Beauman v Kinsella

• Jurisdiction: Ireland
• Judgment Date: 08 June 1858
• Date: 08 June 1858
• Court: Queen's Bench Division (Ireland)

Queen's Bench

BEAUMAN

and

KINSELLA.

Mayor of Kingston v. Horner Cowp. 102.

Read v. BrookmanENR 3 T. R. 151.

Bealey v. ShawENR 6 East, 208, 215.

Pickering v. Lord Stamford 2Ves. jun. 280, 581.

Fenwick v. ReadENR 5 B. & Ald. 232.

Eldridge v. Knott Cowp. 214, 215.

Keymer v. Summers Bull., N. P., 74 b.

Keene v. DeardonENR 8 East, 248, 266.

Gray v. BondENR 2 Br. & B. 667; S. C. 5 Moo. 527.

M' Donnell v. M' Kinty 10 Ir. Law Rep. 514.

Hendy v. StephensonENR 10 East, 55.

Blewett v. TregonningENR 3 Ad. & El. 554.

Bright v. WalkerENR 1 Cr., M. & R. 222.

Livett v. WilsonENR 3 Bing. 115.

The Attorney-General v. Ewelme HospitalENR 17 Beav. 366; S. C., 22 L. J., Ch., 846.

Hammond v. CookeENR 6 Bing. 174.

Gray v. BondENR 5 Moo. 527; S. C., 2 Br. & B. 667.

Holcroft v. HeelENR 1 Bos. & P. 400.

COMMON LAW REPORTS. 291 before us has been discussed, it has been discussed upon the T. T. 1858. ueen' sBeneh. statement of the matters which the defendant proposed to give Q in evidence in mitigation of damages. In the present case, there- COUNTESS LISTOWEL fore, the Counsel for the defendant ought to have been permitted v. to state the matters which he proposed to prove, in order that this MERINOS. Court might now have before it those particular matters, and the ruling which was made at the time by the learned Judge who tried the cause ; it is otherwise impossible for this Court to exercise a discretion as to that ruling. The case must, therefore, go for a new trial, upon this narrow ground, that the learned Judge ought not to have stopped the defendant's Counsel in his statement of the matters which he proposed to prove. Order absolute. .BEAUMAN v. KINSELLA.* June 7, 8. THE plaint complained, ih the first count, that the defendant broke' Trespass, for fishing in a and entered the plaintiff's close covered with water, situate in the several fishery. By letters patent of the 14th Charles the First, several denominations of land abutting on the north bank of the Owen Gorman River were granted to M. (through whom the defendant claimed), his heirs and assigns ; " and also the half of all fisheries, and taking of salmon and all other kind of fish in the River of Owen Gorman, near said lands, from the lands of C. to the lands of M." (which included the spot where the fishing complained of took place) ; " and also all fisheries of salmon, herrings and all other kinds of fish in the seaport or creek there, in or near the said town or lands, or any part thereof." Certain other lands abutting on the south side of the said river were, at different times, conveyed to the plaintiff's ancestor. The plaintiff proved that he had exclusively fished in the Owen Gorman River, with nets, for upwards of forty years, without interruption ; but it also appeared that, prior to that time, the persons claiming under the patent of Charles the First had . exercised a right to fish with nets on the north bank of the river, and that their tenants had since that time uninterruptedly fished there with rods.-Held, that as the docuÂments by which the parties respectively deduced their title established the existence of a tenancy in common in the fishery, the plaintiff could not, by any length of user or enjoyment, obtain an exclusive right of fishery in the river, to the exclusion of his co-tenant in common, nor would a grant of such exclusive fishery be presumed. The mere non-user by one tenant in common, of that which belongs to both him and his co-tenant in common, cannot raise the presumption of a grant. Semble.-Acts by one tenant in common, which entirely destroy or put an end to the enjoyment of the property in common, may amount to an ouster by such tenant in common of his co-tenant in common. * PERRIN, J., absence. 292 COMMON LAW REPORTS. T. T. 1858. parish of Killgorman, in the county of Wexford, and fished Queen's Bench therein; and in the second and third counts, that the defendant BEAUMAN broke and entered the plaintiff's fishery in the Killgorman River, ILINSELLA. described in the same counts respectively as a several fishery and a free fishery ; and in the fourth count, that the defendant broke and entered a certain other several fishery of the plaintiff, in a part of the Killgorman River flowing over the soil of the estate of Sir T. and Lady Esmonde, in right of Lady Esmonde, and adjacent to the lands of Sir T. and Lady Esmonde, and fished therein. The plaint then averred title in the plaintiff, from time imÂmemorial, to an exclusive right of fishing in that part of the same river which flowed over the soil of the estate of Sir T. and Lady Esmonde, in right of Lady Esmonde, and adjacent to the lands of Sir T. and Lady Esmonde, in right of Lady Esmonde, and that the defendant wrongfully fished in the last-mentioned fishery. The defendant, to the first count of the plaint, pleaded a traverse of the plaintiff's title to the close in question, and also averred that Sir T. and Lady Esmonde, in right of Lady Esmonde, and those whose estate they then had, from time immemorial, had a several fishery in the same close ; and that, by their authority, and as their servant, the defendant had entered and fished therein. The defendant also traversed the remaining counts in the plaint,. and, by way of further defence thereto, pleaded, that the locus in quo, where the alleged trespass was committed, was an arm of the sea where the tide ebbed and flowed, and where any subject of the realm had a right of fishing ; and that the defendant, being a liege subject of the realm, fished therein at seasonable times for fishing ; and by way of further defence, averred seisin of the lands adjoining the places in the plaint mentioned, by...