Caldwell v Kilkelly

• Jurisdiction: Ireland
• Judge: Barton, J.
• Judgment Date: 03 July 1905
• Court: Chancery Division (Ireland)
• Docket Number: (1904. No. 1051.)
• Date: 03 July 1905

Caldwell

and

Kilkelly.

Barton, J.

(1904. No. 1051.)

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 — Landlord's right of entry — Right incidental thereto — Injunction.

A landlord entitled to the exclusive right of fishing, and to a right of entry for that purpose, under section 5 of the Land Law (Ireland) Act, 1881, in a portion of a river adjoining a judicial tenant's holding, the hank and bed of which, ad medium filum aquæ, form part of the holding, has, as incidental thereto, the right of doing all things necessary for the use of his right of fishing and entry; but he cannot claim anything in the nature of an enlargement or extension of such right.

Where a landlord entitled to the exclusive right of fishing in a river forming part of the holding of a judicial tenant, as above mentioned, claimed a right to enter upon the lands of such tenant for the purpose of—(1) piling and embanking part of the bank of the river, and making a path for fishermen on the embankment; (2) placing stones and rocks in the bed of the river for shelter for salmon; and (3) cutting and keeping down weeds in the bed of the river:—

Held, that the landlord's claim failed as to (1) and (2).

Held, also, as to (3), that the landlord, under the circumstances of the present case, had a right of entry for the purpose of cutting and keeping down useless and injurious weeds.

Trial of Action.

The plaintiff in this action was the landlord, and the defendant, John Kilkelly, was the tenant, of a farm of land known as “New Grange” in the county of Meath, which adjoined the river Boyne.

By an order of a Sub-Commission of the Irish Land Commission, dated 7th April, 1903, the fair rent of the farm was fixed at the sum of £397 12s. 6d., and by the same order the exclusive right of sporting (including the right of fishing) was reserved to the plaintiff. By an order of the Irish Land Commission said order was varied by the rent of said farm being fixed at £424 10s. instead of the aforesaid sum of £397 12s. 6d., but otherwise said order of the Sub-Commission was affirmed. By this order the bank and bed of the river ad medium filum were found to be vested in the defendant.

The plaintiff averred in the statement of claim that at the time of the acts thereinafter complained of the river, where it abutted on or adjoined defendant's holding, was choked with weeds; that the bank of the river on defendant's side was for the most part in a very bad and neglected condition; and, furthermore, that the portion of the holding immediately adjoining the river was in parts marshy, wet, and overgrown with flaggers and weeds; that consequently it was impossible for the plaintiff to properly (or in fact at all in some places) exercise the fishing rights reserved by the said order of the 7th April, 1903.

The plaintiff further averred that shortly after the making of the said order he informed the defendant that he proposed going upon the holding with his workmen for the purpose of doing such acts and executing such repairs in and about the said river and bank thereof as were necessary for the due and proper use and enjoyment of the said fishing right and fishing, at the same time undertaking in writing to pay to the said defendant reasonable compensation for any damage done to the defendant's lands by reason of the carrying out of these works; that subsequently he attended on the holding by his agents, servants, and workmen, for the purpose of doing such acts and executing such repairs as should be necessary for the due and proper use and enjoyment of plaintiff's fishing rights and fishing, and the preservation thereof, but that the defendant prevented the plaintiff from doing so.

The defendant in his defence averred that the value of his holding for farming purposes was considerably increased by the fact that the river Boyne extended for over a mile along one side of his holding, inasmuch as the cattle used the river both for drinking purposes and for standing in during the hot season, going across the river and running up and down it during the “fly” months; they being able to get in and out practically at any part adjoining the defendant's holding.

The defendant denied that the river, where it adjoined his holding, was choked with weeds, or that the bank of the said river adjoining his holding was in a bad or neglected condition, as alleged by plaintiff, no weeds being noticeable therein, save in the summer time. He averred that the bank had been for about sixty years in the same condition as it then was, i.e. practically level with the water, and that he and his predecessors in title for said period had enjoyed, among other rights, the right of having free ingress and egress for their cattle into and from the said river all along said bank. The defendant also alleged that the works proposed by plaintiff would seriously affect the use of defendant's holding as a farm. Prior to action brought, the defendant expressed his willingness to allow the plaintiff to enter his lands for the purpose of cutting the weeds, if the plaintiff gave his written undertaking not to do anything further than cut the weeds, and an admission that he did so by the defendant's permission, which the plaintiff declined to do.

The plaintiff claimed an injunction to restrain the defendant, his agents, servants, and workmen, from (1) preventing or otherwise interfering with the plaintiff in cutting weeds in the river Boyne, where it adjoined defendant's farm, so as to deprive the plaintiff of the free and proper use and enjoyment of the fishing rights over the said river, reserved to him by order of the Sub-Commission of the 7th April, 1903; (2) from preventing or otherwise interfering with the plaintiff in repairing the bed and banks of the said river, where it adjoined the said farm, so as to deprive the plaintiff of the free and proper use and enjoyment of said fishing rights; and (3) from preventing or otherwise interfering with the plaintiff in the execution of any other works in and about the said river, and the banks thereof, which might be necessary for the due and proper use and enjoyment of the said fishing rights and fishing.

The evidence given at the trial, so far as is material, is referred to fully in the judgment of Barton, J.

Henry, K.C., Jellett, K.C., and Chaytor, for the plaintiff:—

Where the use of a thing is granted to a person, everything is granted which is necessary to enable the grantee to enjoy such use. Consequently, where a person has a shooting right, he is entitled to do all that is necessary to enable him to exercise his right. For instance, where a person is entitled to a shooting right over a grouse moor, he is entitled to erect grouse “butts.” [They cited Liford'sCase (1); Pomfret v. Ricroft (2).]

The Solicitor-General, K.C., Ronan, K.C., Healy, K.C., and Arthur Meredith, for the defendant:—

The bank is at the present time in the same state as it has been for 100 years, and only the grass along its banks has been trampled down by cattle. If the banks were raised in the manner proposed by the plaintiff, the cattle might break their legs in trying to get to the river, especially in the “fly” season; and there is always the risk of cattle being injured by artificial structures being swept away by floods. The proposed alteration would thus depreciate the value of the farm as a grazing farm, for which purpose it has been used for the past fifty years, and also depreciate its selling value. Even the right of entry for exercising fishing rights is taken into account upon the fixing of the fair rent. That right only...