Bristow v Cormican

• Jurisdiction: Ireland
• Judgment Date: 12 May 1876
• Date: 12 May 1876
• Court: Exchequer (Ireland)

Exchequer.

BRISTOW AND ANOTHER

and

CORMICAN AND ANOTHER.

Bloomfield v. JohnstonUNK Ir. R. 8 C. L. 68.

Murphy v. RyanUNKELR Ir. R. 2 C. L. 143. [See L. R. 5 C. P. 665.]

Chad v. TilsedENR 2 Br. & B. 408.

Ryder v. WombwellELR L. R. 4 Ex. 32.

Several fishery in inland non-tidal waters — Plaintiffs' right to several fishery — Question for the jury.

398 THE IRISH REPORTS. [I. R. Cont. Pleas. what they mean. There is no statement in the lease as to what 1876. use the Defendant was to put the premises. He chose to build _ EARL OF upon the land, and says he made certain improvements, and that MEATH v, they would have kept out the sea if the Plaintiff had not meddled CUTHBERT. with them. But there is no averment that the Defendant was entitled to the support of the foreshore. The reverse is stated here, for it is stated that the Plaintiff was entitled to the foreshore. It might have belonged to the Queen, and the Plaintiff might have entered on it tortiously. Moreover, there is an averment in these defences that the sea swept away the wall, the rampart, and the buildings which were erected by the Defendant, and that the foundations and the sand and the soil on which the buildings had been erected, and the plot of ground became submerged. But the plot remained to return to its original state ; and on this ground, without entering into the cases cited by Mr. Philips-in which the land was altogeÂther and inevitably submerged-we have come to the conclusion that the demurrer must be allowed. Demurrer allowed. Attorney for the Plaintiff : O'Brien. Attorney for the Defendant : Brownrigg. Exchequer. BRISTOW AND ANOTHER V. CORMICAN AND ANOTHER. 1874. Several fishery in inland non-tidal waters-Plaintiffs' right to several fishery June 8. Question for the jury. In trespass to a several fishery in a large inland non-tidal lake at a place called F. the issue was, whether the fishery at F. was the several fishery of the Plaintiffs ; the Plaintiffs gave evidence by documents of their title to a several fishery in the whole lake, and parol evidence of acts of ownership in portions of the lake, but not at F. ; and the Judge having, contrary to the requisition of the Defendants' counsel, directed a verdict for the Plaintiffs that it ought to have been submitted to the jury to say-Whether the Plaintiffs had a several fishery at F. ? ACTION to assert a right to a several fishery in Lough Neagh. The plaint contained three counts :-(1) Trespass on the PlainÂtiffs' several fishery in Lough Neagh at a place called Feumore ; VOL. X.] COMMON LAW SERIES. 399 (2) Trespass on lands of Plaintiffs covered with water at Feumore, Exchequer. being part of Lough Neagh; (3) Troyer of the Plaintiffs' fish. 1474. The Defendants pleaded, (1) traversing the acts of trespass and Batt row conversion in the several counts alleged ; (2) the property in the m;csx. fishery, lands, and goods ; (3) that there was no several fishery in Lough Neagh ; (4) a special plea to the first two counts, that the several fishery and land covered with water were and still are, and from time immemorial have been, part and parcel of an inland sea called Lough Neagh, and that at the several times of the committing of the acts complained of, and from time immemorial, the said inland sea has been a public or common navigable inland sea, and that, in the part thereof in the said counts mentioned, every subject of the realm had and of right ought to have the right and privilege of fishing, in exercise of which right the Defendants committed the trespasses in the said counts mentioned. To this the Plaintiffs replied, (1) taking issue ; (2) that the tides of the sea had never flowed in Lough Neagh ; and (3) that the fishery in the first count and place in the second count menÂtioned had been put in defence and was an ancient possession of the Crown, from whom the Plaintiffs claimed. The Defendants demurred to the second replication to the special defence, and issue was joined on the other pleadings. The issues were :-1st. Whether the Defendants did the acts in the first count mentioned, or any of them ? 2nd. Whether the fishery in the first count mentioned was the several fishery of the Plaintiffs ? 3rd. Whether there was a several fishery in Lough Neagh as alleged in the first count ? 4th. Whether the DefendÂants did the acts in the second count mentioned, or any of them ? 5th. Whether the lands in the second count mentioned were the lands of the Plaintiffs ? 6th. Whether the Defendants converted the goods in the third count mentioned ? 7th. Whether the goods in the third count mentioned, or any of them, were the goods of the Plaintiffs ? 8th. Whether the Defendants' special plea to the first and second counts is true in substance and fact ? 