Gannon v Walsh

• Jurisdiction: Ireland
• Judge: Castlerbar,Keane J.
• Judgment Date: 01 January 1998
• Neutral Citation: 1996 WJSC-HC 3491
• Court: High Court
• Docket Number: [No. E26 of
• Date: 01 January 1998

GANNON & ORS v. WALSH & ORS

BETWEEN:

PATRICK GANNON, PETER GANNON, CATHERINE GANNON & NIAMH GANNON (T/A BEAL EASA FISHERY)

Plaintiffs

AND

JOHN WALSH, JAMES DAVIS, STEPHEN THORNTON, JACKIE McLOUGHLIN, JOHN LOFTUS, JOHN CLARKE, PADDY JOE BROGAN, SEAMUS GINTY, EDDIE DOOCEY, TOM HEALY, WILLIE HOLMES, TOMMY STORNTON, JOHN MOLONEY, FRANK BROGAN, MICHAEL WALSH, PADDY ROCHE AND JACK MORAN

Defendants

1996 WJSC-HC 3491

THE HIGH COURT

WESTERN CIRCUIT

COUNTY OF MAYO

Synopsis:

ACTION

Cause

Nuisance - Fishery - Owner - Rights - Infringement - Defence - Denial of plaintiff's title - Defendant not permitted to assert ~jus tertii~ - (Appeal from Circuit Court - Keane J. - 20/6/96) - [1998] 3 IR 245

|Gannon v. Walsh|

FISHERIES

Several fishery

Owner - Rights - Exercise - Obstruction - Owner's title disputed - Damages for nuisance claimed by plaintiff owner - Defendant G7G7 prevented from asserting ~jus tertii~ - Lands vested in Land Commission under Land Acts - Interference with licensed fishermen by adjoining landowners - Holdings of registered landowners vested in them subject to fishing rights reserved to plaintiff's predecessor in title - Access to river bank inherent in ownership of non-tidal several fishery - Presumed ownership of river bed - Rights of access not exercisable by use of motor vehicles - Injunction restrained interference with exercise of plaintiff's rights - Damages for nuisance awarded - Land Act, 1903 (3 Edw. 7, c. 37), s. 13 - (Appeal from Circuit Court - Keane J. - 20/6/96) - [1998] 3 IR 245

|Gannon v. Walsh|

NUISANCE

Fishery

Owner - Rights - Infringement - Defence - Denial of plaintiff's title - Defendant not permitted to assert ~jus tertii~ - (Appeal from Circuit Court - Keane J. - 20/6/96)- [1998] 3 IR 245

|Gannon v. Walsh|

Citations:

LOCAL REGISTRATION OF TITLE (IRL) ACT 1891

IRISH LAND ACT 1903 S13

HALSBURYS LAWS OF ENGLAND V24 165–166

CONVEYANCING ACT 1881 S51

EMMET ON TITLE 14ED V1 411

WYLIE IRISH LAND LAW 2ED PARA 6.054, 6.058, 6.059 & 3.024

NICHOLLS V ELY BEET SUGAR FACTORY 1931 2 CH 34

MOORE & MOORE HISTORY & LAW OF FISHERIES (1903) 139

AG V EMERSON 1891 AC 643

HINDSON V ASHBY 1896 2 CH 1

WYLIE IRISH LAND LAW 2ED 340

LAND LAW (IRL) ACT 1881 S5

SALMON FISHERY ACT 1851

FISHERIES (CONSOLIDATION) ACT 1959

LITTLE & ORS V COOPER 1937 IR 1

MOORE V AG 1934 IR 44

DUKE OF SOMERSET V FOGWELL 5 B & C 875

HOLFORD V BAILEY 13 QB 427

MARSHALL V ULLESWATER STEAM NAVIGATION CO 1863 3 B & S 744

TENNENT & ORS V CLANCY 1988 ILRM 214

NEWCASTLE UNDER-LYME CORPORATION V WOLSTANTON 1947 CH 92

MIDDLETWEED LTD V MURRAY 1989 SLT 11

MILLAR V BLAIR 1825 4 S 214

CALDWELL V KILLKELLY 1905 1 IR 434

PALMER & ORS V BYRNE 1906 1 IR 373

BOYLE V HOLCROFT 1905 1 IR 245

MAUD V MURPHY 1934 IR 394

IRISH LAND ACT 1904

CONVEYANCING ACT 1881 S6

1 JUDGMENT delivered the 20 th day of June, 1996 at Castlerbar by Keane J.

2 The right to fish in the rivers and lakes in the west of Ireland has given rise in the past to prolonged disputes. It has now resulted in an acrimonious controversy as to how those rights are to be exercised in a stretch of the River Moy between Foxford and Ballina in County Mayo.

3 The circumstances which have led to the present litigation should be briefly summarised before I turn to a more detailed consideration of the facts and the law. For practical purposes, they begin with the grant of a Lease by Sir Michael Langham in 1989 to the mother of the first-named Plaintiff, Mrs. Mary Gannon, of a fishery comprising that part of the River Moy in the townland of Shragh and Barony of Tyrawley delineated on a plan annexed to a subsequent lease in 1993. The fishery, as so delineated, was on the west bank of a stretch of the river which flows past an area of land known as "Jack's Park" near the town of Foxford. The land between the river and the main road from Foxford to Ballina, consisting of Jack's Park and some adjoining lands, is divided into a number of relatively small agricultural holdings, some of which are owned by the Defendants.

