Attorney-General v M'Carthy

• Jurisdiction: Ireland
• Judgment Date: 23 January 1911
• Date: 23 January 1911
• Court: King's Bench Division (Ireland)

Attorney-General

and

M'Carthy (1).

K. B. Div.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1911.

Foreshore — Alluvion — Accretions caused by the recession of the line of ordinary high water — When owner of the lands adjoining is entitled to such accretions — Test — “Gradual and imperceptible accretions caused by the action of natural causes”

The decision of the House of Lords in Gifford v. Yarborough (2) conclusively determines that where land is added to the seashore by the gradual and imperceptible action of natural causes, the owner of the lands adjoining the accretions acquires in them a good title against the Crown, notwithstanding the existence of marks or bounds or other evidence by which the former, or a former, line of ordinary high water can be ascertained.

The real question in every such case of accretion, is whether during the process of accretion the progress of the accretion can be ascertained.

Motion on behalf of the informant to set aside the verdict and judgment for the defendant at the trial of the action, and to enter judgment for the informant, or for a new trial.

The suit was instituted by an information presented by His Majesty's Attorney-General for Ireland, on behalf of the Crown, to try the title to certain accretions of land formed at a place called the Inch Strand, on the shores of Dingle Bay, in the county of Kerry.

The accretions were, as alleged by the informant, formed by the recession of the line of ordinary high water mark at that place, and the defendant, who owned the lands adjoining the foreshore, had exercised proprietary rights over the shore of the bay at the strand, down to the existing line of ordinary high water. It was alleged by the informant that the former line of ordinary high water could be ascertained, as being a line of cliff further inland than the existing line of ordinary high water, and that, therefore, the defendant, in the exercise of the aforesaid rights, had claimed title to what had been bed of the sea, and, therefore, vested in His Majesty the King by his Royal Prerogative and in the right of his Crown. The defendant claimed that, in so far as there had been accretions of land, the same, being formed by the gradual and imperceptible action of natural causes, became added to the lands adjoining the foreshore admittedly in his possession. The information also alleged that the recession of the sea had been assisted by the defendant placing eight wooden posts on the foreshore, which the defendant claimed had been lawfully placed thereon in the exercise of his proper rights as owner of the lands down to the existing line of ordinary high water (1). As the case is of great importance, it is considered expedient to set out below the full text of the material portions of the information, the defendant's answer, and of the reply, as the full facts and matters in issue in the suit will be most easily ascertained from these documents.

The information was as follows:—

Informing sheweth unto their Lordships, John Atkinson, His Majesty's Attorney-General for Ireland, on behalf of His Majesty as follows:—

(1) The object of this information is to have the rights of His Majesty ascertained in respect of the foreshore and accretions hereinafter mentioned, and to have it declared that His Majesty, in right of his Crown, is seised in his demesne as of fee-simple of the said foreshore and accretions, and that the defendant is not entitled to any estate or interest therein, and to obtain an injunction against the defendant in respect thereof, and the defendant decreed to remove four wooden posts by him or his servants in that behalf placed thereon.

(2) By the Royal Prerogative, and in right of the Crown, the ground and soil of the coasts and shores of the sea around this Kingdom, including the coast of the county of Kerry, and particularly the Inch Strand forming portion of the Dingle Bay foreshore in the said County, and adjoining and in front of the townlands of Inch and Ardroe, near Annascaul, Parish of Ballinvoher, and Barony of Corkaguiny, and delineated on the map or plan annexed to this information by way of schedule, and thereon coloured red, and the ports, arms, and creeks thereof, and the bed and soil thereof, as well as the bed of the sea adjacent to such coasts, below low water mark, and also the shore line between high water mark and low water mark have been from time immemorial vested in His Majesty and his predecessors, Kings and Queens of England and Ireland, and the same are now vested in His Majesty, his heirs and successors, in right of his said Crown, except in so far as His Majesty or his predecessors, Kings and Queens of England and Ireland, have been pleased to grant part or parts thereof to any person or persons.

