Duke of Devonshire and Others, Apellants; Drohan, Respondent

• Jurisdiction: Ireland
• Judgment Date: 01 January 1900
• Date: 01 January 1900
• Court: King's Bench Division (Ireland)

Duke of Devonshire and Others, Apellants;

Drohan, Respondent.

Vol. II.] QUEEN'S BENCH DIVISION. 161 DUKE OE DEVONSHIRE and OTHERS, Appellants; Q. B. Div, DROHAN, Respondent (1). _I89!-____ June 6, 7, 8, Salmon Fishery (Ireland) Act, 1863 (26 & 27 Vict. cap. 114), ss. 9, 12 9' 14 19, Certificate of Special Commissioners declaring a weir to be legal, its effect Free gapJustices, jurisdiction to convict (a) for not making legal free gap, (b) for not maintaining same, notwithstanding order of Special Commissioners of Fisheries certifying the weir and gap to be legalJudgment in rem. D. was prosecuted, in 1898, before Justices (under 26 & 27 Vict. c. 114, s. 12), for (a) not making a free gap in his weir at Lismore in accordance with the four regulations of s. 9 of that Act; and, (b) for not maintaining a free gap therein in accordance with those regulations. D. set up as a defence an order dated 15th February, 1866, of the Special Commissioners, certifying that a free gap had been made therein (in compliance with an undertaking by D.), and deciding the said weir to be legal; and D. further proved that the free gap had been constructed in accordance with plans approved of by the Commissioners, and had not been in any way altered since 1866. The Justices convicted upon the complaint for not making, their order being silent as to the second complaint (non-maintenance); but stated that they adopted the defendant's view, that if there was a conviction for not making (s. 12, sub-sect. 1) there could not be a conviction for not maintaining (s. 12, sub-sect. 2), " but should the Court be of opinion that we were wrong in so doing, then, in our opinion, a free gap has not been maintained in the following particulars " :1, The gap not being situate in the deepest part of the stream; 2, the sides of the gap not being in a line with and parallel to the direction of the stream at the weir; 3, the bottom of the gap not being at the time of its construction, or since, level with the natural bed of the stream. On case stated on the question, 1, whether the Justices were entitled, on the facts found, to convict for not making a free gap ; and, 2, whether upon the facts found, and having regard to the conviction for not making, they were debarred from convicting for not maintaining the free gap : Held (by Palles, C.B., and Andrews, J.; O'Brien, J., dissenting, and Murphy, J., expressing no opinion), that the determination of the Special Commissioners upon the legality or illegality of the weir was a judgment in rem, and conclusive against the world; and that, therefore, the conviction for not making a legal free gap was wrong in law; But held per Curiam, that (the conviction for not making being reversed as erroneous) the Justices should have convicted the defendants on the complaint (1) Before Palles, C.B., and O'Beiex, Andbews, and Muiiphy, JJ. 1900Vol. II. iV 162 THE IRISH REPORTS. [1900. Q. B. Div. for non-maintenance, not upon any finding that the level of the floor of the 1899. gap, or its width, were not in accordance with the regulations of section 9 Devonshire (these having remained unchanged since 1866), hut upon the finding of fact ^MTUtX ' ^ reason of tne action ftne defendant in closing up three hatches on Rttpontle'nt. tne south wall of the weir) the flow of the stream had heen altered, and the sides of the gap, therefore, had not heen maintained in aline with and parallel to the direction of the stream at the weir. Case stated, for the opinion of the Queen's Bench Division pursuant to 20 & 21 Vict. c. 43, on the hearing at Lismore Petty Sessions of a summons at the prosecution of Thomas Drohan against the Duke of Devonshire, and (his lessees) Eichard Foley and Edmond Foley, as owners of the Lismore Salmon Weir. The summons was in the following terms: " That a certain fishing weir, namely, the Lismore "Weir, in the River Blackwater, near Lismore, in the county of Waterford and Petty Sessions District aforesaid, was at the date of the commencement of the Salmon Fishery (Ireland) Act, 1863, without a legal free gap, and so continued up to the period of six calendar months immediately preceding the making of the said complaint, and that you, the defendants, having been for a period of twelve months next preceding the making of the said complaint, and still being the owners of the said weir', did not, during the said period of six months, make a legal free gap in the said weir, but, being such owners as aforesaid, did leave the same without such gap during the said period of six months, and every part thereof: the gap, which has been and is in said weir, being illegal in the following particulars: "1. The free gap is not situate in the deepest part of the stream. "2. The sides of the gap are not in a line with or parallel to the direction of the stream at the weir. "3. The bottom of the gap is not level with the natural bed