Inland Fisheries Ireland v O'Baoill
| Jurisdiction | Ireland |
| Judge | Ms. Justice Laffoy delivered |
| Judgment Date | 19 December 2012 |
| Neutral Citation | [2012] IEHC 550 |
| Court | High Court |
| Docket Number | [No. 5228 P/2009] |
| Date | 19 December 2012 |
[2012] IEHC 550
THE HIGH COURT
BETWEEN
AND
INLAND FISHERIES ACT 2010 S6
INLAND FISHERIES ACT 2010 S8
FISHERIES (CONSOLIDATION) ACT 1959 S178
FISHERIES ACT 1980 S11(1)
FISHERIES ACT 1980 S11(2)
FISHERIES (AMDT) ACT 1999 S8
GANNON (T/A BEAL EASA FISHERY) v WALSH & ORS 1998 3 IR 245 1996/11/3491
IRISH LAND ACT 1903
IRISH LAND ACT 1909
REGISTRATION OF DEEDS & TITLE ACT 2006 S22
MARQUIS OF CONYNGHAM v O'DONNELL UNREP CA 9.5.1906
HENNESSY & CO v KEATING 1907 41 ILTR 203
LAND LAW (CMSN) ACT 1923 S5
LAND LAW (CMSN) ACT 1923 S6
LAND LAW (CMSN) ACT 1923 S7
MINISTERS & SECRETARIES ACT 1924 S1(vi)
IRISH LAND CMSN (RE-DISTRIBUTION OF PUBLIC SERVICES) ORDER 1927 SI 55/1927
MINISTERS & SECRETARIES (AMDT) ACT 1928 S3
IRISH LAND CMSN (FISHERIES & RURAL INDUSTRIES) (TRANSFER OF FUNCTIONS) ORDER 1928 SI 60/1928 ART 6
IRISH LAND CMSN (DISSOLUTION) ACT 1992 S5
INLAND FISHERIES ACT 2010 S51
INLAND FISHERIES ACT 2010 S6(3)(A)
LONGFIELD THE FISHERY LAWS OF IRELAND 1863 210
BLOOMFIELD v JOHNSON & ANOR 1863 13 ICLR 57
MURPHY v RYAN 1867 2 IRCL 143
BLAND LAW OF EASEMENTS 2ED 2009 PARA 9.02
HARRIS & ANOR v EARL OF CHESTERFIELD & ANOR 1911 AC 623
HOGAN & WHYTE JM KELLY: THE IRISH CONSTITUTION 4ED 2003 PARA 8.2.106
LORD CHESTERFIELD v HARRIS 1908 2 CH 397
GOODMAN & BLAKE v SALTASH CORP 1882 7 APP CAS 633
BLAND LAW OF EASEMENTS 2ED 2009 PARA 9.12
FISHERIES ACT 1980 S11
INLAND FISHERIES ACT 2010 S7
INLAND FISHERIES ACT 2010 S7(1)
INLAND FISHERIES ACT 2010 S7(2)
MANCHESTER AIRPORT PLC v DUTTON & ORS 2000 QB 133 1999 3 WLR 524 1999 2 AER 675
INLAND FISHERIES ACT 2010 S52
FISHERIES
Title
Ownership of fishing rights in portion of river - Plaintiff claiming sole right to manage and control fishery - Plaintiff claiming trespass by defendants - Whether plaintiff entitled to maintain action in trespass against defendants - Whether defendants having right to fish in river - Manchester Airport plc v Dutton [2000] QB 133 followed - Harris v Chesterfield (Earl) [1911] AC 623 distinguished - Gannon v Walsh [1998] 3 IR 245 considered - Findings in favour of plaintiff (2009/5228P - Laffoy J - 19/12/2012) [2012] IEHC 550
Inland Fisheries Ireland v O'Baoill
Facts: The plaintiff instituted proceedings against the defendants in relating to fishing rights along a stretch a river. It was the plaintiff's contention that owing to its statutory functions, an agreement with a local fishing club and agreements with local landowners it was entitled to restrict access to fishing to members of the local fishing club and holders of visitors permits. It was further contended that the defendants had continued to fish acting contrary to the plaintiff's agreements had resulted in loss, damage, and inconvenience to the defendant. A claim for damages was also brought for trespass. The defendants contended that the stretch of river in question "was a free fishery" and that had been the situation since time immemorial. It was submitted that the defendants were entitled by way of easement to fish and had acquired a profit à prendre to take fish from the river.
Held by Laffoy J in finding in favour of the plaintiff: On the basis of the evidence presented it had been shown that the plaintiff did have the right to manage that part of the fishery and the defendants had not established that they had an equal or superior right. Statutory rights had been vested in the defendant by virtue of the Inland Fisheries Act, 2010. As a matter of law, members of the public, whether from the locality or otherwise, had no right to fish in the non-tidal portions of the river notwithstanding that for probably in excess of ninety years the fishery had been unregulated and members of the public had fished there freely. The type of public right, based on long user, which was asserted on behalf of the defendants was not recognised at common law. There was no evidence to support the existence of a right in the form of an easement or a profit à prendre as asserted by the defendants.
