have joined issue on the title to that fishery, which they claim for the public; there is no question, said His Lordship, of any injunction to protect mere possession, nor was any authority cited to me to support any such claim; an apposite precedent for the position resulting from pleadings raising the fundamental question of title will be found in O’Neill v. McErlane, 16 Ir. Ch. R. 280 and 17 Ir. Ch. R. 86; see in particular the judgment of Blackburne, L.J., on the appeal.
The conclusion of my investigation upon the third head of the plaintiffs’ claim, said His Lordship, is that in my judgment, quoad the plaintiffs, the public right to fish prevails in the Greenbrae strip, as it does in the remainder, of the Branch Stream.
The result of the foregoing considerations is that action is to stand dismissed.
Attorney General (Mahony) v. Cooper
[1954] IR 1
Maguire C.J.
Supreme Court.
This appeal is from the order and judgment of the President of the High Court who, having considered the question of law arising on a Case Stated by District Justice Flattery, held that the District Justice was not correct in law in holding that s. 64 of the Fisheries (Ireland) Act, 1842, as amended by s. 21 of the Fisheries (Statute Law Revision) Act, 1949, applies to a fish pass at the Lower Falls of the river at Ballisodare which the defendant was charged with obstructing so as to prevent the passage of fish contrary to the section.
It was not denied that the defendant had in fact obstructed the pass in a manner which would contravene the section in question if it applied. The defence was that the section did not apply because the pass in question was not constructed under the authority of the Fisheries Act, 1842, but under the authority of a special private Act of Parliament, 1 Vict., c. lxxxix, known as the Cooper Act. The prosecution answered this by saying firstly that it did not matter whether the fish pass was constructed under that Act or under the Fisheries Act, 1842, as s. 64 of that Act applied to all passes whenever constructed. Alternatively it was contended that in fact the pass was constructed under the authority of the later Act.
The first point which has to be considered is whether any point of law is raised by the Case Stated in as much as, so it is submitted, the District Justice’s decision in law was based upon a finding of fact which cannot be interfered with. It is said that the District Justice has held that the pass in question was constructed under the authority of the Fisheries Act, 1842, and that this finding cannot be challenged. If such a finding had been made this argument must be accepted. The President of the High Court was, however, of the opinion, with which I agree, that although parts of the Case Stated lend colour to this view, yet, on the Case as a whole, it is clear that what the District Justice wishes to know is whether there was evidence to support his finding of fact.
It is necessary, firstly, to deal with the contention that s. 64 of the Act of 1842 applies to all fish passes made for the purpose of enabling salmon to make their way from the sea to their breeding-grounds. In support of this contention certain remarks of Mr. Justice Johnston in Attorney-Generalv. Cooper and Others (1) are relied on. That case proceeded on the basis that the Cooper fishery was created under the authority of the Cooper Act and although the actual construction of the fish passes in question was not specifically dealt with, there is no suggestion throughout the case that the work was done otherwise than as part of the scheme authorised by the Cooper Act. Mr. Justice Johnston considered that the Cooper Act had “a sanctity which ought to have appealed to the Attorney-General’s advisers.”Inasmuch as by virtue of the references to it in the Fisheries Act, 1842, s. 1, it must be read and administered with the Act of 1842 and in that way has become part of the fishery code of the country. This was an ingenious line of reasoning and was relied on by the learned judge in support of his decision in that case. It is now adopted and put forward by the Attorney General and in my opinion it is sought to give a much wider effect than Mr. Justice Johnston intended. In a way of speaking it is true to say that the recognition of the Cooper Act in the Act of 1842, which was a consolidating statute, made it part of the code. To my mind, however, this does not mean that it thereby lost its character of a special Act designed for a clear-cut and definite purpose, namely, to enable Mr. Cooper to undertake the experiment of creating a productive salmon fishery where hitherto none had existed, and for this purpose to construct an artificial fish pass of a new type. The fact that the Act was preserved by the Act of 1842, save in so far as it was expressly amended, to my mind is a complete answer to the contention that by becoming part of a code its special provisions somehow lost their effect by becoming merged in the general provisions of the later Act. If this was intended and if all passes after 1842 were to be subject to the provisions of s. 64 it is difficult to understand why s. 3 of the Cooper Act, relating to the construction of fish passes, was not repealed and replaced by s. 62 of the Act of 1842. To my mind, far from it being the intention of the Legislature to merge the provisions of the Cooper Act in a code, the intention of the Legislature was to leave the Cooper Act untouched, save in certain respects expressly mentioned, namely, the preservation and protection of the fishery and the detention and punishment of trespassers.
I pass to consider whether there was evidence to support the conclusion of the District Justice that the pass in question was constructed under the authority of the Fisheries Act of 1842. This was a criminal prosecution. Accordingly, any matter of fact necessary to establish the offence charged must be established beyond reasonable doubt. The District Justice does not explicitly say that he had arrived at this degree of certainty before convicting the defendant. This Court must, of course, be careful not to extend its investigations beyond the scope allowable in considering findings of fact. In the view that I take it is unnecessary, however, to decide whether in a case such as this the Court can consider whether the evidence justifies a finding of fact beyond all reasonable doubt, or must refrain from interfering if the conclusion of fact at which the District Justice has arrived has some evidence to support it.
The prosecution undertook the onus of proving that the pass was constructed under the authority of s. 62 of the Act of 1842. One would have thought that having regard to the history of the Ballisodare Fishery it should have been possible to produce evidence which would settle this question. If the construction was under the authority of the Act of 1842 records relating to the work should exist (in the official files of the Department of Fisheries or whatever Department succeeded to the Commissioners for Works), but no records of any kind appear to have been produced. The evidence put before the District Justice consisted of the terms of the two Acts and a paper by Dr. Went, of the Department of Fisheries. I do not see how this paper was made evidence but by agreement it was accepted as giving correctly the history of the fishery. Certain facts are clear. The fishery was unproductive and barren until the Cooper fish passes were constructed. Credit is given by all those who have written of the fishery to Mr. Joshua Edward Cooper for conceiving the idea that this condition might be altered by making the passes with which we are concerned. Mr. Justice Johnston refers to the scheme as “an experiment, involving very considerable expense, and might have been, so far as the knowledge of the engineers of the time was concerned, a complete failure. . . . It is enough to say that it was a complete success . . . very soon the estuary and the rivers were teeming with fish which came up from the sea, utilising the marvellous structure which had been conceived in the brain of Joshua Edward Cooper and constructed by the engineering genius of the late Mr. William Forsythe”: Cooper v. Attorney-General and Others (1). Joshua Edward Cooper died in 1837. In the same year the Act was passed which enabled his plans to be put into operation. The authority to do so was granted to Edward Joshua Cooper, his nephew and his successor in title. I judge from the terms of the Act that the plans for the fish passes which were to be the instruments by which the object aimed at was to be achieved were in existence before the sanction of Parliament was sought. The Act seems to be based upon such plans. By s. 1 authority is given to construct two canals, passages or cuts. The points where the passes were to be placed are described with exactitude. Sect. 3 empowers Cooper to acquire “the existing rights and privileges of fishing for salmon or other sea fish within the bay of Ballisodare.”It is to be gathered from the judgment of Mr. Justice Johnston that documents relative to many of the transactions carried out under the authority of this section were before him. They were not before the District Court. The process took a long time. The construction of the passes must also have taken a long time. In the result, the pass we are concerned with here was not in operation until 1852. Apart from the circumstance to which I shall refer later that in fact not two, but three, fish passes were constructed there is nothing which would suggest to anybody that the work done to create the fishery was not done under the authority of the special Act. In the meantime, however, as already mentioned, the Fisheries Act of 1842 had been passed. By s. 62 it made it lawful for the Commissioners to construct authorise or contract with any person interested in the fisheries to construct such works and make such alterations in the bed of a river as shall effectually secure a free and uninterrupted passage at all times of the year for salmon, etc. Pausing to examine this provision, it differs significantly from the authority given in the Cooper Act which was “to divert and turn the waters of the said rivers by making . . . two canals, passages, or cuts, one communicating with . . . and the other canal . . . in such manner as may be sufficient to effect the aforesaid object of enabling the said salmon to ascend into the said rivers and lakes.” This section does not stipulate for a free and uninterrupted passage for salmon at all times of the year, as does s. 62, quoted above. Sect. 64 is quite in harmony with this part of s. 62. It forbids amongst other things “the placing of any obstacle . . . in or near thereto in order to deter or prevent fish from freely entering or passing up and down at all periods of the year,”and so on. The plans before the Court and the photographs of the fish pass in question show that the flow of water is controlled by sluices. Sluices would seem to me to be of little or no use unless by their means the flow of water can be shut off. According to Dr. Went’s paper they were used for this purpose. He says:”Two sluices 21/2 feet wide are used to control the amount of water entering the pass and by frequent adjustment of these a maximum efficiency is obtained.” One hesitates to place reliance on this feature of the works, and it was not pressed in argument, but it does seem that to erect the sluices would be clearly to offend against s. 64 if it applies. Yet the evidence points unmistakably to their having been part of the original plans and to their having existed since the beginning without objection. It is worthy of note also that the cut or pass possesses in these sluices something corresponding to the locks on a canal and may conceivably have prompted the use of that word in s. 3 of the Act.