of the stream above and below the gap. " 4. The width of the gap, in its narrowest part, is less than one-tenth of the width of the stream, and is less than fifty feet. "And, further, that the free gap in a certain fishing weir in the River Blackwater, near Lismore, in the county of Waterford, called the Lismore Weir, of which weir you, the defendants, during the whole of the period of six months immediately preceding the making of the said complaint, have been and still are the owners, was not, during such period of six months, or any part thereof, maintained in accordance with the provisions of the Salmon Fishery (Ireland) Act, 1863, in the following particulars, namely: " 1. The free gap was not situate in the deepest part of the stream. " 2. The sides of the gap were not in a line with and parallel to the direction of the stream at the weir. Vol. II.] QUEEN'S BEACH DIVISION. 163 " 3. The bottom of the gap was not level with the natural bed of the stream Q. B. Div. "4. The width of the gap, in its narrowest part, was less than one-tenth of Devonshire The hearing of the summons occupied four days before the Justices (17, 19, 20 December, 1898, and 28 January, 1899), and a shorthand writer's note of the evidence was incorporated in the case stated. The following statement is taken from the case and the documents in evidence : Prior to 1863, the Duke of Devonshire was owner of a several fishery in portions of the Lower Blackwater, and also of the several fishery in that part of the Upper Blackwater anciently known as ' The Bishop's Fishery," which included the Lismore Weir, adjoining Lismore Castle. The Lismore Weir was then without a free gap. After the passing of the Salmon Fishery Act of 1863, the Fishery Commissioners (in 1865) held an inquiry and obtained an undertaking from the Duke that a free gap would be made therein. Plans were accordingly submitted to and approved of by the Commissioners; and, a free gap having been made in the weir in accordance with those plans, the Commissioners on the 15th February, 1866, issued a certificate or order, reciting the holding of the inquiry of 1865, and that it had been then decided that the weir was illegal only by reason of its not having a free gap as required by law, and that the Duke had since made and opened a free gap in said weir " as shown on the space coloured red on the plan hereto "and deciding and declaring the said weir to be legal. In November, 1867, a complaint was made at Lismore Petty Sessions by B. O'Callaghan Foot against the Duke, alleging (in the summons) that, on the 1st October, 1867, the defendant " did . . . maintain in the said weir a free gap the bottom of which was higher than the natural bed of the stream of the said river above and below the said gap." The Justices found that the gap had been made in conformity with the directions of the Commissioners, and had not been altered in any way, but that the bottom of the gap was on the 1st October, 1867, higher than the natural bed of the stream above and below the gap ; and they convicted the defendant, imposing a fine of £2 10s., and £5 costs, and, at the above and below the gap. 1899. the width of the stream, and was less than fifty feet. Appellant; Dkohan, Respondent. 164 THE IRISH REPORTS. [1900. ^ApTelhlT- Gerald J-) held that notwithstanding the order of the Commis-Dkohan, sioners of the 15th February, 1866, the Justices had jurisdiction Respondent. ^ convjct the defendant: see the report Devonshire v. Foot (1) where the facts will be found more fully stated. The Duke thereupon applied to the Court of Chancery for a writ of prohibition to restrain the Justices from proceeding to enforce the penalties under the conviction. A conditional order was obtained from Lord Chancellor Brewster on the 4th July, 1868, and, in February, 1869, on motion to show cause, Lord Chancellor O'Hagan gave liberty to the Duke to declare in prohibition ; and directed that the motion to show cause should stand over until further order: see the report In re Devonshire (2). A declaration in prohibition having been filed accordingly, the defendant Foot pleaded the decision of the Queen's Bench as final and conclusive ; but, on demurrer to this plea, Lord Chancellor O'Hagan held that, as the finality of the decision of the Queen's Bench depended on the fact of the Justices having jurisdiction, and as this Court was of opinion that they had no such jurisdiction, the demurrer should be allowed: see the report Devonshire v. O'Callaghan Foot (3). This decision was taken on writ of error to the Court of Exchequer Chamber (Monahan, C.J, Pigot, C.B., O'Brien and Keogh, JJ., Fitz Gerald and Deasy, BB., Morris and Lawson, JJ.) who held that the case was not one for a prohibition, and that the order of O'Hagan, C, should be reversed. [A report of the judgments delivered on this occasion will be found, infra, p. 211. No appeal was taken from the decision of the Court of Exchequer Chamber.] On the 27th January, 1873, an application was made to the Queen's Bench on behalf of the Duke of Devonshire for a writ...