Attorney-General v McIlwaine [High Court.; Supreme Court.]

• Jurisdiction: Ireland
• Judgment Date: 30 January 1939
• Date: 30 January 1939
• Court: Supreme Court

High Court.

Supreme Court.

Attorney-General v. McIlwaine.

THE ATTORNEY-GENERAL

and

MICHAEL McILWAINE (1)

Foreshore - Prescription - 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 (Saorstát Eireann) Act, 1922, Sch. I, Art. 11 - Operation of Art. 11on 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 a 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).

Appeal from the Circuit Court.

The plaintiff, the Attorney-General, brought an action in the Circuit Court (Circuit No. 3, County of Donegal), against Michael McIlwaine, the defendant, claiming a declaration that portion of the foreshore at Urbalshinney, County Donegal, was vested in the State.

The plaintiff's indorsement of claim was as follows:—

"(1) The defendant wrongfully and unlawfully has claimed and still claims that he is entitled to a portion of the foreshore situated at Urbalshinney in the County of Donegal, and has threatened and still threatens to resist any interference by the Minister for Industry and Commerce of Saorstát Éireann éireann, his servants, or agents with the said portion of the foreshore.

(2) The said portion of the foreshore is vested in the State.

(3) The fair annual value of the said portion of the foreshore does not exceed £60.

The plaintiff claims:—(1), a declaration that the said portion of the foreshore is vested in the State; (2), an injunction restraining the defendant, his servants and agents, from trespassing on or otherwise interfering with the user by the Minister for Industry and Commerce, his servants, or agents of the said portion of foreshore; (3), further and other relief, and (4), costs."

In his defence the defendant admitted that he had claimed the aforesaid portion of the foreshore but denied that his claim was wrongful or unlawful; he denied that the said property was vested in the State, and his defence then continued as follows:—

"(3) The defendant is seised of and entitled to the said portion of foreshore under and by virtue of a lost Crown grant.

(4) The Minister for Industry and Commerce or his predecessors have not been in actual seizin of the said portion of foreshore and have not been answered by force and virtue of any right or title to the same or the rents, profits or issues thereof within the space of sixty years before the commencement of these proceedings.

(5) The defendant and his predecessors under whom he claims have held and enjoyed the said portion of foreshore and have enjoyed and taken the rents, profits and issues thereof from time immemorial, or at least for a period of more than sixty years prior to the commencement of these proceedings.

(6) The defendant relies on the provisions of the statutes, 48 Geo. 3, c. 47, and 39 & 40 Vict. c. 37.Counterclaim:— The defendant repeats the averments contained in pars. 3, 4, 5 and 6 hereof and claims a declaration that the said portion of foreshore at Urbalshinney, County Donegal, is vested in the defendant."

At the hearing before Judge Moonan in the Circuit Court at Letterkenny, the plaintiff put in evidence certain maps, showing the area in question to lie between the mean high and low-water marks; the defendant admitted that the onus of proof then fell upon him.

From the evidence it appeared that the defendant's farm adjoined a public road; on the other side of the road lay a tract of mud, rocks and sand, separated from the road by a sloping stone wall; the mean high-water mark lay along the foot of this wall. At two places there were gaps in this wall and sloping tracks led down to the sea. Witnesses called for the defendant deposed to the following facts:—

Prior to 1875, and from time to time subsequently, the defendant's predecessor in title to the farm, one, Patterson, took stones from this area and sold them for ballast for sailing vessels, and cut seaweed from the rocks for manuring his land. The defendant bought the farm in 1896, since then he had used this portion of the foreshore in a similar manner; no one else was permitted to take seaweed or stones from this area. The two tracks or slipways from the road to the shore were stated to have been made by the public authority responsible for making (or re-inforcing) the road, and at the same time, in or about the year 1870. No evidence was given as to the defendant's tenure of his farm; in cross-examination one witness was asked the following question:— "The particular piece of foreshore we are now dealing with is in front of McIlwaine's holding; that is, on the Barton Estate?" and the witness answered,"Yes, and that is the only part of the Barton Estate that abuts on Mulroy Bay for miles around." Such further facts as are material appear sufficiently in the judgment of Johnston J.

At the conclusion of the evidence Judge Moonan dismissed the plaintiff's claim and made the declaration claimed by the defendant in his counterclaim.

From this decision the plaintiff appealed to the High Court.

The defendant appealed to the Supreme Court (2) pursuant to leave given.

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 been made a party thereto, and M. had also failed to prove such open, notorious and exclusive acts of user as were necessary for the establishment of a prescriptive title over the foreshore.

Per Gavan Duffy J.:—The evidence adduced by M. failed to show that he or his predecessors had acquired a prescriptive title on the 6th December, 1922, when the Constitution of the Irish Free State came into operation. M. having at that date no "valid private interest" therein, the portion of foreshore in question then vested in the State, by virtue of Art. 11 of the Constitution, and became inalienable save in the manner provided by Art. 11.

Held further, by the High Court, on an application by M. for liberty to amend his counterclaim by the addition of a claim, in the alternative, for a declaration that he was entitled to a profit a prendre over the foreshore, that such an amendment, being of an essentially different character from the original counterclaim, should not be allowed save upon special...