One of the matters taken into account by the District Justice and helping him to take the view he did was that three passes were made whereas the Cooper Act only authorised two. I entirely fail to see how this helps unless it be shown that Mr. Cooper deliberately forebore to take advantage of the Act specially passed to enable the work to be done. The circumstances of the building of the third pass are wrapped in mystery. I am willing to assume that it was constructed in pursuance of the Act of 1842 as there is no specific authority to make it under the Cooper Act, but I fail to see how, if this be so, any logical deductions can be made that the other two passes expressly contemplated by the Cooper Act were constructed otherwise than under and by the authority of that Act.
The District Justice also relied on a statement in Dr. Went’s paper (p. 297) that “the fact that the Ballisodare and Collooney fish passes have withstood the ravages of almost 90 years with only minor repairs is greatly to the credit of their designer, one William Forsythe, an engineer of the Board of Works in Ireland.” The District Justice says that this statement in the report “removed any doubt”he had on the question. It is strange that the District Justice should give so much, or, indeed, any weight to this statement. There is nothing to tell when Mr. Forsythe became an engineer with the Commissioners of Public Works. There is no evidence from which it can be deduced that he drew the plans as such engineer, or even if he did so that they were not drawn on the basis that the authority for them was the Cooper Act. Whatever inference may be drawn from the circumstances referred to it certainly does not support the inference which the District Justice drew. It is also to be observed that Dr. Went in his paper does not suggest that the construction was done under the authority of s. 62 of the Fisheries Act, 1842.
It has to be remembered in connection with the legislation thought necessary for the creation and protection of the fishery at Ballisodare that it was a very special case. It was an experiment with the possibility of great success or costly failure. In order to guarantee to Mr. Cooper who was taking the risk the fruits of success it was reasonable to enable him if he so wished to get all the fishing rights in and around the bay into his hands. Once this was secured it obviously became unnecessary to apply the rigid restrictions on interference with the free passage of fish which were called for normally in other rivers. The design of the new pass suggests that in order that it should function successfully these restrictions might be waived. In doing so the Legislature naturally would act on the assumption that the owners of the fishery to be created would do nothing to hurt it. The history of the fishery shows that in this faith the legislators of 1837 have been fully justified.
I do not deal with one point which the President mentions, viz., whether Mr. Cooper had a right at common law to execute the works upon his own land so long as he did not interfere with the rights of others. That may well be, and, no doubt, would be so but for the complication that these were fish passes and certainly after 1842 he would run the risk of offending against the provisions of s. 64 of the Fisheries Act if he placed any obstacle to prevent the free passage of fish.
I am of opinion that the President was right in the opinion he reached that the proper place to look for the authority for the construction of the pass was the obvious place, namely, the Cooper Act.
This appeal should be dismissed.
LAVERY J. :
I agree with the judgment which has just been delivered by the Chief Justice and I do not wish to add anything to it.
KINGSMILL MOORE J. :
I also agree.
Gannon v. Hughes
[1937] IR 286
Johnston J.
This is an action brought by Mr. William Patrick Gannon, who is a chemist carrying on business in Main Street, Portlaoighise (formerly Maryborough), for an injunction of a twofold character: first of all, to restrain the defendant (who is also a chemist carrying on business as such next door to the plaintiff) from erecting a building at the rere of his premises which will cause an actionable nuisance to the plaintiff by obstructing the light coming to a room used by the plaintiff in his business as a compounding room and, secondly, to restrain the defendant from erecting the building in question in such a way as will cause an obstruction to a right of way that the plaintiff undoubtedly has at the back of the defendant’s premises from Main Street to the plaintiff’s yard and garden.
In order that the difficulty in the case should be understood I should like to say a word or two as to the situation of the two sets of premises. The main part of the plaintiff’s property consists of a shop for the sale of drugs and medicine and an office or room for general purposes. Both these rooms abut on the street, the shop being entered by an ordinary shop entrance and the office by a sort of hall door. Over these rooms there are a number of apartments, one of which is occupied by a solicitor who practises in Portlaoighise. At the back of the main line of the building is a series of three apartments. The first of these is a compounding room, separated from the shop by the usual barrier; the second, a packing room; and the third, a store for goods. Each of these rooms has a window looking out on the plaintiff’s yard, and the packing room and store each has a doorway which leads into the yard. It is the window of the compounding room with which these proceedings are concerned. The plaintiff alleges that its efficacy to light up that room is threatened by the proposed erection of the defendant.
The defendant’s premises were formerly occupied by a hardware merchant, and the defendant acquired them by assignment in 1930 for the purpose of carrying on his profession or trade of chemist. He has found, however, that the accommodation that they afford for the combined purpose of a residence for himself and his family and for the carrying on of his business is too limited. Accordingly he conceived the idea of building a sort of “return” to his house, consisting of a long two-storey building, forty-eight feet in length, joined to the main part of the defendant’s premises and running south, with the plaintiff’s yard and garden as its western boundary. The height of this building would be something over eighteen feet from the ground to the eaves, with the additional height of the roof. For the purpose of preserving intact the plaintiff’s right of way from the street to his yard the defendant proposes to leave the way as it is at present and to make an archway under the new building covering the way as it now is, the opening thus left being a little over nine feet in height.
The plaintiff’s compounding room is a small room at the back of the shop and it is the common case of both parties that it is at present inadequately lighted by the window looking out upon the yard. This window is crushed in (if I may use that expression) under a recess which is formed by a jutting out of the second storey of the building over the yard. The light to it is obstructed by a block of buildings belonging to another owner of property which are distant from the window some 64 feet, 6 inches. These buildings have been referred to in the course of the case as “the existing buildings,” and they are so marked on Mr. Sheridan’s map or plan. Evidence has been given on behalf of the plaintiffevidence both of a scientific and of what I may call a general characterthat the erection of the new building will seriously diminish the light in the compounding room; and even without such evidence I would be entitled to come to that conclusion upon the evidence of the measurements that have been taken. It does not call for much science or much information from that very useful personage, the man in the street, to know that a two-storey building, newly erected, will lessen the light entering a window only sixteen feet away. Indeed the witnesses for the defendant do not contest that matter. The case that they endeavour to make is that the room is so badly lighted at present that the diminution of light will make very little difference to the plaintiff and that, in any event, some part of the loss will be restored by the reflected light from the new building. It is significant that the defendant’s witnesses admit that the erection of the new building will interfere also with the light which enters through the window of the packing-room and, to a less extent, with the light which enters through the window of the store; but the plaintiff makes no complaint as to the lessening of the light in either of these rooms, and I think he was well advised in adopting that course. His case is that the diminution of light in the packing-room and the store which will be caused by the erection of the new building, though a reality, is not such a diminution as would entitle him to come to the Court to complain of an actionable nuisance; but that a reasonable amount of light in the compounding room is absolutely necessary for his use of that room and that the overshadowing of that room by the defendant’s proposed building entitles him to come to this Court to complain of that matter.
Now, what is the test that I must apply under the circumstances that I have briefly related? Not the mere diminution of light in the compounding room. If that were to be regarded as the test, it would have far-reaching consequences; its application would have the effect of stopping almost entirely the erection of new buildings in towns and cities, and that would be a result that could not be contemplated. In the historic case of Colls v. Home and Colonial Stores, Ltd. (1)a case that was epochal in regard to this branch of the lawColls proved beyond the shadow of a doubt that the erection of the company’s buildings would diminish the amount of light that his premises had been receiving for a very long time, and yet the House of Lords, reversing the decision of the Court of Appeal in England and restoring the decision of Joyce J., held that that was not enough. The two sets of premises were on opposite sides of a street forty-one feet wide.
The true test is to be found in the judgments delivered by the Law Lordsa very strong Court, consisting of Lord Halsbury L.C., and Lords Davey, Macnaghten, Robertson and Lindleywho formulated the principle upon which all such cases were to be decided, or, perhaps it would be more correct to say, brought the law back to what it had been in the days of Lord Hardwicke and Lord Eldon. The test laid down in Colls’ Case (1) is the question whether the obstruction complained of is a nuisance, and to determine that question all the surrounding circumstances must be taken into account, including of course the degree or quantity of light that the plaintiff has been enjoying in the past and the proximity of the premises complained of.
