Cooper v Attorney General and Others

• Jurisdiction: Ireland
• Judgment Date: 06 June 1935
• Date: 06 June 1935
• Court: High Court (Irish Free State)

Cooper v. Attorney-General and Others.

COOPER

and

THE ATTORNEY-GENERAL AND OTHERS

Several Fishery - Tidal Waters - Assertion of public right of fishing - Fishery created by Act of Parliament - Act alleged to have been enacted by reason of promoter's misrepresentation - Validity - Whether effective to bar public rights - Conditional grant of several fishery - Whether condition performed - "Cooper Fishery Act" (1 Vict. c. lxxxix.).

Trial of Action.

The plaintiff, Edward Francis Patrick Cooper, claiming to be entitled to a several fishery in the Bay of Ballisodare and the lakes and rivers connected therewith, instituted proceedings claiming a declaration of his title to the fishery and an injunction against the defendants, John Boyd, Matthew McGowan, John Uncles, Joseph Hegarty, Farnon Kelly and Patrick Hegarty, restraining them from trespassing on the fishery. The Attorney-General was joined as a defendant to represent the public and the Irish Free State and because the other defendants purported to justify their alleged acts of trespass as done in exercise of an alleged public right of fishing.

The material portion of the plaintiff's statement of claim, in which the facts were set forth, was as follows:—

1. The plaintiff is entitled absolutely to, and seised in fee simple in possession of, the fishery established by the Act of Parliament in paragraph 7 hereof mentioned (hereinafter called the Fishery of Ballisodare) with the sole and exclusive right within the limits of the said fishery (saving only the rights of certain land owners to fish with rods and lines and flies only) to fish for and take, catch and kill by nets, wires, lines, and all and every lawful means, engines and contrivances salmon and other sea fish only, and to sell or otherwise dispose of such fish for his own use and benefit.

2. By indented deeds of lease and release, dated respectively the 11th and 12th days of May 1806 and made between the Hon. Sir Edward Crofton, Baronet, of the one part and Joshua Edward Cooper of the other part, the said Sir Edward Crofton, Baronet, granted unto the said Joshua Edward Cooper all that and those the town and lands of Knockmuldowny, otherwise Ballysadere, otherwise Ballysedere, otherwise Ballysodare, together with the tolls and customs of the fairs and markets thereof and the salmon fishery and all other the fisheries of the river commonly called the River of Ballysedere or by whatever name or names the said town, lands and other premises, or any of them, or any part thereof, was or were called or known with the appurtenances, all which said town, lands and premises are situate in the County of Sligo, to hold the same unto the said Joshua Edward Cooper, his heirs and assigns for ever.

[Pars. 3, 4 and 5 merely recited the devolution of title from Joshua Edward Cooper to Edward Joshua Cooper.]

6. The said Joshua Edward Copper died on the 8th day of June 1837 intestate and without issue leaving the said Edward Joshua Cooper his heir at law him surviving.

7. By the Act, 1 Vict. c. lxxxix, (passed on the 30th June 1837), intituled "An Act to enable Edward Joshua Cooper Esquire to establish and protect a Salmon Fishery upon the lakes and rivers of Owenmore and Arrow and also within the Bay of Ballisodare in the County of Sligo in Ireland" (hereinafter called "the said Act") it was (inter alia)enacted as follows:—[The statement of claim then set out sects. 1, 3, 6, 7, 12, 13, 14, and 15 of the Act] (1).

And by the same Act provision was made for penalties and the recovery thereof and payment thereof when recovered to the said Edward Joshua Cooper, his heirs and assigns to and for his or their own proper use and benefit, and it was by sect. 27 further provided that the said Act should be taken and deemed to be a Public Act and should be judicially taken notice of as such by all Judges, Justices, and others.

8. By the statute, 5 & 6 Vict. c. 106, (the Fisheries (Ireland) Act 1842), it was provided by sect. 1 thereof that nothing therein contained should be construed to repeal the said Act save that the proprietors of the fishery established thereby should not, after the passing of the said statute, use or exercise any rights, powers, or authorities for the preservation or protection of the free fishery in the said Act mentioned, or for the detection, prosecution, conviction, or punishment of trespassers on such fishery, other than such as after the passing of the said statute might be lawfully enjoyed, used, or exercised by the proprietor of any like fishery under and by virtue of the said statute.