9th. Whether the Plaintiffs' third replication to the Defendants' special plea is true in substance and fact ? And they were tried before Lawson, J., at the Antrim Spring Assizes, 1874. THE IRISH REPORTS. [I. R. The Plaintiffs gave in evidence a lease of 1660 from King Charles 2, to Sir John Clotworthy of Lough Neagh and Toome, with fishings and soil for ninety-nine years; and also certified copies of the Crown Rent Receipt Books, showing payment of the rent reserved by that lease in 1660: also a patent, 13 Charles 2 (1662), grant of the reversion in fee of the fishing places and soil of Lough Neagh to Arthur Earl of Donegal ; also a lease of 1st of November, 1811, from the Marquis of Donegal to Sir George Hill, of the salmon, trout, pollen and scale fishings of Lough Neagh for sixty-one years, at a yearly rent, reserving power for Lord DoneÂgal to fish for salmon and trout, which lease expired in 1872 ; also a lease of 31st of March, 1829, by the Marquis of Donegal to John Wallace, of the same premises, for lives renewable for ever; also a fee-farm grant of the 28th of January, 1857, from the Marquis of Donegal to the persons claiming under that lease, through whom the Plaintiffs claimed. The estate in reversion of the Plaintiffs, under the lease of 1829, and the fee-farm grant, became an estate in possession in 1872, upon the expiration of the lease of 1811. Evidence was also given of possession accompanying the title, by proof of the payment of rent reserved by the lease of 1811 ; and of payment to Lord O'Neill, assignee of the interest in the lease of 1811, of rent for leave to fish in a portion of the lough six miles in extent ; of actual fishing there ; and that trespassers had been warned off that portion. The portion of the lake in which the Defendants fished was many miles distant from that point. For the Defendants a vast quantity of evidence was given, to show in substance that, so far back as human memory could go, there was always a public fishery and navigation in Lough Neagh, and that, therefore, there never was a several fishery in it. At the close of the Defendants' case the Plaintiffs' counsel reÂquested the learned Judge to leave the first, sixth, and seventh issues to the jury and take their findings upon them, and to direct a verdict for the Plaintiffs on the second and third issues. The counsel for the Defendants asked the learned Judge to leave the following questions to the jury : 1st. Whether there was any several fishery in Lough Neagh except as to the part thereof let by Lord O'Neill ? 2nd. Whether the Plaintiffs had a several fishery or exclusive ownership on the VoL. X.] COMMON LAW SERIES. 401 part of the lough fished by Defendants ? 3rd. Whether the Defendants' special plea was true in substance and in fact ? 4th. Whether the Plaintiffs' last replication to the Defendants' eighth defence was true in substance and in fact? 5th. And also to direct a verdict for the Defendants on the several issues. 6th. To tell the jury that there was no evidence to go to them in support of the Plaintiffs' last replication to the eighth defence ; and there was no evidence of enjoyment of a several fishery by the exclusive exercise of the right of fishing in the part of the lough in which the Defendants fished, either by the Plaintiffs or by any of their predecessors in title. The learned Judge declined to accede to any of these requiÂsitions ; but left the first, sixth, and seventh issues to the jury, who found for the Plaintiffs on all those issues. The learned Judge reported :-" From what the jury stated, I have no doubt they would have found for the Defendants on the other issues if they had been left to them, for they stated that they thought the men had a right to fish, and that it was not the several fishery of the Plaintiffs. I was of opinion that the Defendants' special plea was not proved, as the lake was an inland non-tidal lake. I directed a verdict for the Plaintiffs, reserving liberty to the Defendants to move to have the verdict entered for them if I should have complied with any of the requisitions of the DefendÂants' counsel. The Court to be at liberty to draw inference of facts." A conditional order having been obtained pursuant to leave reserved, cause was shown, and, on the 8th of June, 1874, the Defendants' demurrer to the second replication was overruled ;. and the conditional order for a new trial made absolute. PALLES, C. B. :- This was an action brought for the purpose of establishing the alleged right of the Plaintiffs to a several fishery in Lough Neagh, and it came before us upon a demurrer filed by the Defendants to one of the Plaintiffs' replications, and also upon an application by the Defendants for a new trial. The causes of action were, trespass to the Plaintiffs' several fishery, and to the land of the Plaintiffs 402 THE IRISH REPORTS. [I. R. Exchi quer. covered with water, and conversion of the Plaintiffs' fish. No 1574. distinct question, however, arises upon the count for conversion. BitisTOW The Defendants pleaded, inter alia, a plea traversing the property C011311CAN. of the Plaintiffs in the several fishery, and in the land covered with water, and also a special plea (the...