The learned Law Lords set out their views, each in his own phraseology; but they all arrived at the same conclusion of principle. I think that that principle is best expressed in the passage which Lord Macnaghten quotes from the charge to the jury of Chief Justice Best in the case of Back v. Stacey (1). The passage is as follows:
“In order to give a right of action, and sustain the issue, there must be a substantial privation of light, sufficient to render the occupation of the house uncomfortable, and to prevent the plaintiff from carrying on his accustomed business (that of a grocer) on the premises as beneficially as he had formerly done. His Lordship added that it might be difficult to draw the line, but the jury must distinguish between a partial inconvenience and a real injury to the plaintiff in the enjoyment of the premises.”
Some of the Law Lords who delivered judgments in Coll’s Case (2) admitted freely that the principle enunciated by them left the question to be determined very much at large. It introduced elements of uncertainty and difficulty that would not be very easy to dispose of by the various tribunals before which such questions would come. Lord Lindley, in particular, said (at p. 208):”But similar uncertainty has always existed and exists still in all cases of nuisance; and in this country an obstruction of light has commonly been regarded as a nuisance, although the right to light has been regarded as a peculiar kind of easement.”
His Lordship then added these words (p. 213):”But, notwithstanding these elements of uncertainty, the good sense of Judges and juries may be relied upon for adequately protecting rights to light on the one hand and freedom from unnecessary burdens on the other. There must be consideration for both sides in all these controversies.”
Now, applying the principle enunciated in Colls’ Case (2)and taking into account the whole of the evidence that has been adduced in the case, can I hold that the erection of the defendant’s new building will amount to a nuisance affecting the plaintiff by reason of the diminution of the light that it will cause in the compounding room? In coming to a conclusion as to that question I take into account the fact that that room is at the present time very badly lighted and that it has been used by the plaintiff in the ordinary course of his business for very many years. I am satisfied that the erection of this two-storey building of the height proposed by the defendant, sixteen feet from the plaintiff’s window, will seriously interfere with the carrying on of the plaintiff’s accustomed business and that he will not be able to carry it on as beneficially as he had previously done. I may say that I rather regret having to come to this conclusion. I have a certain amount of sympathy for the defendant who is trying to do the best he can for himself and his family; but the plaintiff alleges that in view of the way he is circumstanced, hedged in, as it were, by the congested condition of the buildings sourrounding him, he is entitled to come to this Court in order to stop the erection of the new building, or, at any rate, stop its erection to the height which is proposed; and I cannot say that he is wrong.
The learned experts who gave me the benefit of their knowledge and experience in this case and who assisted me very considerably, will excuse me if I do not deal at length with their evidence. I may say that the evidence of Mr. Sheridan and Mr. O’Connor, on the one hand, and that of Mr. Munden and Mr. Matthews on the other, do not differ to any great extent in regard to the scientific matters to which they deposed. The difference between them is as to the conclusions that they respectively draw from the establishment of these scientific matters. But that really is a matter for me. I may add for their satisfaction that, in arriving at the conclusion at which I have arrived, I took into consideration the probability that the window would get some reflected light from the new buildingMaugham J. took a similar view in the case of Sheffield Masonic Hall Co., Ltd. v. Sheffield Corporation (1)but it seems to me that that probability is not an element of much importance in the present case.
I have also read the pamphlet of the Illumination Research Committee and have gained a passable knowledge of the theory of the daylight factor and the various standards of good, adequate and inadequate lighting; but I fear that I cannot say much for “the grumble point”as a test which would be of much use in cases like the present.
The only matter that remains is the question of the alleged obstruction of the plaintiff’s undoubted right of way. The statement of claim clearly suggests that the said right of way will be obstructed by the erection of the new building. 291
I do not think that there is any foundation for that claim. The land on which the building is proposed to be erected belongs to the defendant. He is entitled to use it as he pleases, subject to the plaintiff’s right to use the path for ingress to, and egress from, his yard by every form of traffic that the two gateways will accommodate. There is no evidence whatever that the nine-foot archway will in any way obstruct the plaintiff’s use of the way as it was established in past years. The only embarrassing element in regard to this matter is the insertion of the unfortunate words “on foot” in the defence. If the defendant asks me to do so, I will amend the defence by striking out those two words, and I shall then dismiss this part of the plaintiff’s claim (1).
Gannon v Walsh
[1998] 3 IR 245, 1996 WJSC-HC 3491, [1998] 3 IR 245 (Digest), [1996] 6 JIC 2001
Court: High Court (Ireland)
Judge: Castlerbar, Keane J.
The Applicable Law
The right of a person to fish in a river or lake is a recognised right of property in our law. In the confusing terminology of the law, it is usually called a “several fishery”, although it can be enjoyed by an individual as well as by a group of people.
There are important distinctions between several fisheries in non-tidal waters and those which are claimed in tidal waters: in the latter case, the impossibility of creating a several fishery in tidal waters subsequent to the granting of Magna Carta, unless such a fishery existed prior thereto, meant, that the proof of title to a several fishery in such cases might present special difficulties. Those problems, which were compounded in Ireland by the fact that parts of Ireland, such as Donegal, were never conquered by the Normans so that the great charter was not applicable and by the possibility (disputed by some scholars) that the brehon law did not recognise any such right as a several fishery, were resolved in favour of the claimants to several fisheries in the estuary of the River Moy by the decision of Johnston J. in Little & Ors v. Cooper, [1937] IR 1 and need not detain us further. I merely mention the authorities (of which, of course, the most important is the celebrated decision of the Supreme Court of the Irish Free State in Moore v. The Attorney General, [1934] IR 44) to ensure that nothing I have to say in this judgment will be regarded as relevant to anything other than a several fishery in non-tidal waters, which is claimed to exist in the present case.
A several fishery may be no more than a right vested in a person to kill and take away fish from a particular stretch of a river or lake. In such a case, it belongs to the category of legal right known as a profit a prendre i.e. the right to take away either part of another person’s land, e.g. turbary, or animals on the land or in its waters, e.g. rights of shooting and fishing. As such, it belongs to the wider category of legal rights known as incorporeal hereditaments.
Such incorporeal hereditaments may be exercised by a person by virtue of his right to the ownership of land in which case they are normally described as being appurtenant to that land, usually described as the dominant tenement, but they also may exist independently of the ownership of any land, in which case they are said to exist in gross.
It is, however, perfectly possible for the right to fish to co-exist with the ownership of the bed or soil of the river. In such a case, the right is properly described as a corporeal hereditament and, apart from any other legal consequences, this will have the result that the owner of the fishery will be entitled to carry out works, such as the erection of weirs on the portion of the river bed in his ownership, provided he can do so without interfering with any other person’s rights.
There is weighty authority for the proposition that a person entitled to a several fishery in non-tidal waters is presumed to be the owner of the bed of the river over which the right is exercised. This, however, is contrary to the view of no less an authority than Lord Coke who said:
“If a man be seized of a river, and by deed do grant separalem piscariam in the same, and maketh livery of seisin secundum formam chartae the soil doth not pass nor the water, for the grantor may take water there; and if the river become drye, he may take the benefit of the soile for there passed to the grantee but a particular right and the livery being made secundum formam chartae cannot enlarge the grant. For the same reason, if a man grant aquam suam the soil shall not pass, but the piscary within the water passeth therewith.”
[Co. Litt. 46.]
That statement of the law is severely criticised by the learned authors of Moore on the History and Law of Fisheries, (London) [1903] as being based on two erroneous propositions: first, that livery of seisin is appropriate to the grant of an incorporeal hereditament and, secondly, that there can be property in the water of a river.
It may be noted in passing that feoffment with livery of seisin is an obsolete form of conveyancing which involved the physical entry on the land to be conveyed and the “delivery” by the grantor to the grantee by a symbolic act, such as handing over a sod of earth in front of witnesses. According to Wylie’s Irish Land Law, second edition, para 3.024 one of the forms of conveyance which was used instead was “bargain and sale” which, according to the learned author, presented less difficulties in the Irish context. It may be noted that the marriage settlement of 17th August 1832 in the present case, offered as the root of title, was by way of bargain and sale.
The view of the learned authors of the History and Law of Fisheries is borne out by an impressive line of authority, beginning with the Duke of Somerset v. Fogwell (5) B & C 875, the view being there expressed that ordinarily the possession of a several fishery would imply a right to the soil, subject to proof to the contrary. The same view was taken in Holford v. Bailey 13 QB 427 and in Marshall v. Ulleswater Steam Nagivation Company [1863], 3 B & S 744, 749, but in the latter case, Cockburn, C.J., although feeling himself constrained to follow the earlier authorities, expressed strong reservations:
“It is admitted on all hands that a several fishery may exist independently of the ownership of the soil in the bed of the water. Why then should such a fishery be considered as carrying with it, in the absence of negative proof, the property in the soil? On the contrary, it seems to me that there is every reason for holding the opposite way. The use of water for the purpose of fishing is, when the fishery is united with the ownership of the soil, a right incidentalal and accessory to the latter; on a grant of the land, the water and the incident and accessory right of fishing would necessarily pass with it. If then, the intention be to convey the soil, why not convey the land at once leaving the accessory to follow? Why grant the accessory that the principal may pass incidentally? Surely such a proceeding would be at once illogical and unlawyerlike. The greater is justly said to comprehend the less, but this is to make the converse of the position hold good.”
