Johnston v O'Neill

• Jurisdiction: Ireland
• Judge: Ross, J.
• Judgment Date: 28 February 1908
• Court: Chancery Division (Ireland)
• Docket Number: (1907. No. 149.)
• Date: 28 February 1908

O'Neill

and

Johnston.

Ross, J.

(1907. No. 149.)

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1908.

Several fishery — Navigable non-tidal lake — Public user — Prescription — Evidence — Injunction — Practice.

Held, that, the plaintiffs' paper-title to a several fishery in the whole of the lough being irresistible, and their user under their title being the only reasonable and profitable user, the plaintiffs' title was not displaced by the evidence of long-continued user on the part of the public.

There was no evidence of any damage having been done to the plaintiffs' several fishery, save by the defendants fishing with draft-nets in Toome Bay, a small portion of Lough Neagh, situate at the north-western corner, where the waters of the lough discharge themselves in the Lower Bann river:—

Held, that the injunction against the defendants should be restricted to Toome Bay, with liberty to the plaintiffs to apply in respect of any further injury to their several fishery.

This was the trial of art action in which the plaintiffs claimed a declaration that they were entitled to the exclusive right of fishing for eels in Lough Neagh, and an injunction against the defendants to restrain them from fishing for eels in any portion of the said lough, and for damages sustained by the plaintiffs by reason of the defendants fishing for eels in the said lough.

The statement of claim alleged that at and previously to the granting of the Letters Patent, dated 3rd July, 1661, King Charles 2 was seised in his demesne in fee-simple in possession of all the fisheries of what kind soever of and in the pool of Lough Neagh, situate in the Counties of Down, Tyrone, Armagh, Antrim, and Londonderry, and the River Bann, and also all the islands in the said lough, and the bed and soil of the said lough.

The claim then set out a grant, dated 3rd July, 1661, by Charles 2, to Arthur, Earl of Donegall, of all the fishings and fishing places of what kind soever in Lough Neagh and the River Bann, and traced the title down to the present plaintiffs, the lessees under the present Earl of Shaftesbury of the said fishings. The claim alleged that poaching for eels had been extensively carried on in the said lough, and that the defendants from time to time had broken into and entered the premises, the property of the plaintiffs, and captured a large quantity of eels to the detriment of the plaintiffs, and of their fishing and fishing rights in the said lough, and also to the injury of the plaintiffs' other eel fisheries in the River Bann.

The defendants, by their defence, denied that King Charles 2 was seised in his demesne in fee-simple in possession of the fisheries and lands of Lough Neagh, and in the River Bann; they denied the plaintiffs' title as set forth in the statement of claim; they also denied the existence of a several fishery in Lough Neagh. The defendants further said that the said pool or lough, called Lough Neagh, at the time of the alleged acts complained of, was, and still was, and from time immemorial had been, a public and common navigable inland sea, and that every subject of the realm had, and of right ought to have, the right and privilege of fishing in and upon the said lough. As a further and alternative defence the defendants said that long prior to the several grants in the statement of claim specified, and in particular prior to the Letters Patent of King James 1, by divers royal grants, letters, and instruments, which had now been lost or destroyed by accident, the said King James 1, and other kings of England him preceding, did erect, confirm, grant, and establish a free and public common of piscary in or upon the said pool or lough, and the said king and kings did further in the divers instruments aforesaid dedicate to the public and general use of the said subjects all rights, members, easements, and privileges, about, in, and concerning the waters and soils of the said lough, necessary and proper to the full and free exercise of the public common of piscary aforesaid; and the said common of piscary had ever since been publicly used as such by the subjects of the realm: and that it was in exercise of the said free and public common of piscary, and not otherwise, that the defendants did the acts complained of.

The plaintiffs, by their reply, said that the pool or lough mentioned was an inland freshwater lake, and that the tides and waters of the sea had not at any time flowed and re-flowed therein, or in any part thereof.

The evidence at the trial was given by affidavit. The title of the plaintiffs, and the evidence as to the user by the plaintiffs and by the defendants, are fully stated in the judgment of Ross, J.

