Doe, d. THE RIGHT HON. GEORGE HAMILTON MARQUIS of DONEGAL, v RIGHT HON. HENRY SPENCER BARON TEMPLEMORE

• Jurisdiction: Ireland
• Judgment Date: 27 January 1848
• Date: 27 January 1848
• Court: Queen's Bench Division (Ireland)

Queen's Bench.

Doe, d. THE RIGHT HON. GEORGE HAMILTON MARQUIS OF DONEGAL,

and

RIGHT HON. HENRY SPENCER BARON TEMPLEMORE.

The Attorney-General v. ParkerENR 3 Atk. 576.

Gartham 6 T. Rep. 397.

Chad v. TilsedENR 2 Brod. & Bing.406.

Stanley v. WhiteENR 14 East, 332.

Jones v. WilliamsENR 2 Mees. & Wels. 326.

Doe v. KempENR 2 Bing. N. C. 102.

Saunders v. Lord Annesley 2 Sch. & Lef. 101.

Hillary v. Waller 12 Ves. 254.

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

Campbell v. WilsonENR 3 East, 294.

Doe d. Freeland v. Burt 1 T. REp. 701.

Duke of Devonshire v. Hodnett 1 Hud. & Br. 322.

The King v. SmithENR 2 Doug. 441.

The King v. Bishop of RochesterENRUNK 2 Mod. 1; S. C. 10 Rep. 113.

Wrottsley v. Adams Plowd. 191.

Swift v. EyresENR Cro. Car. 548.

Jack v, M'IntyreENR 12 Cl. & Fin. 151.

The King v. CapperENR 5 Price, 217.

The Attorney-General v. The Marquis of Downshire Ibid. 269.

Stuleley v. ButlerENR Hobart, 171.

Heidon and Ibbrave's caseENR 3 Leon. 162.

Dowtie's caseUNK 3 Rep. 9, b.

Marquis of Winchester's caseUNK 3 Rep. 4, b.

William v. Berkley Plowd. 243.

The case of Mines Plowd. 336.

Tyrell v. Lyord 4 M. & Sel. 550.

Doddimgton's caseUNK 2 Rep. 33.

The Duke of Devonshire v. The Corporation of Youghal M. S. of the Hon. Judge Jebb.

Hull v. Horner Cowp. 103.

Bedle v. Beard 12 Co. 5.

Gibson v. Clark 1 Jac. & Wal. 159.

Roe d. Johnson v. IrelandENR 11 East, 280.

Attorney-General v. RichardsENR 2 Anst. 603.

Attorney-General v. ParmeterENR 10 Price, 410.

Daniel v. NorthENR 11 East, 374.

Barker v. RichardsonENR 4 B. & Ald. 579.

Bright v. Walker 1 Cr. Mes. & Ros. 211.

MekenzieENR 6 Cl. & Fin. 628.

The Royal Fishery Sir John DAvis's Rep. 149.

Bulstrode v. HallENR 7 Sid. 148.