However, in Attorney General v. Emerson, [1891] AC 649, the principle was reaffirmed by the House of Lords. That, admittedly, was a case concerning a fishery claimed in tidal waters, but there is no indication in the speech of Lord Herschell that he was confining the proposition to such fisheries and it would be surprising if he did. Having referred to the previous decisions, he said:
“Finding, then, such high authority for the proposition that the ownership of the several fishery is evidence of the ownership of the soil, I am not disposed to depart from it.”
To the same effect is the decision of the Court of Appeal in Hindson v. Ashby, where Lindley, L.J. said:
“But, further, it must be taken as now settled that, if the right to a several fishery in a public navigable river is proved to exist, the owner of the fishery is presumed to be also the owner of the soil over which his fishery extends, unless there is evidence to the contrary. The reasoning on which this presumption is based is not satisfactory and the difficulties involved in it were very forcibly pointed out by Cockburn C.J. in Marshall v. Ulleswater Steam Nagivation Company: but the presumption is supported by Mr. Butler in his note to Coke upon Littleton [122 a]; it has the great authority of Bayley J. and the other judges who decided the Duke of Somerset v. Fogwell; it was deliberately sanctioned by the Court of Queen’s Bench and by the Exchequer Chamber in Holford v. Bailey; it was recognised as law and was acted upon as such by Cockburn C.J. himself and by his colleagues in Marshall v. Ulleswater Steam Nagivation Company;and lastly it was treated by the House of Lords in Attorney General v. Emerson as no longer open to question.”
Two features of that legal presumption should be noted. In the first place, it is a presumption only and may be displaced by evidence to the contrary. In the second place, as pointed out by Lindley L.J. in Hindson v. Ashby;
“As regards the bed of the river, the presumption of ownership in the Defendants” predecessors as owners of the several fishery displaces the presumption that would otherwise arise in favour of the riparian proprietors being the owners of the bed of the river usque ad medium filum, as to which see Hale De Jure Maris ch. I.”
As to the first point, it is clear from the authorities that the presumption may be rebutted by the terms of the grant itself, which may make it clear that an incorporeal hereditament only was intended to be created.
As to the acquisition of a profit a prendre,it is clear that there are four ways in which this can be effected: by statute, express grant or reservation, implied grant or reservation and presumed grant or prescription. Where it is created by express grant or reservation, the Courts have generally applied certain principles of construction which are usefully summarised in Wylie’s Irish Land Law, second edition at para. 6.058:
“In such questions of construction, two principles are most relevant, namely, that a grant is in general construed against the grantor and that a man may not derogate from his grant. The first principle means that, in cases of doubt e.g. (over the exact scope of the easement or profit), a grant of an easement or profit will be construed against the grantor in favour of the grantee, while the reservation, being treated as a regrant by the grantee, will be construed against him in favour of the grantor. The underlying philosophy is that the person who is in a position to dictate the terms of a transaction, by making the grant, cannot complain if a dispute subsequently occurs and he is not given the benefit of the doubt. Reservations in respect of new easements or profits were treated as a special case because of the common law’s view that they should be regarded as regrants by the grantee.”
There appears to be some uncertainty, in Ireland at least, as to whether appropriate words of limitation are required in the grant or reservation of a profit a prendre. The law is thus stated in Wylie’s Irish Land Law, 2nd edition at para 6.054:
“Caution dictates that appropriate words of limitation be used to make it clear for what estate the easement or profit a prendre is given. The point is by no means settled in Ireland, for there seems to be no authority on it and the controversy which existed in England prior to the 1925 legislation has not yet died down. Such English authority as there was about the pre-1925 position suggests that appropriate words of limitation for an inter vivosconveyance ought to be used, otherwise the grantee may be held to acquire an easement or profit for life only.”
If the Plaintiffs in the present case are entitled to no more than a profit a prendre, it remains the case that any wrongful interference by the Defendants with the exercise by them of that right would entitle them as a general rule to an injunction and/or damages. It is clear that it is not necessary for them to establish that they are the owners of the soil of the river in order to obtain such relief. (See the decision of Costello J. as he then was, in Tennent & Ors v. Clancy, [1988] ILRM 214.)
It is also clear that such an action, although in form an action for nuisance, is akin to an action for trespass and that, accordingly, at least where the Plaintiff is in possession of the several fishery, it is not open to the Defendants to put their title in issue, if by so doing they are only setting up a jus tertii. The law was thus stated by Farwell J. in Nicholls v. Ely Beet Sugar Factory:
“It is well settled that in an action for trespass a Defendant may not set up a jus tertii. He may set up a title in himself or show that he acted on the authority of the real owner, but he cannot set up a mere jus tertii. That is well settled, and was not seriously disputed….”
“The Defendants however, say that… the rule as to setting up a jus tertii is confined to trespass actions and does not apply to nuisance actions….”
Having considered another defence raised by the Defendants in that case, the learned Judge went on:
“But (b) raises a more difficult question. Is this an action of trespass, and if not, does the jus tertii rule apply to an action of nuisance? Now this is not strictly speaking an action of trespass. In the old days it would have been trespass on the case. The Defendants are not discharging anything directly on to the Plaintiff’s property, but on to an intermediate property and the discharge is carried down to the Plaintiff’s property. That is not strictly speaking trespass. It is nuisance.”
“Now does the jus tertii rule apply to such an action? I must confine my remarks most strictly to actions of the kind before me. There are many kinds of nuisance actions, e.g. an action for infringement of ancient lights, and so on, and I am very far from saying that the jus tertii rule applies to every kind of nuisance action. But in this case I am dealing with a nuisance action of a kind peculiar to itself and to other pollution actions. It is not trespass, but it is very analogous to trespass. In my judgment where the Defendants are doing acts per se illegal, and therefore not justifiable under any outside authority, they cannot set up a jus tertii as a defence in an action of this kind.”
While the interference alleged in that case was in the nature of pollution, it seems that the same considerations are applicable where the interference with the exercise of the profit a prendre takes another form: see the observations of Evershed J. (as he then was) in Newcastle under-Lyme Corporation v. Wolstanton, [1947] Ch. 9.2 at pp 109/10.
The next question that arises is as to the right of a person entitled to a fishery to gain access to it in order to exercise his rights. It is clear that, at common law, a grant of fishing necessarily implies a right of access to the banks, save in those cases, of which this is not one, where the full beneficial use of the fishing can be enjoyed by the person entitled by the use of boats. It has not been suggested in the present case that, since the termination of the netting of salmon, this stretch of the river can be fished in any way other than by the use of a rod and line from the bank.
The right of access to the bank must, however, be exercised in a manner which is as little detrimental to the riparian owners as is consistent with the full beneficial use of the right of fishing. In the Scottish decision of Middletweed Limited v. Murray, [1989] SLT, the Lord Ordinary, Lord Davidson, rejected a submission that persons legitimately using a fishing right were entitled to enjoy such means of access as enabled able bodied and disabled alike to have the full beneficial use of the beneficial right and that to treat the right as not permitting vehicular access would prevent the full beneficial use of the right. The court distinguished an earlier Scottish decision of Millar v. Blair [1825] 4 S 214 where the court of session had held that the right of access extended to vehicles, the learned judge pointing out that in that case the proprietor of the fishery exercised his rights “by net and cobble”. He added:
“Fishing by net and cobble was an elaborate affair involving the use of heavy gear which had to be transported to the bank adjoining the pool which was to be fished. A denial of cart road access might therefore mean that the pool in question could not be fished. Further, nowhere in Millar v. Blair do I find any support for the pursuers” contention that in determining whether a particular access is necessary for the full beneficial use for the right of fishing the test to be applied is that of a disabled angler rather than one of average strength and mobility. Counsel for the pursuers was unable to cite any authority in the law of Scotland for the proposition that the extent of a right of access was to be determined to any degree by the limitations of a disabled person.”
The statutory right of access, to which reference has already been made, must now be considered in more detail. This derives from S.13 of the Irish Land Act, 1903, which, so far as material, is in the following terms:-
2 “(1) Where at the time of sale of any land to the Land Commission or to tenants or others the vendor has, subject to the provisions of the Ground Game Act, 1880, sporting rights exclusive of the tenant those rights may by agreement between the vendor and purchaser be either conveyed to the purchaser or be expressly reserved to the vendor and in the absence of such agreement those rights shall be vested in the Land Commission, and the Land Commission may deal with the same, subject to regulations to be made by the Lord Lieutenant.