9. The names of the townlands surrounding the said Bay of Ballisodare are set forth in the first column of the Schedule to this paragraph. Such of the said lands as are set forth in Part I of the said Schedule with the fishing rights

appurtenant thereto or arising from the possession thereof were at the date of the passing of the said Act comprised in and subject to the trusts of the said indenture of settlement dated the 13th day of February, 1827. The rights and privileges of fishing for salmon and other sea fish within the said Bay of Ballisodare appurtenant to and arising from the possession of the other lands at that time surrounding the said Bay of Ballisodare were subsequently acquired by the said Edward Joshua Cooper under and by virtue of the several indentures, short particulars of which are set forth respectively after such townlands in the second column in Part 2 of the said Schedule. [Here followed the Schedule.]

10. The said Edward Joshua Cooper duly constructed the canals and cuts as authorised by the said Act and improved the said salmon fishery as provided for by the said Act and he continued in possession thereof until his death.

[Pars. 11-28 merely recited the devolution of title from Edward Joshua Cooper to the plaintiff.]

29. On the 26th day of June 1934 and thereafter daily up to and including the 9th day of July 1934 the defendants, other than the Attorney-General (hereinafter called "the special defendants"), save the defendant John Boyd who entered upon the said fishery and fished therein from the said 26th day of June, 1934, to the 5th day of July, 1934,

both inclusive but not afterwards, wrongfully entered upon the fishery of Ballisodare and fished with boats and nets and caught and took salmon thereout and carried away and converted such salmon to their own use and interfered with the plaintiff in the use and enjoyment of the said fishery. The plaintiff has suffered damage by reason of the said trespass and taking of fish and by reason of the said interference.

30. The special defendants claim that they are entitled as of right to enter upon the fishery of Ballisodare with boats and nets and to fish therein for salmon and other sea fish and take the same thereout for their own use and benefit.

31. The Attorney-General for Saorstát Éireann éireann is sued as representing the public and the State of Saorstát Éireann éireannand by reason of the fact that the special defendants purport to justify the trespass of which the plaintiff complains as done in exercise of an alleged public right.

The plaintiff claims:—

(1) A declaration that the plaintiff is entitled to and possessed of a free fishery in the Bay of Ballisodare in the County of Sligo as defined in the said Act, 1 Vict. c. lxxxix, and that the plaintiff is entitled solely and exclusively to.

fish for and take, catch and kill by nets, wires, lines, and all and every lawful ways, means, engines, and contrivances at all lawful and reasonable times and seasons, salmon and other sea fish only within the said bay subject only to the rights (if any now subsisting) reserved by the said Act to land owners on the banks of the said bay to take, catch and fish for salmon or other sea fish by and with rods and lines and flies only.

(2) An injunction restraining the special defendants and each of them, their and each of their servants and agents, from trespassing upon the said free fishery, fishing therein or taking fish thereout and from obstructing or interfering with the plaintiff, his servants, licensees, or agents or any person or persons authorised by the plaintiff in the exclusive use and enjoyment of the said free fishery and sole and exclusive right of fishing.

(3) Damages against the special defendants for the said wrongful acts. (4) All necessary accounts and enquiries. (5) Such further or other relief as to the Court may seem just. (6) Costs.

The defence of the Attorney-General was as follows:—

1. The Attorney-General denies that the plaintiff is entitled solely or exclusively to fish for, catch, or kill salmon or other sea fish in the tidal waters of the Bay of Ballisodare as alleged in the Statement of Claim herein or at all.

2. The Attorney-General denies that the plaintiff is entitled absolutely to, or seized in fee-simple in possession of, the fishery in the said tidal waters referred to in the Statement of Claim herein.

3. The Attorney-General denies that there was at any time appurtenant to or arising from the possession of the lands or any of them set out in the first column of the Schedule to paragraph 9 of the Statement of Claim (being the lands surrounding the Bay of Ballisodare) any exclusive

right of fishing in the tidal waters of the Bay of Ballisodare as alleged in the Statement of Claim herein or at all.

4. Such rights and privileges of fishing for salmon and other sea fish within the said Bay of Ballisodare referred to in sect. 3 of the said British statute as existed at the date of the passing of the said statute did not extend to nor include an exclusive right of fishing in the tidal waters of the said Bay of Ballisodare.

5. The Attorney-General will submit that the said British statute did not, upon its true construction, operate so as to confer upon Edward Joshua Cooper an exclusive or any right to fish in the tidal waters of the said Bay of Ballisodare nor the right to acquire any...