(3) His Majesty the King or his predecessors, Kings and Queens of England, have not granted any part or parts of the foreshore between high and low water marks or any accretions adjoining the said townlands of Inch and Ardroe, and which foreshore is shown on the map annexed by way of schedule to this information, and is thereon coloured red, but His Majesty was and is still seised in his demesne as of fee-simple and inheritance in right of his Crown of the same, and His Majesty and his predecessors have always, continuously up to the commencement of these proceedings, exercised acts of ownership of all kinds over the said foreshore, and have made grants in fee of, and a licence (the duplicates whereof have been duly deposited pursuant to the Statute in that behalf) over, portions of the foreshore adjoining, and have also received payments of nominal acknowledgments in respect of several works on the said foreshore.

(4) The defendant, the said Justin M'Carthy, is in possession of the lands adjoining the foreshore in front of the said townlands of Inch and Ardroe, and which said foreshore is delineated on the said map and thereon coloured red.

(5) The defendant, in or about the year 1901, placed eight wooden posts or stakes on the portion of the foreshore adjoining the said townland of Ardroe, and which said foreshore is delineated on the said map. There remain now existing on the said foreshore four of the said posts or stakes, four others having, prior to this suit, been washed away by the action of the sea. The position of the said posts or stakes with respect to the said foreshore is delineated on the said map by the numbers 1 to 8, the numbers 1, 2, 7, and 8 indicating the position of the posts or stakes now existing.

(6) Prior to the year 1843, the bounds of the ordinary high water mark of the foreshore adjoining the land in the said townland of Ardroe on which the said posts or stakes were placed, was so far as the informant has ascertained, the cliff forming part of the said lands, but by the erection of the said posts or stakes, and also by the action of the wind and of the sea in causing silting and accretion of land, the sea has receded for a certain distance from the said cliffs, so that the sea at ordinary high tides does not advance further landwards than the said posts or stakes, leaving the said original foreshore and what was originally bed of the sea uncovered. The bounds of the said former line of ordinary high water mark are delineated on the said map by the line A B and the present line of ordinary high water mark by the line C D.

(7) Such recession of the sea from the said cliffs has taken place from time to time and is quite perceptible in its progress, and such recession is due to the erection of the said posts or stakes and the action of the sea and the wind.

(8) Even if the aforesaid recession of the sea has been imperceptible in its progress (which the informant denies), the bounds of the said former line of ordinary high water mark are known, and the limits of the land left uncovered by such recession are distinctly ascertained and capable of being laid down.

(9) The defendant, Justin M'Carthy, claims to be entitled to all the foreshore adjoining the said townlands of Inch and Ardroe, which is delineated on the map annexed by way of schedule to this information and thereon coloured red, and particularly to the said accretions of lands caused by the said recession of the sea from the said cliffs, portion of the said townlands of Ardroe, but the informant avers and charges that such claim is not well-founded, and that the said defendant is not entitled to any part of the said foreshore or to the said accretions.

(10) The defendant, as the informant avers and charges, caused the said posts or stakes to be erected in order to claim the portion of the foreshore on which they are placed as his property; and immediately before the commencement of this suit, as the informant has ascertained, excluded the public from access to the said foreshore, the subject-matter of this information, and particularly from the portion formerly, but not now, covered by the sea, being the hereinbefore mentioned accretions, for any purpose whatever and still persists in so excluding them, and prevented the public from using the foreshore for any purpose whatever and still persists in so preventing them, and claims to be entitled to do so, and has commenced proceedings by civil bill in the County Court of Kerry, against members of the public for alleged trespass on the said foreshore and particularly on the said accretions, and the defendant still maintains the said wooden posts or stakes on the said accretions, and has refused and still refuses to remove the same, and the informant avers and charges that the said posts or stakes are an injury to the public, and also injurious to His Majesty's title to the premises, by right of his Crown; and by reason of such claim, acts, and conduct of the defendant, the title of His Majesty to the said foreshore is impeached and brought into question, and it is...