Ingham v MacKey

• Jurisdiction: Ireland
• Judge: M. R.
• Judgment Date: 17 November 1897
• Court: Chancery Division (Ireland)
• Docket Number: (1897. No. 423.)
• Date: 17 November 1897

Ingham

and

Mackey.

M. R.

(1897. No. 423.)

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1898.

Easement — Prescription — Presumption of lost grant — Extinguishment — Land Judge's conveyance — Landed Estates Court Act, ss. 54, 55, 61 — Land Law (Ireland) Act, 1896, sect. 34, sub-sect. 3.

By deed, dated 11th December, 1896, the Land Judge granted to the plaintiff in fee the bed and soil of the river Shannon adjoining certain townlands mentioned, extending to the middle thread of the river (save and except the sites of certain eel weirs), and the several and exclusive right of fishing for all kinds of fish in the waters flowing over the bed and soil aforesaid, save and except the eel fishings; subject, as to part of the lands granted, to a public right of way, and subject, as to all the premises granted, to such other rights of way (if any) as then existed.

The defendants were owners of the weirs and of all rights of fishing for eels by means thereof.

In connexion with the eel fishery, there was a practice of placing the eels, when caught, in large boxes or tanks which rested on a part of the bed and soil of the river conveyed to the plaintiff. These receptacles were attached to the bank by means of chains, and could be shifted further from, or nearer to, the shore, according to the depth of water. The eels were thus kept alive for marketable purposes. For a period of such length that it might be taken to be forty years, in the absence of proof to the contrary, or, at any rate, of such duration as to justify the inference of a lost grant to quiet possession, the defendants or their predecessors in title had used these receptacles, or somewhat similar appliances, in like manner in connexion with the fishing for eels:—

Held, (1) that the right to use the tanks or boxes was an easement. (2) That the conveyance of 1896, being made subject only to “all rights of way,” was not made subject to any other easement whatever. (3) That, even assuming the defendants to have been previously entitled to the easement to place and use the receptacles in the manner proved for storing the eels when caught, that easement was extinguished by the Land Judge's conveyance to the plaintiff.

Trial of Action.

The plaintiff claimed “an injunction to restrain the defendants, their servants, agents, and licensees, from erecting or placing, and from permitting to remain erected and placed, upon the bed and soil of the river Shannon adjoining the townlands of Lacka, and Cloon, and Commons, situate in the barony of Clanwilliam, and county of Limerick, the tanks or boxes mentioned in the statement of claim, or from so placing or fixing the same that they shall remain floating in the waters flowing over the lands conveyed to the plaintiff by the deed in the statement of claim mentioned.”

The questions arising in the case, and the facts material for the decision, are stated in the judgment.

The Right Hon. The Mac Dermot, Q.C., Price, Q.C., Matheson, Q.C., and Brady, for the plaintiff.

The Solicitor-General (Kenny, Q.C.), Serjeant Jellett, Q.C., Wright, Q.C., and Vesey Fitz Gerald, for the defendants, the Commissioners of Public Works in Ireland.

Ronan, Q.C., Meredith, Q.C., and Redmond Barry, for the defendant Mackey.

The following statutes and authorities were referred to:—1 & 2 Wm. 4, c. 33, ss. 105–107, 111; 5 & 6 Wm. 4, c. 67; 2 & 3 Vict. c. 61, ss. 23, 31, 37, 44, 73; 9 & 10 Vict. c. 86; 2 & 3 Wm. 4, c. 71, ss. 2, 8; Landed Estates Court Act (21 & 22 Vict. c. 72), ss. 54, 55, 61; Rule 32 of Landed Estates Court Rules of 1859; Purchase of Land (Ireland) Act, 1885; Land Law (Ireland) Act, 1896, ss. 34, 48, 50; Conveyancing Act, 1881, sect. 6, sub-sect. 1; Gale on Easements, chap. 1; Shelford's Real Property Statutes, p. 5; Lancaster v. Eve (1); Pyer v. Carter (2); Cross v. Lewis (3); Gayford v. Moffatt (4); Aynsley v. Glover (5); Angus v. Dalton (6); Weld v. Hornby (7); Saunders v. Newman (8); Ewart v. Cochrane (9); Simpson v. Mayor of Godmanchester (10); Papendick v. Bridgwater (11); Symons v. Leaker (12); Laird v. Briggs (13);

Dand v. Kingscote (1); Earl of Antrim v. Dobbs (2); In re Jameson (3); Hamilton v. Musgrave (4).

The Right Hon. The Mac Dermot, Q.C., Price, Q.C., Matheson, Q.C., and Brady, for the plaintiff.

