Johnston v O'Neill

• Jurisdiction: Ireland
• Judgment Date: 30 November 1908
• Date: 30 November 1908
• Court: Court of Appeal (Ireland)

O'Neill

and

Johnston (1).

Appeal.

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.

1909.

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

Held, by the Court of Appeal, affirming the judgment of Ross, J., that the plaintiffs' documentary title to a several fishery in the whole of the Lough being in point of law coercive, and their user under this title being the only reasonable and profitable user, the plaintiffs' title was not displaced by the evidence of long-continued fishing by 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 into the Lower Bann River:—

Held, also, by the Lord Chancellor (Lords Justices FitzGibbon and Holmes concurring with hesitation), 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; the concurrence of FitzGibbon, L.J., in the injunction so limited being based upon the assumption that, under the liberty to apply, the plaintiffs would be sufficiently protected against any further substantial damage.

Appeal by the defendants from the judgment of Ross, J., and cross-appeal by the plaintiffs from the judgment, so far as it limited the injunction to Toome Bay. The case before Ross, J., is reported [1908] 1 I. R. 358, where the facts and the documentary title of the plaintiffs are fully stated. These will also be found recapitulated in the judgment delivered by Holmes, L.J., infra.

Gordon, K.C., Healy, K.C., and Kerr, for the defendants.

Ronan, K.C., Jellett, K.C., and Gaussen, for the plaintiffs.

The arguments of counsel on the appeals did not materially differ from those already reported, and are so fully referred to in the judgments that it is unnecessary to repeat them here.

Holmes, L.J.:—

This is an appeal from a judgment of Ross, J., the effect of which is to declare the plaintiffs entitled to the exclusive right of fishing for eels, and to all eel-fishings and eel-weirs in Lough Neagh, for the residue of a term of 5000 years, demised by a lease of the 18th July, 1905, and to award a perpetual injunction restraining the defendants from fishing for or taking eels, or from interfering with the plaintiffs' eel-fisheries in the portion of Lough Neagh known as Toome Bay.

