Linnane v Nestor

• Jurisdiction: Ireland
• Judgment Date: 31 March 1943
• Date: 31 March 1943
• Court: King's Bench Division (Ireland)

Linnane v. Nestor

PATRICK LINNANE

and

FRANK NESTOR, SUSAN NESTOR, SEAN McNAMARA and MARY ELIZABETH McNAMARA

Foreshore - Prescription - Claim to prescriptive title over portion of foreshore - Evidence of user - Taking of seaweed - Sufficiency of evidence - Licence under Foreshore Act, 1933 - Effect of licence - Constitution of Irish Free State (Saorstat Eireann) Act, 1922, Sch. 1, Art. 11 - Effect of Art. 11of Constitution on inchoate private interest in foreshore.

For sixty years and upwards, the defendant S. McN. and his predecessors in title had removed seaweed from the foreshore adjoining their lands. A licence under s. 3 of the Foreshore Act, 1933 (No. 12 of 1933) was granted in January, 1942, to the plaintiff, authorising him to remove seaweed from this portion of foreshore; in March, 1942, the defendant, S. McN., applied for and obtained a similar licence. The only access by land to the foreshore in question was over a passage way on S. McN.'s land. S. McN., aided by the other defendants, prevented the plaintiff from having access to the foreshore. The plaintiff brought proceedings in the Circuit Court and obtained a decree for damages and an injunction against the defendants. The defendants appealed.

Held by the High Court (Maguire P.) that the decree of the Circuit Court should be reversed, the defendants being entitled to exclude the plaintiff from S. McN.'s lands, and S. McN. having, on the evidence, established a prescriptive title to the foreshore in question.

Semble: Art. 11 of the Constitution of 1922 does not prevent time from continuing to run in favour of a person in process of acquiring a prescriptive title to the foreshore: dictum of Gavan Duffy J. to the contrary, in Attorney-Generalv. McIlwaine[1939] I. R. 437, at p. 447, doubted.

Appeal from the Circuit Court.

This was an appeal, heard by the High Court on Circuit at Ennis, from a decree of the Circuit Court Judge for County Clare (Judge O'Donnell).

The facts have been summarised in the headnote and are set out more fully in the judgment of Maguire P. post.

The plaintiff's claim, as set out in the Civil Bill, was as follows:—"(1.) The foreshore adjoining the townland of Mucknish West, in the Barony of Burrenn and County of Clare, comprised in the licence mentioned in paragraph 2 hereof, belongs to Éire éire. (2) By licence dated the 13th day of January, 1942, and granted pursuant to the Foreshore Act, 1933, s. 3, sub-s. 3, by the Minister for Industry and Commerce by way of permission in writing signed by a principal officer of the Department of the said Minister, the Minister for Industry and Commerce authorised the plaintiff to remove seaweed from the foreshore adjoining the said townland of Mucknish West as shown on a tracing referred to in the said licence. (3) Pursuant to the said licence, and in exercise of the authority thereby granted, the plaintiff with his servants and agents on several dates in the month of April, 1942, went to the said foreshore for the purpose of removing seaweed in accordance with the terms of his said licence, and on several dates in the said month of April, 1942, and particularly on or about the 3rd, 15th and 17th days of April, 1942, the defendants, and each of them, and their and each of their servants and agents obstructed the plaintiff and his servants and agents in...