(2) The expression “sporting rights” includes any right of hunting, shooting, fishing and taking game or fish on any land, and the expression game has the same meaning as in S.5 of the Act of 1881 and also includes deer….”
3 “(4) Where any right mentioned in this section is so reserved, there shall be attached thereto a right to enter upon the land in respect of which the first mentioned right may be exercised, and to authorise any person so to do; but any person entering upon land in pursuance of this subsection shall be liable to make reasonable amends and satisfaction for any damage done or occasioned thereby.”
This provision has been considered in a number of cases which were referred to in the course of the argument. In Caldwell v. Killkelly, [1905] 1 IR 434, Barton J. held that, while it entitled the vendor to a right of access to and user of the river bank, it did not entitle him to carry out works of piling and embanking part of the bank of the river or of placing stones and rocks in the bed of the river as shelter for salmon, since the tenant, and not he, was, in that case, the owner of the bank and bed ad medium filum aquae. He was, however, entitled to cut down “useless and injurious weeds”, the learned judge holding this to be analogous to a right to repair a right of way, but emphasising that each case had to be considered upon its own facts. The same judge held in Palmer & Ors. v. Byrne, [1906] 1 IR, that the section also gave the vendor a right of entry for the purpose of cutting sallies and bushes, so far as might be necessary for the reasonable exercise of his fishing rights, but so as not to interfere with the stability of the bank. He also held in Boyle v. Holcroft, [1905] 1 IR 245 that a tenant could be restrained by injunction from erecting, or keeping erected an obstruction to the reasonable exercise of the exclusive right of fishing reserved to the vendor, under the corresponding earlier legislation, which is not the necessary result of the bona fide and reasonable exercise by the tenant of his right, as tenant of the lands, to the proper cultivation and management thereof.
Uyttewaal v. OPW
Commissioners of Public Works in Ireland
[1987] IR 440
Gannon J.
The claimant Leo Uyttewaal is the registered owner of the lands comprised in Folios 17895, 2760 and 17893 of the Register of Freeholders, County Leitrim through which the river Bonet passes. Appurtenant to the ownership of the lands the claimant has exclusive fishing rights in the Bonet river. The numbers of fish in stock in his fishery is dependent from year to year upon spawning which takes place in the bed of the river upstream from his land where the river flows through the land of another owner. Pursuant to the provisions of the Arterial Drainage Acts, 1945 and 1955, the respondents, the Commissioners of Public Works in Ireland, prepared a drainage scheme for the Bonet river catchment area which was confirmed by the Minister for Finance on the 23rd April, 1982. The works to be undertaken pursuant to the Bonet catchment drainage scheme involved inter alia removal of silt and obstructions from, and some channel excavations of, the river as it passed through the lands of the claimant and the upper reaches, thus affecting the spawning beds of the fish stock of the river. The preparation of the scheme therefore had to take into account that this fishery, which is several and a corporeal hereditament which would remain in the claimant’s possession, would be liable to injury by the execution by the respondents of that part of the works authorised by the scheme to be carried out on the lands of an adjoining owner insofar as it involved interfering with the fish spawning beds on such other land.
On the 3rd April, 1985, the claimant submitted a claim for compensation for interference with his fishery pursuant to s. 14 of the Arterial Drainage Act, 1945. No agreement having been reached thereon, Mr. Sean M. McDermott FRICS, FCI Arb., was nominated as arbitrator by the reference committee pursuant to the Property Values (Arbitrations and Appeals) Act, 1960, to hear and determine the issue as to the right of the claimant to compensation and the amount of such compensation and to make his award thereon. The arbitration hearing before the arbitrator took place on the 11th March, 1986, and on subsequent days. He made an interim award on the 16th June, 1986, para. 11 of which is as follows:”
“I make interim award as follows:”
(1) That the compensation to be paid by the respondents to the claimant for the compulsory substantial interference with his lands, fishery and fishing rights is £27,720 (twenty seven thousand seven hundred and twenty pounds) made up as follows:”
(i) Damage to lands and fisheries
£6,000
(ii) Disturbance
£21,720
Total:
£27,720
This sum does not include compensation for:”
(a) Loss suffered by the claimant caused by works carried out outside his property, but under the drainage scheme, which did not cause direct physical damage to his lands or water but which could cause a reduction in the numbers of fish in his fishery in future years, or
(b) Damage caused by maintenance works which may be carried out under Part 5 of the Arterial Drainage Act, 1945.”
The reason for sub-paras. (a) and (b) is to be found in para. 9 of the interim award which is as follows:”
“The respondents contended that the claimant was not entitled to compensation for loss suffered by him caused by works carried out outside his property, but under the drainage scheme, which did not cause direct physical damage to his lands or water but which could cause a reduction in the number of fish in his fishery in future years.
I hold that the claimant is entitled to compensation for such loss.
The respondents have requested that I seek the decision of the High Court on the question in the form of a special case and I have acceded to that request.
The claimant contended that he is entitled to compensation for damage caused by maintenance works which may be carried out under Part 5 of the Arterial Drainage Act, 1945, and that I have jurisdiction to award such compensation.
I hold that I do not have jurisdiction to award compensation for such damage. The claimant has requested that I seek the decision of the High Court on the question in the form of a special case and I have acceded to that request.”
Subsequently the claimant withdrew his request for a question to the High Court in the form of a special case in relation to damage by maintenance works under Part 5 of the 1945 Act.
Section 35, sub-s. 1 of the Arbitration Act, 1954, enables the arbitrator to state his award in the form of a special case for the decision of the High Court and this he has done. His award incorporates with it a case stated for the opinion of this court. The arbitrator made his final award on the 8th June, 1987, para. 9 of which is as follows:”
“I hereby make my final award in the form of a special case:”
(a) The question for the opinion of the High Court is as follows:” Is the claimant entitled to compensation pursuant to s. 14 of the Arterial Drainage Act, 1945, for loss suffered or expected to be suffered by him caused by works carried out outside his property but under the drainage scheme which did not cause direct physical damage to his lands, fishery or stretches of river over which he claims fishing rights, but which could result in the reduction in the population of fish in the said fishery and stretches of river over which he claims fishing rights?
(b) If the answer of the court to the question is in the affirmative I award:”
(i) That the respondents pay to the claimant compensation in the sum of £2,000 (two thousand pounds).
(ii) That the respondents pay to the claimant the claimant’s costs and expenses of and incidental to the taking up of this award which costs in default of agreement are to be taxed on a solicitor and client basis by a taxing master of the High Court.
(c) If the answer of the court to the question is in the negative I award:”
(i) That the compensation to be paid by the respondents to the claimant is nil.
(ii) That the claimant and the respondents bear their own costs and expenses of and incidental to the taking up of this award.”
The question submitted for the opinion of the High Court is as set out at para. 9 (a) of the final award. His findings based on evidence and submissions are set out in paragraph 4 of the case stated as follows:”
“4. As a result of the said hearing, evidence and argument I find as follows:”
(a) The claimant claims a fee simple interest in possession in certain lands at Dromahaire together with a fishery and fishing rights on approximately seven and a half miles of the river Bonet. The respondents started work on the Bonet catchment drainage scheme on the 5th July, 1982, and in the course of the works they entered on and substantially interfered with the said lands, fishery and stretches of river over which the claimant claims fishing rights.
(b) The drainage scheme also involves interference by the respondents with spawning beds upstream of the claimant’s said fishery. This interference will damage the spawning beds and is likely to lead to a reduction in the numbers of fish in future years.
(c) The claimant has suffered loss and is likely to suffer further loss because of the likely reduction in future years in the numbers of fish in his fishery and in the stretches of river over which he claims fishing rights.”
Section 4, sub-s. 1 of the Arterial Drainage Act, 1945, is as follows:”
“(1) Whenever the Commissioners are of opinion that the execution of arterial drainage works is expedient in respect of any catchment area for the purpose of preventing or substantially reducing the periodical flooding of lands in that area or of improving by drainage lands in the said area, it shall be lawful for the Commissioners to prepare a scheme (in this Act referred to as a drainage scheme) for the execution of such works and for that purpose to make such engineering and valuation surveys of the said area as shall appear to them to be necessary or expedient.”
By sub-s. 2 of s. 4 the matters prescribed to be dealt with in the drainage scheme include among others at sub-para. (a) “the waters and watercourses proposed to be dealt with,” and at sub-para. (e) “the lands proposed to be compulsorily acquired or substantially interfered with, the easements, fisheries, water-rights, navigation-rights, and other rights proposed to be compulsorily acquired, restricted, terminated, or otherwise interfered with, and the roads and bridges (whether public or private) proposed to be diverted, removed, or otherwise interfered with.”
