Agnew & Anor -v- Barry, [2005] IEHC 414 (2005)

Docket Number:1999 11606 P
Party Name:Agnew & Anor, Barry
Judge:Macken J.
 
FREE EXCERPT

THE HIGH COURT

1999/11606PBETWEEN

IAN AGNEW AND GEORGINA AGNEWPLAINTIFFSANDKAY BARRY Personal Representative of the

Estate of JOHN BARRY, deceasedDEFENDANTJudgment delivered by Macken, J. on 29th November, 2005

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 Plaintiffs own the several fishery;

· 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' alleged fishery includes the Bishop's fishery;

· 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.

Some outline facts

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 the river and not to permit others to fish there.

In 1995 Fort William Estates objected to Mr. Barry's name and telephone number appearing as the relevant contact number for "the Bishop's Fishery", in a 1995 edition of a magazine entitled the 'Coleraine Times' an angling guide. It also asked Mr. Barry not to cause obstruction or interference to anglers to whom Fortwilliam Estates had issued day-licences to fish.

When Fort William Estate, including its fishing rights, were put up for sale in 1996, Mr. Barry, through his then solicitors, sought assurances from the company's solicitors, that he would continue to enjoy fishing rights from his lands adjoining the river. In response, the company, through its solicitors, restated its ownership of the "sole and exclusive fishing" rights on that part of the river, and repeated that any permission Mr. Barry had to fish there would terminate when the property was sold, although they did indicate they would seek to see if the same arrangements could be reached with any purchaser. Both before the sale of the estate, solicitors acting for Mr. Barry and those acting for Fort William Estates, and after the sale, for Mr. and Mrs. Agnew, endeavoured to resolve the dispute regarding title to the several fishery.

In August 1998, the dispute escalated when it was alleged Mr. John Barry removed large quantities of gravel from the riverbed with a mechanical digger. Mr. Barry claimed that this action was necessary because the gravel accumulated in the river, and he claimed his predecessors had done likewise for 80 years, and denied in any event that the plaintiffs owned the riverbed. The plaintiffs sought a sum of £1,000 to refund the loss to it in respect of anglers who could not fish due to the disturbance arising from the removal of the gravel. The plaintiffs denied that Mr. Barry's removal of gravel was carried out with the consent of their predecessors in title. They also objected to anglers licensed by them being prevented from fishing on the river by Mr. David Barry, also deceased, Mr. John Barry's brother.

Other, related issues or disputes have arisen between the parties, all concerning fishing rights, including as to how many people had fished the river, either from Fort William Estate or with the consent or licence of Mr. Barry, as to how long any such fishing had gone on, as to access to the river bank on the Defendant's lands, as to disputes with fisherman permitted to fish or to be on the river bank by one or other of the parties, and, in respect of rates, what rates were paid, and by whom, and so forth.

From the pleadings, and against this background, and, it will be clear that before considering the allegations of trespass or other complaints made by the Plaintiff against the Defendant, and the reliefs sought, or the Defendant's response and the Defendant's own claims that the Plaintiffs abandoned their rights, or that prescriptive rights were acquired by the Defendant, there are in reality two essential matters at issue between the parties to be resolved, namely, (i) whether the Plaintiff is the owner of the several fishery...

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