4 Patrick Gannon, Senior and his wife, Mary Gannon who own the Post Office in Foxford, have for a number of years been running a bed and breakfast business and took the lease of the fishery with a view to offering their customers, and others who might be interested, facilities for angling. It was possible to gain access to the river bank a long a road which ran through Jack's Park from the Foxford — Ballina Road (hereafter referred to as "the Land Commission Road"). Cars could also be driven down this road to a point near the river bank and the Plaintiffs, who owned one of the fields in Jack's Park, took steps to level and surface it so as to provide something in the nature of a car park for the anglers. Subsequently, they bought a holding adjoining Jack's Park on the Foxford side called "Cunny's Field" with a view to providing the anglers with another means of access.

5 As the numbers of anglers gaining access to the river bank by these means grew, the Defendants" objected on the ground that they were frequently crossing their fields and damaging crops and that, in addition, they were leaving litter behind them. The anglers were approached on a number of occasions by groups of the Defendants and asked to leave the river bank and ultimately a gate across the road through Jack's Park was locked so as to deny them access. Fences were also erected at points on the river bank and trenches dug which had the effect, the Plaintiffs said, of preventing them moving a long that stretch of the bank in respect of which they claimed fishing rights.

6 The Plaintiffs thereupon issued proceedings in the Circuit Court claiming an injunction restraining the Defendants from obstructing or interfering with the Plaintiffs in their enjoyment of the fishery, a mandatory injunction directing the Defendants to remove the lock from the gate on the road through Jack's Park, to remove the fences and fill in the trenches on the river bank and £30,000 damages for trespass. A motion for an interlocutory injunction was then brought and such an injunction granted restraining the Defendants from interfering with the enjoyment by the Plaintiffs of the fishery pending the trial of the action.

7 Defences were delivered on behalf of all the Defendants denying the Plaintiffs" entitlement to the fishery and further denying that, if they had such a right, the Plaintiffs were entitled to a right of way across the lands of the Defendants to the river bank. The proceedings having come on for hearing before his Honour the late Judge John Cassidy, the Plaintiffs" claim was dismissed. The Plaintiffs having appealed, the case came on for hearing before me at the last sessions of the High Court on Circuit in Castlebar.

The Evidence

8 On behalf of the Plaintiffs, Paul Rainey Hann, a solicitor in a firm of solicitors in Fermanagh, Hanna & Falls, gave evidence that his firm had acted for the Langham family for many years. He produced a number of documents of title relating to the fishery and said that he had drafted the recent leases under which the Plaintiffs claimed to be entitled to the fishery. Sir James Langham also gave evidence and said that he understood that the fishery was originally owned by his grandfather, Arthur Rashleigh and that, on his death, it had passed to his two daughters, Lady Langham (the witness's mother) and Daune Elizabeth Rashleigh. He said that the latter subsequently took over the ownership of the fishery, but that as from 1982, he (the witness) took it over. At that time it was let to a Mrs. Constance Aldridge whose guests in her residence, Mount Falcon Castle, were allowed to fish on this stretch. He had entered into his first agreement with Mrs. Mary Gannon in 1989. He was not a keen fisherman himself and had never in fact been to the fishery. He had sold his entire interest in the fishery to the first-named Plaintiff for £60,000 during the course of the proceedings in the Circuit Court.

9 Josie Doherty, an engineer, gave evidence of having prepared a map of the area and taken a number of photographs. He said that there was a clearly visible path a long the river bank from Baker's Fishery at the Foxford end of the disputed stretch to Armstrong's Fishery at the Ballina end. He said that signs had been erected on the road through Jack's Park saying

10 "Private Land, Farmers Only".

11 One of the photographs showed the Land Commission Road as a metalled road and the field which, until access was prevented, was being used by the Plaintiffs as a car park. A sign erected beside the car park said:

"River Bank Path To Be Used Only.

Do Not Cross Fields.

Keep Area Litter Free.

Use The Bins.

Please Respect Land Owners And Their Property.

No Parking On Road Way."

12 The Plaintiffs also erected a sign close to the river bank headed "BEAL EASA FISHERY" featuring a map showing the extent of the claimed fishery.

13 Mr. Doherty's photographs also indicated a point at which a fence consisting of concrete poles and barbed wire had recently been erected preventing access to the river bank. They also showed a fence consisting of corrugated iron sheeting on the boundary between the holding of the brother of the seventeenth-named Defendant, Jack Moran, and "Cunny's Field". This fence, which came close to the river bank, had been erected after the Plaintiffs had taken over the fishery.

14 Mr. Doherty said that the pathway a long the river bank was at some points immediately beside the river, but in other places, where there was heavy vegetation going down the bank, was between 35 and 40 feet from the river. The use of this path way by anglers, he said, would not in any way affect the use of the lands in Jack's Park and the adjoining lands for agricultural purposes. He said that this was the only way of fishing the west bank and that the only means of access by a motor car was...