Acheson v Henry

• Jurisdiction: Ireland
• Judgment Date: 01 May 1873
• Date: 01 May 1873
• Court: Exchequer (Ireland)

Exchequer.

ACHESON

and

HENRY.

Valentine v. PennyENR Noy. 145.

Tyringham's CaseUNK 4 Rep. 37 a.

Dean and Chapter of Ely v. WarrenENR 2 Atk. 189.

Lord Courtown v. Ward 1 Sch. & Lef. 8.

Clayton v. Corby 5 Q. B. 415.

Bailey v. StephensENR 12 C. B. N. S. 91.

Ackroyd v. SmithENR 10 C. B. 164.

Shuttleworth v. Le FlemingENR 19 C. B. N. S. 687.

Wodehouse v. FarebrotherENR 5 E. & B. 217.

Flight v. GreyENR 3 C. B. N. S. 320.

Daniel v. M'CarthyUNK 7 Ir. C. L. R. 23.

Colles v. PrendergastUNK 10 Ir. C. L. R. 336.

James v. JohnsonENR 2 Mod. 143.

Stapleton v. BerginUNK 4 Ir. C. L. R. 421.

Lindsay v. O'NeillUNK 5 Ir. C. L. 4. 464.

Malcolmson v. O'DeaENR 10 H. L. C. 593.

Marshall v. The Ulleswater Steam Navigation CompanyENR 3. B. & S. 132.

Hayes v. Bridges Ir. Term Rep. 390.

Livett v. WilsonENR 3 Bing. 115.

Wakley v. FroggattENR 2 H. & C. 669.

Pleading Fishery Prescriptive rights Statement of title Covnant Equitable defence.

486 THE IRISH REPORTS. [I. R. ACHESON v. HENRY. Pleading-Fishery-Prescriptive rights-Statement of title-Covenant Equitable defence. In an action of trespass to (I) a seyeral fishery, and (2) a free fishery, pleas of justification alleged prescriptive rights in the Defendant (1) to a free fishery, (2) to a common of fishery, (3) to angle and fish with rod and line, in the locus in quo, as appurtenant to certain lands of the Defendant, which the pleas did not allege to be adjacent to the locus in quo; and, in other pleas of justification, grants in fee of a right to enter and fish in the locus in quo were alleged to have been made by a former owner in fee of the fisheries in the summons and plaint mentioned, to a former owner in fee of certain lands "whose estate therein" it was averred "the Defendant had" at the times of the alleged trespasses, without describing the situation of the lands or deducing the Defendant's title from the original grantee : Held, on demurrer 1. That the absence of averments showing proximity between the locus in quo and the lands in respect of which the alleged rights were claimed, was not a valid ground of demurrer; and that a sufficient appropriateness of posiÂÂtion would, if necessary, be presumed. 2. That the transmission of the rights conferred by the alleged grants to the Defendant as owner in fee of the lands was sufficiently stated. The Defendant also pleaded, upon equitable grounds, an agreement under seal between M., who formerly claimed the absolute and exclusive right to fish both in and above the tidal part of a certain river, portion of the fishery in the summons and plaint mentioned ; and B., by whom such claim had been disÂÂputed, and who, as a riparian owner, then seised in fee of certain lands borderÂÂing thereon, and which were vested in and occupied by the Defendant at the time of the alleged trespasses, claimed and exercised the right of fishing in the non-tidal part of the river, and also, as one of the public, claimed and exercised the right to fish in the tidal part thereof, whereby, in order to terminate the dispute, and in consideration that B. would not disturb M. in the fishery of the tidal part of the river, or in the enjoyment of a weir to be erected therein, or in drawing and drying his nets on B.'s adjoining lands, M. agreed 'that he, and all persons claiming under him the fishery in the summons and plaint mentioned, should not fish in the river above the tidal part, and that it should be lawful for B., and the owners and occupiers of the said lands for the time being, to fish in the non-tidal part thereof. The plea averred performance of the agreement by B., and enjoyment under it of the fishery of the non-tidal part of the river by the owners and occupiers of the adjoining lands ; that the Vet. Vil.] COMMON LAW SERIES. fishery in the summons and plaint mentioned was derived and claimed by the Plaintiff under M., and not otherwise, and that the alleged trespasses consisted in the Defendant having fished in the non-tidal part of the river, pursuant to the agreement, as owner and occupier of the adjoining lands, of which B. was formerly seised : Held, bad on demurrer, as not disclosing facts which would entitle the Defendant to an unconditional injunction in a Court of Equity. DEMURRER to defences. The summons and plaint contained three counts in trespass :- 1. Trespass to the Plaintiff's several fishery, called the Dowis or Dowris fishery. 2. To the Plaintiff's several fishery in the river called the Dowis or Dowris river, averring that the said river and fishery comprised certain lakes. 3. To the Plaintiff's free fishery called the Dowis or Dowris fishery. The following pleas were, amongst others, pleaded distribuÂÂtively to all the counts :- 11th PLEA.-" That at the times of the alleged trespasses...