Attorney General v McIlwaine

• Jurisdiction: Ireland
• Judgment Date: 01 January 1939
• Date: 01 January 1939
• Court: Supreme Court

(H.C., S.C.),

Attorney-General

and

McIlwaine

Claim to prescriptive title over portion of foreshore - Claim founded on acts of user - Nature of user necessary to support such claim - Sufficiency of evidence - Constitution of the Irish Free State (Saorstat ireann) Act, 1922, Sch. I, Art. 11 - Operation of Art. 11 on inchoate private interest in foreshore - Practice - Amendment of counterclaim at hearing of appeal - Claim to prescriptive title sought to be amended to claim for profit á prendre - Whether amendment allowable - Crown Claims Limitation (Ir.) Act, 1908 (48 Geo. 3, c. 47) - Nullum Tempus (Ir.) Act, 1876 (39 40 Vict. c. 37)

The Attorney-General brought an action in the Circuit Court against M., claiming a declaration that portion of the foreshore, beside a public roadway that adjoined M.'s lands, was vested in the State. M.counterclaimed for a declaration that he had established a prescriptive title to this portion of foreshore, from which he and his predecessors in title had from time to time, for more than sixty years past, removed seaweed, sand and stones. The Circuit Court Judge, holding that M. had established title, first, as against the Crown, and, secondly, as against the State, by prescriptive enjoyment, dismissed the action and allowed the counterclaim. The Attorney-General appealed. Held by the High Court that the decision of the Circuit Court Judge should be reversed, and that the declaration sought by the Attorney-General should be made, and M.'s counterclaim dismissed. Per Johnston J.:—The evidence adduced by M.was insufficient to support his claim that he had acquired a title to the piece of foreshore in question by prescription. The fact that the high-water side of the foreshore was bounded by the wall of a public road which divided it from the lands occupied by M. was opposed to such a claim; moreover, the evidence did not show the nature of M.'s interest in the lands which he occupied, but presumably from the facts proved it was only a leasehold or chattel interest and if so, and if he had acquired title to this piece of the foreshore, he had acquired it for the benefit of his landlord's estate. Further, the evidence did not show that the owner in fee had consented to the bringing of the action nor had he...