Sections 5, 6 and 7 prescribe the preliminary procedures of notices to affected parties and confirmation of the scheme by the Minister for Finance. Section 9 of the Act sets out the powers conferred on the Commissioners by virtue of the Minister’s confirmation of the scheme. Among the powers conferred are the following:”
“(c) to acquire compulsorily the several lands, easements, fisheries, water-rights, navigation-rights, and other rights proposed in the scheme to be so acquired, and, if the Commissioners think fit so to do, to enter on any such lands or exercise any of such easements, fisheries, water-rights, navigation-rights, and other rights before the conveyance or ascertainment of price of such lands, easements, fisheries, or rights, and
(d) to interfere substantially with any land proposed in the scheme to be so interfered with and, if the Commissioners so think fit, to enter on and so interfere with such land before any ascertainment of compensation in respect thereof, and
(e) to restrict, terminate, or otherwise interfere with any easements, fisheries, water-rights, navigation-rights, or other rights proposed in the scheme to be compulsorily restricted, terminated, or interfered with, and to divert, remove, or otherise interfere with any roads or bridges proposed in the scheme to be diverted, removed, or interfered with, and, if the Commissioners so think fit, to do any of the things aforesaid before any ascertainment of compensation in respect thereof . . .”
Section 10 of the Act relates only to fisheries and is as follows:”
“(1) It shall not be obligatory on the Commissioners, when constructing drainage works in pursuance of a drainage scheme, to comply with the Fisheries Acts, 1842 to 1944.
(2) Notwithstanding the exemption conferred by the foregoing sub-section of this section, the Commissioners shall, when constructing drainage works in pursuance of a drainage scheme, take such precautions and make such provisions as the Minister for Agriculture may consider adequate for the protection of and avoidance of injury to fisheries during or in consequence of the construction of such drainage works, provided that the said Minister shall, in consultation with the Commissioners, satisfy himself that taking such precautions and making such provisions will not cause substantial detriment to such drainage works or substantial hindrance to their construction.”
Section 14 of the Act, which makes provision for the acquisition ” compulsorily if necessary ” of a fishery, provides for payment of compensation in the event of compulsory acquisition, and also makes provision for payment of compensation in the event of the restriction, termination or other interference with a fishery made compulsorily where no right of acquisition is exercised. Although the Commissioners are obliged by s. 14, sub-s. 1 to proceed “as soon as may be after the date of the order of the Minister confirming a drainage scheme” to acquire inter alia the fisheries”proposed in such drainage scheme to be compulsorily acquired” they are relieved of that obligation if it appears to the Commissioners that the acquisition of a fishery is not necessary for the purpose of carrying out the scheme. Likewise by sub-s. 3 of s. 14 the Commissioners are relieved of the obligation to make any interference with a fishery “proposed in the drainage scheme to be compulsorily made” if in the course of carrying out the works of the scheme it appears to the Commissioners not to be necessary. Sub-section 4 of s. 14, as amended by the Property Values (Arbitrations and Appeals) Act, 1960, reads as follows:”
“(4) The amount of compensation payable to any person on account of the compulsory substantial interference with any land or the comulsory restriction, termination, or other interference of or with any easement, fishery, water-right, navigation-right, or other right or the diversion, removal, or other interference of or with any private road or bridge under or in pursuance of a drainage scheme, shall, in default of agreement, be fixed under and in accordance with the Acquisition of Land (Assessment of Compensation) Act, 1919, in like manner as if such compensation were the price of land compulsorily acquired.”
It is notable that the compensation to be payable under these provisions insofar as it relates to land is for “compulsory substantial interference”.Insofar as the compensation payable is related to a fishery it is for”compulsory restriction, termination, or other interference”. The express adoption by sub-s. 4 of s. 14 of the Rules for Assessment of Compensation set out in the provisions of the Acquisition of Land (Assessment of Compensation) Act, 1919, for the purposes of fixing the amount of compensation payable in default of agreement precludes resort to the provisions for ascertaining the amount of compensation contained in the unrepealed Lands Clauses Consolidation Act, 1845. By sub-s. 5 of s. 14, however, ss. 69 to 83 of the Lands Clauses Consolidation Act, 1845, are expressly adopted for the circumstances (not pertinent to this case stated) to which they apply. The requirement that the compensation payable in default of agreement by compulsory interference with the fishery should be fixed “in like manner as if such compensation were the price of land compulsorily acquired” is not incompatible with, but on the contrary, is entirely consistent with the provisions of sub-s. 2 of s. 12 of the Act of 1919. The latter sub-section of s. 12 of the Act of 1919 prescribes “For the purposes of this Act, the expression “land” includes water and any interests in land or water and any easement or right in, to, or over land or water . . .”
Section 2 of the Act of 1919 sets out rules for the assessment of compensation to be followed by arbitrators. Of these rules those particularly significant to this case are rules 2 and 6 which are as follows:”
“(2) The value of land shall, subject as hereinafter provided be taken to be the amount which the land if sold in the open market by a willing seller might be expected to realise: Provided always that the arbitrator shall be entitled to consider all returns and assessments of capital value for taxation made or acquiesced in by the claimant.
(6) The provisions of Rule (2) shall not affect the assessment of compensation for disturbance or any other matter not directly based on the value of land.”
It would seem that the expression “the value of land” in rule 2 is particular to the land the subject matter of the acquisition whereas the same expression in rule 6 appears to relate to land values in general as determined by the market. These rules have to be applied in this case to a fishery and not to land.
The application of these rules to the fixing of the amount of compensation in this case gets little, if any, assistance from consideration of ss. 63 and 68 of the Land Clauses Consolidation Act, 1845, which in my opinion do not apply in this case. However, the authorities cited in the course of argument are helpful in illustrating the mode of interpretation of analogous statutory provisions. In the course of argument guidance was suggested from the speeches in the House of Lords in Metropolitan Bord of Works v. McCarthy (1874) L.R. 7 H.L. 243. In that report the speech of Lord Chelmsford at p. 256 is as follows:”
“Where by the construction of works authorized by the Legislature there is a physical interference with a right, whether public or private, which an owner of a house is entitled by law to make use of, in connection with the house, and which gives it a marketable value apart from any particular use to which the owner may put it, if the house, by reason of the works, is diminished in value, there arises a claim to compensation. I think the rule as thus stated may be accepted with this necessary qualification, that where the right which the owner of the house is entitled to exercise is one which he possesses in common with the public, there must be something peculiar to the right in its connection with the house to distinguish it from that which is enjoyed by the rest of the world.”
At p. 265 of the same report Lord O’Hagan is quoted as saying in the course of his speech:”
“The policy of that Act [Land Clauses Consolidation Act, 1845] I apprehend to have been to prevent private caprice or selfishness from interfering with the prosecution of works designed for the public benefit; but to do this with strict regard to individual rights by securing ample compensation in every case in which individual sacrifice or inconvenience is found to be essential to the general good. It never contemplated that the community should profit at the expense of a few of its members, and, as the condition of redress, it only required proof by the owner of injury to his property.”
The following extract from the speech of Lord Penzance at p. 261 of the same report is apposite:”
“There are many things a man may do on his own land with impunity, though they seriously affect the comfort, convenience, and even pecuniary value which attach to the lands of his neighbour.
In the language of the law these things are “damna absque injuria” and for them no action lies. Why then, it may surely be asked, should any of these things become the subject of legal claim and compensation, because instead of being done, as they lawfully might, by the original owner of the neighbouring land, they are done by third persons who, for the public benefit, have been compulsorily substituted for the original owners? It may reasonably be inferred that the Legislature, in authorizing the works, and thus taking away any rights of action which the owner of land would have had if the works had been constructed by his neighbour, intended to confer on such owner a right to compensation co-extensive with the rights of action of which the statute had deprived him. But on no reasonable ground, as it seems to me, can it be inferred that the Legislature intended to do more, and actually improve the position of the person injured by the passing of the Act.”
It must be noted that in that case and in Edwards v. Minister of Transport [1964] 2 Q.B. 134, also adopted for argument at this hearing, the subject matter of compensation was the land and not the appurtnenant right which enhanced the value of the land. In the instant case the property the subject matter of compensation is the fishery, not merely as a right appurtenant to the land but as a several property subjected to interference. From the provisions of the Act of 1945 already cited it is clear that the legislature gave recognition to the existence and special nature of a private several fishery as a property or interest or right to be taken into account as distinct from the land through or alongside which the river flows. The nature of the work of land drainage in the catchment area of a river is such that interference with a several fishery almost certainly would be unavoidable. The answer to the question of law submitted by the arbitrator is to be found by interpreting the provisions of the Arterial Drainage Act, 1945, consistently with the declared purpose of the Act and the state of the law as it had evolved following the English Land Clauses Consolidation Code since 1845. Much of the argument on the hearing of this case stated was directed to the issues of severance and injurious affection which derive from the provisions of ss. 63 and 68 of the Land Clauses Consolidation Act, 1845. Because the Arterial Drainage Act, 1945, is comprehensive in its provisions and the nature of its purpose significantly specific it must be recognised as a special Act rather than one of the general class of Acts comprehended in the first section of the Act of 1845. The express incorporation of ss. 69 to 83 of the Act of 1845 by s. 14, sub-s. 5 of the Act of 1945 relative to the application of compensation money is an adoption of the alternative limited incorporation provided for in s. 5 of the Act of 1845. The wording of the Act of 1945 is so expressed that a fishery is recognised as a corporeal hereditament distinctive in character from an easement or other interest dependent solely upon the use of land.
