Attorney General (Mahony) v Cooper

• Jurisdiction: Ireland
• Judgment Date: 01 January 1957
• Date: 01 January 1957
• Court: Supreme Court

S.C.),

Attorney General (Mahony)

and

Cooper

Fish passes constructed under private Act of Parliament - Constructed on privately owned land - Bed of river not involved in construction of fish passes - Statutory grant of free fishery -Amendment of private Act by public Act - Private Act not repealed by public Act - Obstruction placed in lowest fish pass by owner - Object of obstruction - Fish in river when water shallow easily poached - Obstruction placed in fish pass during weekly closed season for salmon -Prosecution in District Court - Conviction -Validity of conviction for obstructing fish pass -Case stated - Whether s. 64 of the Fisheries (Ireland) Act, 1842, applicable to case - Whether construction of fish passes had lawful origin, apart from provisions of Fisheries (Ireland) Act, 1842 - Fisheries (Ireland) Act, 1842 (5 6 Vict., c. 106), ss. 62, 64.

By a private Act of Parliament, known as the "Cooper Act", passed in the year 1837, one, Joshua Edward Cooper, the owner of the several fishery in the Ballisodare River and its tributaries and in Ballisodare Estuary, was empowered to build two fish passes, one at the Lower Falls and one at Collooney. The Cooper Act was amended by the Fisheries (Ireland) Act, 1842, which provided by s. 1 that Joshua Edward Cooper or his successors should not exercise any powers for preserving or protecting the fishery or for prosecuting offenders such as thereafter might be lawfully exercised by the owner of any like fishery in Ireland, and by virtue of the Act of 1842. It was expressly provided, however, that nothing therein contained should be construed to repeal the Cooper Act. Sect. 62 of the Act of 1842 provided inter alia that any person interested in a fishery could apply to the Commissioners to construct or for authority for such person to construct works to secure the free passage up the river past natural obstructions of salmon, trout, eels and other fish at all seasons. Sect. 63 of the Act provided that in all dams, weirs and other erections constructed in a river after the passing of the Act there should be provided a means for the free passage of fish up stream. Sect. 64 of the Act of 1842, as amended by the Fisheries (Statute Law Revision) Act, 1949, s. 21, provides that it is illegal inter alia to place any obstruction "in any such passage so made as aforesaid in or through such natural obstructions . . . ." No fish passes were...