In the six days during which these proceedings were at hearing, the Court heard evidence in relation to the steps taken in the previous decade by the Northern Regional Fisheries Board (NRFB) in relation to the development and management of angling in County Donegal and, in particular, on the Gweebarra River, commencing with the publication in 2002of Outline Proposal for the Development and Management of Angling in Donegal - Consultation Document, known locally as "the Blue Book", and following through the consultation process in the locality, culminating in an agreement for the management of the Gweebarra Fishery made on 9th March, 2007 between the Gweebarra Fishing Club of the one part and of NRFB of the other part (the 2007 Agreement). The Court also heard evidence of alleged tortious acts by the defendants against NRFB in its development and management of fishing in the Gweebarra River. However, what the Court is concerned with in this module of the proceedings, as will be explained later, is to determine issues in relation to ownership of and title to fishing rights in a small segment of the freshwater portion of the Gweebarra River. That has involved the Court in considering a large number of title documents and the evidence of the witnesses for the plaintiff and also the evidence of the defendants and their witnesses as to the manner in which the Gweebarra River was fished prior to 2007. The focus of this judgment is on the title documents and on that evidence. However, as, from the outset, it was nigh impossible to discern the nature of the right to fish which the defendants were contending they enjoy in relation to the segment of the Gweebarra River under consideration, it is necessary to consider the pleadings in some detail.
When these proceedings were initiated by plenary summons which issued on 8th June, 2009, the plaintiff was NRFB. By order of the Court (Murphy J.) made on 21st November, 2011 the title was amended by the substitution of the current plaintiff for NRFB. This amendment was necessitated by the provisions of the Inland Fisheries Act 2010 (the Act of 2010), which established Inland Fisheries Ireland (s. 6) and transferred the statutory functions of the Central Fisheries Board and the NRFB to it (s. 8).
The plaintiff sought the following reliefs in the plenary summons:
(a) a declaration that the defendants together with all persons acting in concert with them do not have the right to fish "the Gweebarra Salmon Rod fishery County Donegal" (thereafter and hereafter referred to as "the Fishery") in the waters shown coloured yellow on a map, which was identified, without a permit issued by or with the authority of the plaintiff;
(b) an injunction restraining the defendants together with all persons acting in concert with them and all persons having notice of the making of the order from howsoever intimidating or watching or besetting persons holding permits issued by or with the authority of the plaintiff who are entering upon and/or fishing the Fishery;
(c) an injunction restraining the defendants together with all persons acting in concert with them and all persons having notice of the making of the order from entering upon and/or fishing the Fishery without an individual permit issued by or with the authority of the plaintiff to any such persons;
(d) an injunction restraining the defendants together with all persons acting in concert with them and all persons having notice of the making of the order from howsoever communicating to persons holding permits issued by or with the authority of the plaintiff who are entering on and/or fishing the Fishery that they are not entitled to fish the Fishery; and
(e) an injunction restraining the defendants together with all persons acting in concert with them and all persons having notice of the making of the order from inciting persons wishing to fish the Fishery to do so without a permit issued by or with the authority of the plaintiff and from representing to such persons that they would be entitled to do so by joining the Fintown or Rosses Anglers Clubs.
4. Contemporaneously with the plenary summons, the plaintiff issued a notice of motion seeking interlocutory injunctive relief in terms similar to the permanent injunctive relief sought in the plenary summons. The motion was grounded, inter alia, on an affidavit of Gerry McCafferty sworn on 8th June, 2009. The map referred to in the endorsement of claim on the plenary summons was exhibited in Mr. McCafferty's affidavit. In exhibiting the map, it was made clear by the deponent that the proceedings related to the Fishery "in the fresh water portion of the Gweebarra river system", which was shown coloured yellow on the map. The catchment area drained by the Gweebarra River, including its tributaries, was shown coloured pink on the map. In identifying the boundary between the tidal and fresh water portions of the Gweebarra River, the plaintiff relied on the definition in Ministerial Definition No. D.140 dated 6th December, 1946, which defined it as a "straight line drawn across the said river … at right angles to its course 70 yards downstream of the bridge known as Doochary Bridge in the townlands of Coolboy and Derrynacarrow". While that definition, when considered in the context of the other descriptions of townlands through which the River Gweebarra and its tributaries pass, inevitably evokes Brian Friel's "Translations", one of the few areas on which there is not dissent between the parties in this case is where the location of the line between tidal and non-tidal waters is. The area shown coloured yellow on the map includes...
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