In my opinion the compensation provisions of the Act of 1945 designate a right to compensation for interference with a fishery as a matter of calculation which is distinct from the ownership of and interference with the land through which the waters of the fishery flow. A requirement that the manner of making calculation of the compensation for interference with a fishery is the same as the manner of making calculation of the compensation for substantial interference with land does not, in my opinion, require the fishery to be treated as part of the land. No issue of severance of the fishery or of the fishery from the land arises as the fishery itself is the only subject matter of interference for which the calculation of compensation is being questioned. The provisions of the Act of 1945 for making compensation for the restriction, termination or other interference with a fishery give no indication that such interference to attract or support a claim for compensation must be attributable only to direct physical damage to the fishery within the area of or to the lands of the claimant. There are many provisions in the Act of 1945 which indicate that the legislature recognised that fisheries and the owners of fishing rights merited special consideration not dependent solely upon ownership of the land. The nature of the work proposed in the scheme involves as a matter of probability, by reason of interference with the spawning beds, a significant reduction for some years in the stock numbers of fish in all stretches of the river including the stretch of river passing through the claimant’s lands. The consequent reduction in numbers of fish in the river by disturbance of the spawning beds would constitute an interference with the claimant’s exclusive fishery rights appurtenant to his ownership of the land through which the river flows. Such interference with his fishery is distinguishable from whatever interference would be caused by work involved in excavation and removal of silt and obstructions from the channel where it passes through his lands. In my opinion the position of the owner of a fishery is not improved beyond what it would have been if the like harm had been done by his neighbours. But even if it were, and if that were the correct test, it is demonstrably evident that the legislature did intend to compensate the owner of a fishery for an injury of a nature reasonably seen as a probability consequent upon the nature of the works necessary in the public interest.
Having considered the overall purpose and scheme of the Act of 1945 and in particular the wording of ss. 14, 15, 16 and 17, it is my opinion that interference with a fishery necessarily caused by work carried out in the completion of a drainage scheme entitles the owner to compensation. In my opinion a loss “caused extraneously” by interference with a fishery by work, to which the interference is attributable, done on someone else’s land, that is to say in the terms of the case stated “outside his property”, entitles the owner of the fishery to compensation under section 14.
The answer therefore to the question submitted in the case stated is in the affirmative.
Tennett v Clancy
John Howard Tennent, James Norman Tennent and Carroll Industries PLC v James Clancy
1985 No. 8532P
High Court
11 November 1986
[1988] I.L.R.M. 214
(Costello J)
11 November 1986
COSTELLO J
delivered his judgment on 11 November 1986 saying: The first and second named plaintiffs own fishing rights in two lakes, Lough Inagh and Derryclare Lough, and in a short river which joins them, which are situated in a remote part of Connemara on the road from Recess to Letterfrack. Salmon are caught in the lakes and river, but they are renowned as one of the best white trout fisheries in the west of Ireland. The plaintiffs claim that the defendant has interfered with these rights in a number of ways, but most particularly by permitting canoeing to take place on the lakes and river from an outdoor education centre he runs in the area. After these proceedings were instituted the first and second named plaintiffs agreed to sell their rights and their purchaser has been joined as a third plaintiff in the action. The principal issue of fact in the case is the effect on *216 the fishing in the lakes and rivers of the defendant’s activities. The defendant admits that the plaintiffs enjoy fishery rights, but issues arise as to both the nature of their rights and as to whether they have been infringed. In that connection, the defendant submits that the fishery rights in the area have been severed from the soil and that the plaintiff’s right is a right to an incorporeal hereditament in the nature of a profit-a-prendre. The defendant has two holdings, one at the southern end of Lough Inagh and on its eastern bank, and one on the northern end of Derryclare Lough and also on its eastern bank and both holdings extend somewhat into the river which joins the two lakes. As riparian owner he claims to own the bed and soil of the portion of the lakes and river contiguous to his holdings and submits that his activities merely constitute a reasonable user of his rights as riparian owner and are not actionable. The plaintiffs, however, say that they own the bed and soil of the two lakes and the river and so their fishing rights are in the nature of corporeal hereditaments being attached to the soil. The relevance of this issue is two-fold. Firstly, if the plaintiffs are right the defendant’s rights as riparian owner are extremely limited and no question of any right to boat on the disputed waters can arise. Secondly, as fee simple owners they may require all canoeing by the defendant to stop and not merely the trespass which occurs as a result of the alleged interference with their fishing rights during the months during which angling for trout and salmon is permitted by law.
I will deal firstly with the question of fact relating to the defendant’s activities.
The defendant purchased the lands on the southern shore of Lough Inagh in 1979 which at that time had the benefit of an outline planning permission for the erection on them of a private dwelling house. He submitted plans to the Galway Country Council for the erection of a dwelling house but did not reveal his intention to use the premises for what he has called an outdoor education centre. Having built the premises he established the centre opening it in the year 1980. Recently the Council has objected to the present user of the premises, but no action to rectify the position has been taken by the defendant. He has also purchased land at the other end of the river, but he says that he has no intention of developing this in any way.
The outdoor education centre was opened in October, 1980. It is run by the defendant and his wife and one full-time member of staff, part-time staff being taken on from time-to-time. It is used for permitting school children between the ages of 12 and 17 to engage in mountaineering, rock climbing, canoeing and orienteering. It is open during school terms, that is from October to December and from February through June of each year. Pupils arrive in groups of 50. They come, accompanied by a teacher or teachers, on a Thursday and use the lake on Friday and Saturday, leaving for home on Sunday. Another group arrives on Monday and the lakes are used on Tuesday and Wednesday. The pupils are divided into four subgroups of about twelve and each group will have about two hours on the *217 lakes. The river is used only at certain times and by more experienced pupils. The defendant has fourteen canoes and two wind-surfacers (which are only occasionally used). In the months of July, August and September he lets the premises to family and friends. I am satisfied from the evidence that a substantial interference with the fishery of the lakes and river has taken place. This has occurred in three different ways.
(a) The owners of the fisheries let out rods and boats during the season. The overwhelming evidence of the experienced anglers who have regularly fished on the plaintiffs’ lakes is that the canoeing which they encountered significantly and substantially interfered with their angling. Apart from the physical interference by the presence of canoes the effect of their being on the lake is to disturb the white trout for which the lakes are famous. This species of trout is especially shy, and the effect of the canoeing is to make angling a virtually useless occupation as a result of the disturbance which the canoes cause to the fish. The evidence of the plaintiffs’ fishery manager (which I accept) is that canoeing is not limited to one part of Lough Inagh but takes place over a considerable area of the southern part of the lake and in the area which is popular with fishermen. I am also satisfied that canoeing took place in the summer months of 1985 to a much greater extent on the lakes and river to that deposed to by the defendant, and that the interference has occurred from early in the season, that is from after the beginning of April. The manager received a number of complaints from anglers about the interference caused to them by canoes. It is true that no figures were produced to show that any reduction in the number of anglers or their catch had taken place, but this is partly explained by the fact that the defendant’s business did not immediately attain the level of activity it had reached by 1985, and that an undertaking given on an interlocutory motion in this action meant that no canoeing took place in the summer months of this year.
(b) The defendant’s pupils have interfered with a weir which is at the mouth of the river at the southern end of Lough Inagh. This is a man-made barrier of loose stones and boulders (described on the old maps as ‘stepping stones’) which plays an important role in keeping flood water in Lough Inagh and also permits fish to pass up into the lake through defined fish passes. The evidence of the fisheries inspector shows that it has frequently and seriously been interfered with and that the inspectors have had to restore its features on quite a number of occasions. As it is quite close to the defendant’s premises it is reasonable to assume that the defendant’s pupils are responsible for the disturbance. But as the plaintiffs and other fishery interests are going to erect a proper weir no relief is now sought against the defendant in relation to this interference.
(c) In the river between Lough Inagh and Derryclare spawning by salmon and sea trout occurs in the months of October and November. Although there was a conflict of evidence on this point I am prepared to accept that of the fishery inspector and hold that there is a reasonable probability that canoeing in those months in the river would damage the *218 spawning of fish in it. This would in the long term have some effect on the stock of fish in Derryclare Lough.
