Agnew and Another v Barry
| Jurisdiction | Ireland |
| Judge | Macken, J. |
| Judgment Date | 29 November 2005 |
| Neutral Citation | [2005] IEHC 414 |
| Docket Number | 1999/11606P |
| Court | High Court |
| Date | 29 November 2005 |
[2005] IEHC 414
THE HIGH COURT
BETWEEN
AND
NEILL v DUKE OF DEVONSHIRE 1882 8 AC 135
TENNENT v CLANCY 1987 IR 15 1988 ILRM 214
CARROLL v SHERIDAN 1984 ILRM 451
LITTLE v WINGFIELD 1858 81 CLR 279
PRESCRIPTION ACT 1832 S4
EARL DE LA WARR v MYLES 1881 17 CH D 535
WALLACE LIMITATION PRESCRIPTION & UNSOLICITED PERMISSION CONVEYANCER
BP PROPERTIES v BUCKLER 1985 55 P & CR 337
RAFIQUE v TRUSTEES OF WALTON ESTATE 1992 65 PMCR 356
GANNON v WALSH & ORS 1998 3 IR 245
CORR v BRADSHAW UNREP SUPREME 18.7.1967
SNELL & PRIDEAUX LTD v DUTTON MIRRORS LTD 1995 EGLR 259
HINDSON v ASHBY 1896 2 CH 1
EASEMENTS
Profit à prendre
Fishing rights - Several fishery - Ownership of river bed - Abandonment - Prescription - Whether permission granted for fishing - Whether unsolicited permission - Whether removal of gravel wrongful - Little v Wingfield (1858) 81 CLR 279; Earl de la Warr v Myles (1881) 17 ChD 535; Neill v Duke of Devonshire (1882) 8 App Cas 135; Carroll v Sheridan [1984] ILRM 451; BP Properties v Buckler (1985) 55 P & CR 337; Tennant v Clancy [1987] IR 15 and Gannon v Walsh [1998] 3 IR 245 considered - Prescription Act 1832 (2 & 3 Will 4, c 71), s 4; Conveyancing Act 1881 (44 & 45 Vic, c 41), s 6 - Declaration of ownership of several fishery rights made in favour of plaintiff Injunction granted (1999/11606P - Macken J - 29/11/2005) - [2005] IEHC 414
Agnew v Barry
The plaintiffs sought a declaration that by virtue of a conveyance, they were the owners in fee simple of a several fishery on a specific part of the River Blackwater together with the rights of fishing in and taking fish from the several fishery and part of that river known as Bishop’s Fishery. The defendant denied that the plaintiffs were the owners of that several fishery or the owners of the soil in the riverbed but claimed that if they were the owners they abandoned such rights as they did have by non use and/or in the alternative that the defendant acquired prescriptive rights of fishing, by continuous use of the said fishery, or of the Bishop’s fishery. The defendant also claimed ownership in the several fishery by virtue of a fee farm lease.
Held by Macken J. in granting the reliefs sought: That the plaintiffs acquired a good title to the several fishery and accordingly they were entitled to the benefit of a presumption to the effect that they were the owners of the river bed. The defendant was not at any time the owner, by virtue of a fee farm lease or by a conveyance, of any fishing rights on the River Blackwater. Furthermore, the defendant failed to displace the presumption that the river bed belonged to the plaintiffs, as owners of the several fishery. The defendant also failed to establish that the several fishery or that part of it called the Bishop’s fishery, was ever abandoned by the plaintiffs or their predecessors in title by non use and further failed to prove that she was entitled to rely on the principle of prescription.
Reporter: L.O’S.
This is a claim by the Plaintiffs against the Defendant concerning fishing rights on part of the River Blackwater in County Waterford.
By its Plenary Summons the Plaintiffs seek a declaration that they are the owners of (a) the several fishery on a part of the River Blackwater running through several townlands in County Waterford together with the rights of fishing in and taking fish from that several fishery, and of (b) that part of the River Blackwater within the same stretch known as the "Bishop's Fishery". The precise description of the several fishery and the "Bishop's Fishery" as claimed, is set out in a Schedule to the Summons, and is made by reference to certain title documents,inter alia, a conveyance dated the 31st December 1955 to their predecessor in title. In short the several fishery extends from certain Lismore Castle lands in the East to the western boundary of Glencairn Abbey in the West. The Summons also seeks certain injunctive relief against the defendant, as well as damages for nuisance, conversion of the fish and trespass. The Defendant is the sister and personal representative of the estate of John Barry, deceased.