Ronan, K.C. (with him Jellett, K.C., and Gaussen), for the plaintiffs:—

The plaintiffs hold the eel fisheries in the Lower Bann River by the same title by which they hold the fisheries in Lough Neagh. They have asserted their right to the river fisheries by a long series of actions: O'Neill v. M'Erlaine(1). In Bristow v. Cormican(2), which was with reference to the scale fishery in the lough, the House of Lords held that the question was one for a jury. In that case the defendants' plea of a public right to fish was held bad on demurrer, and there was no appeal on this point. Therefore, it is established law that there cannot be a public right of fishing in Lough Neagh. The only question that remains now is, whether the fishing belongs to the plaintiffs or to some other person. As to user under their Patents the plaintiffs prove convictions against members of the public for fishing in parts of the lough. The defendants rely—(1) on a public right of fishing; (2) on lost grant; but the public cannot take by grant. A lost grant can only be assumed where the law allows a grant to be made. The public cannot by prescription or otherwise obtain a legal right to fish in a non-tidal river, even though it be navigable: Smith v. Andrews(3).

Gordon, K.C. (with him Healy, K.C., and J. P. Kerr), for the defendants:—

Assuming the plaintiffs' inquisitions and Patents to be good, a patentee may abandon his rights, and if he does so, his rights which belonged to the Sovereign go back to the Sovereign; but the patentee cannot after 300 years come back and put out the public, whether or not the public have any title. The exercise by the plaintiffs of acts of ownership over other parts of the property cannot be evidence of their ownership over the part in question here. The value of inquisitions as evidence is still open to dispute: Taylor on Evidence, section 1674; Phipson on

Evidence p. 327; Irish Society v. Bishop of Derry(1). The King has no right in inland rivers and non-tidal lakes. The inquisition of 1605 finds only half the lough to be in Queen Elizabeth. The title of the plaintiffs is so doubtful that no Court could say that there was a clear, irresistible paper-title in the plaintiffs. In addition to this defective paper-title, you have the fact that no person claiming under this title ever attempted to exercise any right of fishing for eels or to make any lease of the eel fisheries, even for the purpose of safeguarding the weir fisheries, and the right of fishing was openly invaded by the public.

Healy, K.C.:—

The Crown has no more right to grant a several fishery in non-tidal waters than it has in tidal waters since Magna Charta. No presumption can be made in favour of the title of the Crown: per Fitzgerald, J., in Bristow v. Cormican(2). The statutes 17 & 18 Geo. 3, c. 19, 39 Geo. 3, c. 51, and 44 & 45 Vict. c. 66 (Pollen Act, 1881), all dealt with Lough Neagh on the basis that it was a public lake. The Dynamite (1877) Act (40 & 41 Vict. c. 65) was in England extended to all private fisheries; can it be suggested that Parliament thought that Lough Neagh was not a public fishery? The Act 5 & 6 Vict. c. 106, s. 65, prevented the use of nets for the taking of salmon and trout, unless where a general public right of fishing existed; yet, although this statute was in force, no one went for an injunction until Bristow v. Cormican(2) (as regards salmon) and the present case (as regards eels), and there is no case at all as regards other fish. In the last-mentioned statute a “common of piscary” otherwise a public right of fishing, is recognized in an inland lake. In section 114 a “several fishery” is defined to mean an exclusive fishery possessed and enjoyed as such by virtue of grant, patent, or charter, or by Act of Parliament, or by prescription, provided that nothing should be construed to lessen or abridge “any public right of fishing by lawful means and in lawful seasons heretofore enjoyed and exercised within the limits of any such several fisheries.” By the Act 13 & 14 Vict. c. 88, s. 7, rating was

extended from several fisheries to all productive fisheries; yet this fishery has never been rated as a fishery at all Lough Neagh, unlike Lough Erne, was not formed by the swelling of a single river: sixteen rivers flow into it, and the Erne case does not affect it: Bloomfield v. Johnston(1).

No land could be granted by Letters Patent until the King's title was found by inquisition: 18 Henry 6 (1439), c. 4. The law of the land was the law of Magna Charta: “No freeman shall be disseised of his freehold, but by lawful judgment of his peers or by the law of the land.” In this case the pretended inquisitions were made after, and not before, the Patents. The so-called Patents were simply letters of marque, and were not under the Great Seal of Ireland. The statute 8 Henry 6, c. 16, required the return to be within one month of the inquisition and a regular panel to be taken by the sheriff. The inquisition of 1605 was not enrolled till 1684. The Patent of 1661 is bad, as no inquisition was had, except an inquisition had years before. As to the 1621 inquisition, there was no jurisdiction in the...