I now come to consider the effect of these findings on the parties’ rights. For this purpose I will firstly assume that the defendant’s plea as to the ownership of the bed and soil is correct, and approach the case on the basis that the plaintiffs’ right to fishing is an incorporeal profit-a-prendre and that the defendant as riparian owner owns the bed and soil of the lakes and rivers to a median line out from his two holdings.
The nature of the rights enjoyed by the owner of an incorporeal hereditament are well established. They can be illustrated by a recent case decided in the Court of Appeal in England Rawson v Peters (1972) 116 SJ 884. The brief report of that case reads as follows:
The plaintiffs, the trustees of an angling club, owned fishing rights on the river Wharfe. They did not own any part of the bed or bank. They claimed an injunction and damages against the defendant for interference with their rights. Judge Ould found that the defendant and his family ‘were messing about in canoes’ on the river when nobody was fishing, and held that no damage was caused and that the plaintiffs were not entitled to damages or an injunction. The plaintiffs appealed. Lord Denning MR said that the plaintiffs’ fishing rights were an incorporeal hereditament, and if those rights were substantially interfered with an action could be brought in respect of that interference without proving special damage. It was like trespass to land which could be sued for without proving actual damage. It was not necessary for there to have been actual fishing going on for there to have been interference: Fitzgerald v Firbank [1987] 2 Ch 96. Disturbing the fish could be as much a trespass as taking them: perParke B in Holford v Bailey [1849] 13 QB 426, 444. It did not matter that there was no one fishing; if the canoeing interfered with the right to fish afterwards there would be interference. There was evidence that the passing of canoes up and down the river would disturb the fish and interfere with the right of fishing. Although no damage had been caused, nominal damages would be sufficient. The appeal should be allowed and 50p damages awarded. No injunction would be granted, but there would be liberty to apply to the county court.
The report does not make clear whether the defendants in that case were riparian owners, but it is well established that even where the riparian owner owns the soil of a river or lake to a median line out from his land he cannot act so as to interfere substantially with the incorporeal fishing rights in the river or lake. In this case, therefore, the court’s task is not (assuming that the defendant owned the bed and soil as he claims) to inquire as to whether the defendant has exercised in a reasonable manner his rights as riparian owner, but to ascertain whether there has been a substantial interference with the plaintiffs’ right to fish in the waters of the lakes and river.
In the light of my findings of fact it is clear that even if the defendant was correct on his submission on the title issue in the case, the plaintiffs are entitled to an injunction to restrain the substantial interference with their incorporeal hereditament which the evidence established has occurred. They are at least entitled to an injunction to stop canoeing from the beginning of April to October each year (when the fishing season ends) on the *219 lakes, and to stop canoeing on the river from the beginning of April to the end of November (when the fishing season and the spawning season have both ended).
If, however, the plaintiffs own the bed and soil of the lakes and river and enjoy a corporeal right to fishing then their ownership would entitle them to restrain canoeing at all times. (see Wills Trustees v Cairngorm Canoeing and Sailing School Ltd 1976 SC 30, and in particular the opinion of Lord Maxwell at p. 63). As this is the remedy the plaintiffs seek I must turn now to the title issue in the case.
The plaintiffs produced a conveyance of the freehold interest of the bed and soil of Lough Inagh and Derryclare Lough and the river joining them to their predecessors in title dated the 16th April 1937. The court would regard this conveyance as a good root of title had the matter been raised on a Vendor and Purchaser summons and in my view in trespass proceedings where a defendant puts in issue a plaintiff’s title the court can accept such a conveyance as establishing that on the balance of probabilities the plaintiffs enjoy the title that they claim.
The defendant however, has countered the plaintiffs’ case by producing an earlier conveyance of 10 January 1855. It is common case that Lough Inagh and Derryclare Lough had been part of a very large estate owned by the Martin family which had in the middle of the last century been sold to new owners by the Encumbered Estate Court. The deed produced by the defendant was a fee farm grant entered into by the Provost of Trinity College by which he granted a large tract of land to one Redmond Joyce, land which subsequently became part of an Estate known as the Connolly Estate, which was later purchased by the Land Commission and sub-divided by it. Part of the lands conveyed by the fee farm grant included a townland called Cloonacarton. The boundary of this townland runs halfway up Derryclare lake, divides the river joining the two lakes and then runs along portion of the eastern shore of Lough Inagh. There was reserved out of the fee farm grant the fishing rights in the lakes and rivers contained in it. These were later transferred to the Trustees of Law Life Assurance Society who by a deed of 22 June 1872 transferred them to one Richard Berridge. They became part of what is now known as the Berridge estate from which they passed to the plaintiffs’ predecessors in title. The defendants say that the fishing rights which were transferred by the Deed of 1872 were incorporeal rights only and that these are the only rights which the plaintiffs obtained.
But it is clear from the documents of title in this case that the townland of Cloonacarton did not extend into any part of Lough Inagh, and that the fee farm grant did not convey any part of Lough Inagh to what subsequently became known as the Connolly estate. The riparian owners of Lough Inagh, therefore, obtained no title to the bed and soil of the lake by virtue of this grant. It is also clear that whatever may be said of the fishing rights in the eastern part of Derryclare Lough and the river which were inside the boundary of the townland of Cloonacarton, the plaintiffs’ *220 predecessors in title derived no fishing rights in Lough Inagh through the route described by the defendant.
In fact the plaintiffs were able to establish not only how their predecessors in title obtained the fee simple in the soil and bed of Lough Inagh and the fishing rights in that lake, but also how they obtained the corporeal right to fishing in the whole of Derryclare Lough and the river.
By an Indenture of 19 August 1852 the entire of the townland of Derryclare and of two adjoining townlands were conveyed in fee simple to the Trustees of the Law Life Assurance Society (the predecessors in title to the Berridge estate). These townlands embraced the whole of Lough Inagh. The boundary of the townland of Derryclare went to the centre of Derryclare Lough and of the river sharing a common boundary at this point with the townland of Cloonacarton. It is clear therefore that by this part of the Indenture the bed and soil not only of Lough Inagh but also of the western half of Derryclare Lough and the western half of the river were conveyed to the predecessors in title to the Berridge estate. But in addition there was conveyed by the Indenture of the 19th August, 1852 a grant in fee simple of the ‘lakes rivers and fisheries’‘belonging to or appertaining’ to the premises which had earlier been conveyed and I think that these words were effective to grant the entire of the bed and soil of Derryclare Lough and of the river to the Trustees of the Law Life Assurance Society as well as the fisheries in them and in Lough Inagh. This meant that the fisheries which the grantees obtained in both lakes and in the river were corporeal fisheries and that the riparian owners obtained no interest in the bed and soil of the lakes and rivers. All the estate and rights of the Trustees referred to in the 1852 conveyance were transferred to the Berridge estate by the 1872 conveyance, and it is through this route that the plaintiffs obtained the corporeal fishing rights they now enjoy.
That the Berridge estate and its successors enjoyed the freehold in all the bed and soil of Derryclare Lough including that part of it which was included on the eastern side of the boundary line of the townland of Cloonacarton, is confirmed by a recital in an Indenture of 13 July 1934. Sir Ranjitsinhji had obtained the fishery rights with which we are concerned by virtue of an Indenture of 25 March 1926 and his heir-at-law conveyed them to Sir William Lane who in turn conveyed them by the Indenture of the 16th April 1937 to which I have already referred. The conveyance of Sir Ranjitsinhji was rectified by the Deed of 13 July 1934. One of the recitals of this Deed reads:
And whereas it has also been ascertained that portion of Lough Derryclare mentioned in the first schedule to the within written Indenture is situated in the Townland of Cloonacarton and that the name of the Townland was accidentally omitted from the description of the premises assured by the within mentioned Indenture of Settlement of the eleventh day of March 1918 and it is apprehended that by reason of such admission some estate of interest therein may have remained vested in the said Richard Berridge …
*221
And the deed went on to convey to the heir-at-law of Sir Ranjitsinhji ‘all that and those the portion of Lough Derryclare and the soil and bed thereof situate in the townland of Cloonacarton’ in fee simple.
It is clear from this recital and from the conveyance contained in the Deed that there was conveyed by it (and the previous Deed was thereby rectified) the entire of the freehold on the eastern part of Derryclare Lough.
The defendant, therefore, has been unable to displace the evidence of their title which the plaintiffs had adduced and to show that he enjoys any interest in the bed and soil of either Lough Inagh or of Derryclare Lough or of the river which joins them. This means that the plaintiffs’ claim to ownership is satisfactorily established and that they are entitled to an order prohibiting all canoeing on the waters of the lakes and river. I think that it is proper for me to add that had the defendant been a little more co-operative when first approached about his activities by Mrs McAuley this result might have been avoided.