Lough Neagh is an inland lake, the area of which exceeds one hundred and fifty square miles. It is navigable; and steamers, as well as other vessels carrying passengers and merchandise, use it as a highway from place to place on its shores. It abounds in fish, and receives the waters of several rivers; but it has only one important effluent—the Lower Bann—which flows from the north-western corner of the Lough, known as Toome Bay, and reaches the sea near Coleraine. Although the controversy in this action is confined to eel-fishing in the Lough itself, the lease of the 18th July, 1905, referred to in the judgment appealed from, includes in the demise thereby made the eel-fishery within the River Bann, near Toome Bridge, with all the weirs, dams, and other appurtenances, belonging to or usually enjoyed therewith. This has been for at least eighty years—and probably for centuries before—a fishery of great value; and it may be assumed that the right of the plaintiffs thereto cannot now be challenged. If good title to any property can be shown by documents, user, and legal decision, the right to this fishery of the persons through whom the plaintiffs claim has been long since established. As pointed out by Mr. Justice Ross, their title has been found by the verdict of a jury, supported by the decision of a Divisional Court, and subsequently upheld by two decisions of the Vice-Chancellor, one of which was affirmed on appeal. In these circumstances, I am bound to hold that the plaintiffs' right to all eel-fishings in the River Bann is no longer in dispute; and it is certainly not a subject of controversy in the present action. Still it has an important bearing on the issue now before the Court, inasmuch as the plaintiffs' root of title to the Bann eel-fisheries is the same document on which they rely as constituting their root of title to the eel-fishings of the Lough. I refer to the Letters Patent of the 3rd July, 1661, by which, after certain recitals, King Charles 2 granted to Arthur, Earl of Donegall, his heirs and assigns, all the fishings and fishing-places of what kind soever in the lough or pool of Lough Neagh and Toome, and in the river of the Bann from the aforesaid lough or pool to the rock or fall of water called the Salmon Leap in the River Bann, together with the eel-weirs in the said river. It cannot be denied that such fisheries and rights of fishing in Lough Neagh and the River Bann as were conferred by this Patent on Arthur, Earl of Donegall, were, at the date of the lease of 1905, vested in the Earl of Shaftesbury, the lessor therein. Documents have been given in evidence showing with singular completeness the chain of title; and, therefore, the first, the cardinal, and, indeed, I would say the only, question to be considered is, whether Charles 2 was himself seised in fee of the fisheries and fishings in Lough Neagh, which, in 1661, he purported to grant to Lord Donegall. The grounds on which I am prepared to so hold is that whatever may be the rights of the plaintiffs, the defendants can have no legal title to fish or capture eels in Lough Neagh. Their only claim to do so is as members of the public; and this claim is based on the allegation to be found in paragraph 7 of their defence, “that Lough Neagh is, and from time immemorial has been, a public and common and navigable inland sea, and every subject of the realm has, and of right ought to have, the right and privilege of fishing in and on the same Lough.” A defence, in the same words, was pleaded in Bristow v. Cormican(1), a case to which I shall presently refer in more detail, but which it is now enough to say was an action for trespass to a several fishery in a portion of Lough Neagh called Feumore. To this defence there was a replication averring that the tides of the sea had never flowed in Lough Neagh. To this replication there was a demurrer which was overruled, and, although the case was afterwards heard by the House of Lords on another point, the order overruling the demurrer was not questioned. Palles, C.B., in giving judgment on this demurrer, says:— “The question thus raised is, whether the meaning of the word ‘navigable,’ in the sense in which it is used in defining the waters in which the public have prima facie a common of fishing is synonymous with ‘tidal.’ If it were now open to consider that question unfettered by authority, I should deem it one which would require grave consideration.” But, as the learned Chief Baron went on to show, this very question was decided in Bloomfield v. Johnston(2), so far back as the year 1862, by the Court of Exchequer Chamber in this country; and he rightly regarded that decision as a conclusive authority in his Court. It is also an authority which the Irish Court of Appeal ought to follow, unless it has been overruled or seriously shaken by subsequent decisions; but no such decisions are to be found in our Law Reports. On the contrary, the defence disposed of by the demurrer in Bristow v. Cormican(1) has not, as

far as I am aware, been since relied on; and although the House of Lords, in giving judgment in that action, carefully avoided expressing an opinion on a matter that was not the subject of appeal, its decision that the Crown had no de jure right to the soil or fisheries of an inland navigable lake, seems at least to I suggest that there can be no public right of fishing therein. This proposition laid down by all the peers distinguishes, as far as prima facie ownership of the soil and fisheries is concerned, Lough Neagh from the tidal waters of a river, and places it in the same position as the portion of a river that is non-tidal, in which it is well settled that there can be no public right to fish. It is, I think, not unreasonable to apply the same rule to the waters of Lough Neagh. But, whatever view may be taken hereafter of this question by the House of Lords, it is for the present settled in all Irish Courts. Indeed, no attempt has been made in the arguments addressed to us to support the defence to which I have called attention, nor did counsel for the appellants even mention Bloomfield v. Johnston(1), or the demurrer in Bristow v. Cormican(2); and I gather that the same course was followed in the Divisional Court, for I find Ross, J., beginning his judgment by stating two propositions of law as if they had been accepted by both parties without doubt or discussion. “The first,” he says, “is that the Crown is not of common right entitled to the soil or waters of an inland non-tidal lake. The second is, that no right can exist in the public to fish in the waters of an inland non-tidal lake.”

Although some other subjects have been touched on by counsel for the appellants, their real defence is that the Court ought not to find on the evidence that the fishings in Lough Neagh were vested in the Crown at the date of the Patent of the 3rd July, 1661. This is a question of fact, as to which, apart from evidence, there is no presumption one way or other; but the onus of proof rests upon the plaintiffs. It has been suggested rather than seriously argued that, even if the Patent of 1661 vested the fishings of the Lough in the Earl of Donegall, he or his successors in title may have afterwards abandoned their rights or transferred them to some

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