The Solicitor-General (Kenny, Q.C.), Serjeant Jellett, Q.C., Wright, Q.C., and Vesey Fitzgerald, for the defendants, the Commissioners of Public Works in Ireland.

Ronan, Q.C., Meredith, Q.C., and Redmond Barry, for the defendant Mackey.

The Master of the Rolls:—

The plaintiff, Edward Theodore Ingham, claims “an injunction to restrain the defendants, their servants, agents, and licensees, from erecting or placing, and from permitting to remain erected and placed, upon the bed and soil of the river Shannon, adjoining the townlands of Lacka, and Cloon and Commons, situate in the barony of Clanwilliam, and county of Limerick, the tanks or boxes mentioned in the statement of claim, or from so placing or fixing the same that they shall remain floating in the waters flowing over the lands conveyed to the plaintiff by the deed in the statement of claim mentioned.”

To the action as originally framed Anthony Mackey was the only defendant; but the Commissioners of Public Works applied for liberty to intervene, and were accordingly joined as defendants, and have been separately represented throughout the proceedings.

The title of the plaintiff, as stated in the claim, commences with a deed of 11th December, 1896, whereby the Land Judge, under the authority conferred upon him by the Landed Estates Court (Ireland) Act, 1858, and the amending Acts, in consideration of £4500 paid by the plaintiff on the 2nd July, 1896, granted to him “the bed and soil of the river Shannon adjoining the townlands of Fairyhall, Montpellier, Portcrusha, Lacka, Cloon and Commons, and Coolbane, extending to the middle thread of the stream of the said river, and situate in the barony of Clanwilliam and county of Limerick, and coloured blue in the map annexed hereto (save and except those parts thereof which are the sites of certain eel weirs acquired in the year 1838 by the late Shannon Commissioners, Limerick District, which eel weirs were then known as the two Island or Castle Weirs, the three Upper Cloon Weirs, the two Lower Cloon Weirs, and the two World's End Weirs, and whereof two only, now known respectively as the Upper Cloon Weir and the Upper Bleach Eel Weir, are still in

existence), and the several and exclusive right of fishing for all manner and kinds of fish of and in the waters flowing over the bed and soil aforesaid, save and except the eel fishings so acquired as aforesaid, by the said Shannon Commissioners,” in fee, subject “as to the said part of the lands of Lacka hereby granted to the public right of way,… and subject, as to all the said premises, to such other rights of way (if any) as now legally exist.”

This deed contains no express exception or reservation of any right in favour of the defendants or anyone else to place or keep boxes or tanks upon any part of the premises; and it is admitted that the tanks in question have been and are kept by the defendants upon part of the premises granted. The plaintiff would seem therefore to have a prima facie case, entitling him to the assistance of the Court. It may be material to mention that though the conveyance to the plaintiff was not, in fact, executed till the 11th December, 1896, the sale to him, by virtue of which he paid his purchase-money, as I have said, on the 2nd July, 1896, took place on the 26th June, 1896, from which date he was the equitable owner. His purchase, which is No. 14 on the rental of the De Burgho estate, included about 4 miles of the bed and soil of the Shannon, ad medium filum aquœ, with all the fishing rights therein, except the eel weirs and fishings which I have already mentioned, and is, of course, a very valuable property. It could not be, and was not, argued that, unless the defendants have in some way acquired or retained a right to do what is complained of, the keeping of any permanent or quasi-permanent structures in the place in question would not be an invasion of the plaintiff's rights such as would support this action. The case therefore turned, both in pleading and on the evidence, entirely upon whether the defendants have or have not the right in question, and the onus probandi is on them.

It appears that the plaintiff was for many years tenant, under the De Burgho family, of the salmon and trout fishings in the part of the Shannon comprised in his grant. He took the fishings annually, sometimes subletting for a part of the season, but personally using the angling rights nearly every year. Till 1896, however, he had acquired no permanent tenure, and whatever he had he held from the De Burghos.

The defendant Mackey is tenant under the Board of Works of the eel-weirs excepted from the plaintiff's grant, and of other eel-fishings in the Shannon from Athlone down, at a rent stated to be £2200 a-year. The eels at the place in question are caught during the fishing season (1st July to 31st January) by means of nets placed in the two existing weirs which are situated, as the map shows, in or near the centre of the stream of the Shannon. As the take of eels is very uncertain—enormous quantities being captured on favourable nights, and few or none on others—and as it is therefore manifestly very convenient, if not necessary, to store them so as to avoid waste and to equalize or regulate the quantity to be sent forward to the English markets, a practice has for a considerable time existed (how long, it will be necessary to consider), of placing them living in large boxes or tanks so constructed that when in the river the water will flow through them by means of openings and perforations, too small to allow the eels to escape, thus keeping the fish alive and fresh...