Boyle v Holcroft

• Jurisdiction: Ireland
• Judge: Barton, J.
• Judgment Date: 25 March 1905
• Court: Chancery Division (Ireland)
• Docket Number: (1904. No. 752.)
• Date: 25 March 1905

Boyle

and

Holcroft.

Barton, J.

(1904. No. 752.)

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1905.

Landlord and tenant — Sporting rights — Exclusive right of fishing — Judicial tenant — Interference with right — Injunction.

A judicial tenant will be restrained from erecting, or keeping erected, an obstruction to the reasonable exercise of the exclusive right of fishing reserved to the landlord, under the Land Law (Ireland) Act, 1881, sect. 5, which is not the necessary result of the bona fide and reasonable exercise by such tenant of his right, as tenant of the lands, in the proper cultivation and management thereof.”

So, where a judicial tenant erected a barbed wire paling on his holding, along a salmon and trout river, opposite a salmon pool, in such a position as to prevent all reasonable exercise of the exclusive right of fishing, reserved as aforesaid, by a grantee of such right, the Court granted an injunction, being of opinion, on the evidence, that the barbed wire paling was not erected in the bona fide and reasonable exercise of the tenant's rights, as stated above.

Trial of Action.

By an indenture, dated the 18th of April, 1891, Thomas M. Richardson assigned to the plaintiff in this action the sole and exclusive right of fishing on that part of the River Dee, which passed by or through his lands situate in the townland of Richards-town and county of Louth, together with liberty for the plaintiff and all persons authorised by him at all reasonable times to enter upon the said lands for the purpose of fishing and preserving said fish.

Portion of said lands, comprising about 49 acres, was held by the defendant from said Thomas M. Richardson under a judicial tenancy. At the time of the fixing of the fair rent by the Land Commission the sporting rights were exclusively reserved to the landlord under section 5 of the Land Law (Ireland) Act of 1881.

At a certain spot, where defendant's lands skirted the river, there was a salmon pool. At this place the defendant erected a barbed wire paling, extending along the river for a distance of 130 yards, 3¹/₂ feet in height with four strands of barbed wire, and from 4 feet to 9 inches from the edge of the river, thereby obstructing the plaintiff's right of fishing.

The plaintiff claimed an injunction to restrain the defendant, his servants and agents, from entering and trespassing upon the fishery of the plaintiff and from obstructing him in the enjoyment thereof, and from erecting, or allowing to be erected, any wire paling or other obstruction, and from permitting any such wire paling or other obstruction then erected to remain in such a position as to obstruct the plaintiff in the exercise of his right of fishing.

The defendant in his defence averred that at the place where the paling was erected the banks of the river were very low and the water shallow, and that the said paling was erected in the due course of husbandry for the purpose of preventing the trespass of cattle upon defendant's farm and crops, and for the purpose of protecting defendant's cattle on his lands and preventing them escaping, and that same did not obstruct plaintiff's right of fishing.

The defendant also averred that there had always been, within living memory, a fence or paling at or near the spot where the present paling was erected. This, however, was denied by the plaintiff.

The evidence, so far as it is material, appears fully in the judgment of Barton, J.

Matheson, K.C., Jellett, K.C., and Dickie, for the plaintiff:—

The plaintiff is clearly entitled to bring this action. No doubt the wrong complained of is a breach of the statutory condition contained in section 5 of the Land Law (Ireland) Act, 1881; but the remedy by notice to quit contained in that section is only a cumulative and not an exclusive remedy: Steele v. Tiernan (1); Richardson v. Murphy (2). The landlord's sporting right, reserved to him by section 5 of the Act, is an overriding one, and cannot be interfered with in any way by a...