The Statement of Claim was delivered on the 14th March 2000 and pleaded, in essence, the following:
••That the Plaintiffs own and reside,inter alia, at Fort William Estate in County Waterford, and they and their predecessors are the owners in fee simple of the several fishery referred to above.
••That the (then) Defendant resided at Glencairn, Lismore Co Waterford.
••That in so far as that part of the several fishery called "the Bishop's fishery" abuts the Defendants” land, the Plaintiffs and their servants or agents and licensees, have a right of access along the river bank on that land for the purposes of exercising the full right of fishing and taking fish from the Bishop's fishery.
••That the Defendant has no right to fish or to permit others to fish the Bishop's fishery, or to impede the said right of access.
••That the defendant entered the said Bishop's fishery and fished in it and caught and removed the plaintiff's fish and converted them to their own use, and thereby trespassed on the plaintiffs” said fishery.
••That the defendant also trespassed thereon by carrying out extensive work on the riverbed, damaging, disturbing and potentially destroying the spawning habitat for salmon and by creating manmade steps leading to the river.
••The defendant had interfered with the right of access of the plaintiff to the Bishop's thereby trespassing on the said right which was in addition an actionable nuisance.
••The defendant had wrongly denied the plaintiff's exclusive ownership and title to the fishery and had wrongly licensed fishing rights to others.
Due to the death of Mr. Barry, a claim to slander of title included in the Statement of Claim did not survive, and the court is therefore not concerned with that claim.
Certain particulars were furnished, both in the Statement of Claim and also in reply to a request for particulars sent by the defendant. The Defence was then delivered, in the usually way, on the 20th April 2000. In the Defence, the Defendant denies:
••That the Indenture of conveyance of 31st December 1955 was effective to convey the said fishery to the plaintiffs” predecessors in title;
••That the plaintiffs have ownership of the soil of the riverbed;
••That the plaintiffs have any rights of fishing or rights of access to the said riverbank abutting the defendant's lands.
The then Defendant further pleaded that, as the owner of the fee simple of the lands, he was entitled to preclude all persons, including the Plaintiffs, their servants or agents and licensees from entering upon the same without his consent. Further he pleaded that he was the owner of the said fishery to the extent of one half thereof.
The Plaintiff delivered a formal Reply to the Defence on the 11th September 2000. In essence, that Reply pleaded:
••That the Defendant was not, as alleged, the owner of the fishery in issue to the extent of one half, or at all.
••Further, the Defendant was estopped by his conduct, upon which the Plaintiffs had relied to their detriment, from asserting ownership of any part of the fishery.
••To the extent that the Defendant sought to claim ownership of any part of the said fishery, the Defendant was not entitled to do so by way of defence to the plaintiff's claim.
By an amended defence delivered on the 1st October 2004 the defendant repeated the defence previously delivered. Without prejudice to those defences, the defendant pleaded that even if the plaintiffs or their predecessors in title had been the owners of the several fishery, they had abandoned those rights through non-use over the last forty years. Likewise the Defendant claimed that if the plaintiffs or their predecessors had been the owners of the soil of the riverbed, they also abandoned the rights to the same, and any rights of fishing in waters abutting the defendant's lands, and any rights of access to the riverbank abutting the defendant's land, by non-use over the same period.
By way of counterclaim, the defendant pleaded she had acquired rights of fishing in relation to the waters abutting the defendant's lands by virtue of continued use of the several fishery.
In their Reply of the 7th December 2004 to the amended defence, the plaintiffs repeated their original Reply insofar as it was relevant, and further, as to the plea of estoppel, pleaded that the conduct of the late Mr. John Barry in taking the permission of the plaintiffs” predecessors in title to fish the Bishop's Fishery was inconsistent with any ownership claim by the defendant to it. They further denied the defendant's counterclaim to have acquired any rights of fishing in the fishery through any use.
In the mid-90s a dispute developed between the plaintiffs” predecessors in title and the late Mr. John Barry over fishing in the relevant part of the River Blackwater. It is claimed by the plaintiffs that a verbal arrangement existed between the principal shareholder of Fortwilliam Estates Ltd., an American lady called Mrs. Mitchell, and the late Mr. Barry, to the effect that Mr. Barry, his immediate family and his brother David would be permitted, as a gesture of goodwill, to fish along the south bank of the river where the northern boundary of the defendant's lands abuts the river. Fort William Estates requested Mr. Barry to "acknowledge the company's sole and exclusive rights of fishing" on the same part of...
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