176 CASES AT LAW. November 1844, in the name of the Marquis of Donegal, and defence was taken "for so much of the lands and premises in the " declaration in ejectment as were in the possession of the defendant "and his undertenants, and therein called all that," &c. The question in dispute was, were the premises mentioned in the ejectment part of the ground and soil of the river Lagan ? The river flows south of the town of Belfast into the bay of CarrickÂÂfergus ; on its eastern side is the townland of Ballymacarrett, in the county of Down ; and on its western side is Belfast, in the county of Antrim. To the south of Belfast the tide ebbs and flows about 21 miles, and at ebb tide there is a portion of mud banks which, until lately, were exposed at low water. The HarÂÂbour Commissioners of Belfast, wishing to extend the quayage, reclaimed these mud banks, and under a Local Act an inquiry was held to assess compensation to the owner thereof. The Marquis of Donegal and Lord Templemore respectively asserted a claim, whereupon the Harbour Commissioners paid the sum assessed by the jury into the Court of Chancery, and the present action was brought under an order of that Court to try the title. In support of his claim, the plaintiff gave in evidence a paÂÂtent made to his ancestor Sir Arthur Chichester, of the 9th of May 1604 (2 Jac. 1), wherein among other grants was one of " The "said water of Lagan and the piscary of and in the river or "stream called the Lagan, near the said castle of Belfast, in our " said county of Antrim." And in another part of the same patent the grant was of "A free piscary or fishing in and through the whole river or stream called the Lagan." An inquisition of the 6th of April 1621 was then given in evidence, by which it was found that " The fishing and piscaries "of every kind of the entire river of the Lagan, together with all " weirs and customs of all things whatsoever upon the same river " imported, transported or exported," &c., were held in trust for Sir Arthur Chichester. And another inquisition of the 10th of April 1620 (19 Jae. 1), found " That there is a royal salmon "fishing within the river of Lagan, where the sea doth ebb and "flow for the space of half-a-mile up above Belfast, within the CASES AT LAW. 177 " said county of Antrim, and that the said river is navigable H. T. 1848. s Bench. L0 withbarkes and boates, and that the said fishing is in the pos- Queen'MARQUIS OF "session of Arthur Chichester," &c. DONEGAL A patent of 20th November 1620 (19 Jac. 1) was then given in v. evidence, and on this patent the plaintiff mainly relied. After recit- - LORD TEM P LENORE. ing as a consideration for the grant the faithful services rendered to the Crown by Sir Arthur Chichester, it granted to him the castle and manor of Belfast, and among other tracts of country the tuoghs, precincts or territories of the Falls and Malone, and of the cynaÂÂment in the county of Antrim aforesaid, in and within the mears and bounds following-viz., towards and near all the south part of the said territories, is lying and being "the bay of Knockfergus and " the river of Lagan," &c., "which said river of Lagan, unto the "bay of Knockfergus aforesaid, is the south mear of the said terriÂÂ" tones and parcels of land aforesaid, and also the fishings and "fishing places of what kind soever of all the river of Lagan, and " the ground and soil of all the said river, together with all weirs " and customs for all things whatsoever which shall be transported "or brought in or out upon the said river." In the same patent was granted so much soil as the patentee might reclaim from the sea at any time thereafter, and it empowered him to constitute one or more ferry or ferries, passage or passages to go upon and over the water or river of Lagan and the bay or arm of the sea near Belfast, in the county of Antrim aforesaid, "unto the lands or banks of the Upper Clandeboye, in the county of Down." The patent contained the usual non obstante clause as to misdescription or misrecital of places or counties. A confirmatory patent of the 22nd of September 1640 (16 Car. 1) was next given in evidence, and it described the bay of Carrickfergus and the river of Lagan as lying on " the southern side of the said territory ;" and it confirmed to Sir A. Chichester "All fishings and the fishing places of whatsoever kind of the said river of Lagan, and the ground and soil thereof," &c. Another patent of the 22nd of September 1667 (19 Car. 2) was also read, further confirming the grant under the patent of 1620. A family settlement of the 19th of May 1792 was given in evidence, from which it appeared that Arthur then Earl of Donegal 23 L 178 CASES AT LAW. and his eldest son George Augustus, among other properties settled " All that the river of Lagan and the ground and soil thereof," describing the whole as being in the county of Antrim. Under that settlement, the late Marquis George Augustus, on the death of his father in 1799, became tenant for life, and the present Marquis (the plaintiff) tenant in tail; but by a further settlement, executed between them on the 28th of October 1822, the present Marquis was made strict tenant for life. The late Marquis died in October 1844, and then the title of the plaintiff accrued. The settlement of 1792 contained a power enabling the tenant for life to make building leases ; and a lease dated the 24th of April 1793, alleged to have been made in pursuance of that power to a person named James Holmes, "of all that piece or parcel of strand or void ground, " lying and being on the east side of the river Lagan, opposite to " the quay of the town of Belfast, being part of the ground and "soil of the said river, and extending from the strand road leading " from the east end of the bridge of Belfast towards Holywood, in " the county of Down, to the pier of the first arch of the said bridge, "westward," &c., was also given in evidence, and proof of payment of rent under it to Arthur Earl of Donegal, from the date of that lease until his death, and that it was on this ground that Batt's and Gregg's quays were built. Prior to the settlement of 1792 Earl Arthur had purchased the townland of Ballymacarrett, in the county of Down, from Lord Avonmore (and the conveyance of that proÂÂperty to the Earl was given in evidence), and being thus entitled, after the above settlement he devised by will the townland of BallyÂÂmacarrett to his second son Lord Spencer Chichester, the grandfather of the defendant, in fee, subject to an annuity of 600 a-year, which he had charged on it as a jointure for his widow : and with this will and the reading of a patent in 1605 (the foundation of defendant's title), the plaintiff's documentary evidence closed. Several witnesses were examined, sea-faring people acquainted with the port of Belfast and the river Lagan, to prove that the premises in question lay between high and low water mark before they were reclaimed from the sea, and that they were part of the river Lagan: and then the plaintiff closed his case. CASES AT LAW. 179 The defendant gave in evidence a patent of the 3rd of November H. T. 1848. een' sBench. 1605 to James Hamilton, afterwards Lord Clandeboye (given in Qu evidence also by the plaintiff), by which were granted to Hamilton MARQUIS OF DONEGAL " All those regions, countries or territories of the Upper Clan- V. - " deboye and Great Ardes, in Clandeboye, in the said county of LORD TEMFLEMORE. " Down, in the province of Ulster, &c., and all other castles, " manors, lands, tenements and hereditaments in the countrie of "Clandeboye and Great Ardes, of which Neale M'Brien Fertagh " O'Neale, or his father Brianus, otherwise Fertagh O'Neale, in the "time of their lives was or were possessed of or received the rents, " dues and impositions, called in English cuttings,' in the said " province of Ulster," &c. ; and also " all other manors, castles, towns "and villages or hamlets, lands, tenements and hereditaments whatÂÂ" soever, lying and being in and within the limits, mears and "bounds of the said territories of the Upper Clandeboye and Great " Ardes, to wit, towards and adjoining to the north and western " parts of the territory aforesaid the river of Lagan, which hath...