Little and Others v Cooper and Others

JurisdictionIreland
Judgment Date27 May 1937
Date27 May 1937
Docket Number(1934. No. 306 P.)
CourtHigh Court (Irish Free State)
Little and Others v. Cooper and Others
MARGARET LITTLE AND OTHERS
and
GEORGE COOPER AND OTHERS
(1934. No. 306 P.)

Several fishery - Tidal and non-tidal waters - Claim to fishery disputed - Evidence sufficient to establish claim - Ancient documents - Presumption from long continued possession - Magna Charta - Date of operation in Ireland - Whether waters could have been "put in defence" prior to Magna Charta - Historical possibility - Evidence - Admissibility of ancient documents.

Plaintiffs instituted an action in which they claimed to be possessed of and entitled to a several fishery in the tidal portions of the estuary of the River Moy in the Counties of Mayo and Sligo from and including the weirs at Ballina and Ardnaree to the high sea, and an injunction to restrain the defendants from trespassing upon the said fishery and from fishing therein, and from obstructing the plaintiffs or any persons authorised by them, in the exclusive use and enjoyment of the fishery.

Upon the evidence, documentary and oral, tendered at the trial of the action,

Held, that in the counties of Mayo and Sligo, prior to Magna Charta, the appropriation of several fisheries in estuaries and arms of the sea and the establishment of an exclusive right to fish in such places was a possibility of fact which could not be excluded.

Moore v. Attorney-General, [1934] I. R. 44, explained and distinguished.

Plaintiffs tendered evidence that since 1609 they and their predecessors in title had exclusively possessed and enjoyed a several fishery in the estuary of the River Moy.

Held, that as the "putting in defence" of a several fishery in the estuary, prior to Magna Charta, was a historical possibility, the Court must presume from the long continued possession and enjoyment of the plaintiffs that the fishery had in fact been put in defence prior to Magna Charta.

Malcomson v. O'Dea, 10 H. L. C. 593; Neill v. Duke of Devonshire8 App. Cas. 135, and Moore v. Attorney-General, [1934] I. R. 44, applied.

Date of the application of Magna Charta to Ireland discussed.

Trial of Action.

The plaintiffs instituted proceedings in which they claimed to be possessed of and entitled to a several fishery in the tidal portion of the estuary of the River Moy in the Counties of Mayo and Sligo from and including the weirs at Ballina and Ardnaree to the high sea, and an injunction to restrain the defendants from trespassing upon the said fishery and from fishing therein and from obstructing the plaintiffs, or any persons authorised by them, in the exclusive use and enjoyment thereof. The defendants denied that the plaintiffs were possessed of or entitled to a several fishery, alleged that the waters had not been"put in defence" prior to the Magna Charta, and justified alleged trespasses by a claim to a public right to fish in the estuary. The Attorney-General was joined as a defendant to represent the public, and raised the same issues as had the other defendants. The pleadings were substantially similar to those in Little v. Moylett(1) in so far as the latter concerned the several fishery alleged to exist in the tidal waters of the estuary. A considerable body of evidence was given at the trial, the material parts of which are summarised in the judgment of Johnston J., infra.

Cur. adv. vult.

Johnston J. :—

During the hearing of this case a discussion took place as to the nature and extent of the population in the twelfth century of the locality through which the River Moy flows, and it was suggested by some of the witnesses for the Attorney-General that the population was so scanty and the food requirements of the district so slight that it was extremely unlikely that a regular fishery, carried on for purposes of profit or to meet economic necessities, could possibly have been in operation in such a place, in the reign of King John. This is, of course, a matter which is incapable of definite proof; but I think that the probabilities are the other way. There must always have been a plentiful supply of salmon passing

up the estuary to the healthy spawning ground in the lakes of County Mayo. The estuary was designed by nature as the outlet to and the inlet from the sea for the whole of north Mayo; and we know that before the days of railways and stage coaches, the sea was, as a highway for traffic, a great deal more popular and useful than it is now. We know that there was a church at Ardnaree from the earliest times and, in all probability, a castle as well, and these institutions connoted human beings and social life. Further, we know as a matter of history that, after the Treaty of Windsor in 1175, there was very considerable coming and going on the part of both the Anglo-Normans and the Irish in north Mayo and Sligo, and I think that it is not improbable that in the latter part of the twelfth century the district of the estuary and inland as far south as the Abbey of Cong was a great deal more populous and busy than it was in latter times. If circumstances had been more propitious the town of Ballina might, as a result of the physical conditions of the country, well have been a Galway or a Waterford, or even a Belfast or a Liverpool.

There is actual evidence of a positive character that a fishery had been carried on in the Moy estuary for more than three hundred years, carried on by persons claiming the right to do so, and recognised for hundreds of years by the fishing authorities, by the rating authorities, by the financial authority of the country (which has successfully claimed both quit-rent and income tax in respect of it in the past), by the Legislature, and even by the public itself; and I am satisfied (as I was satisfied in 1929 inLittle v. Moylett(1)) that the plaintiffs have proved a good title to that fishery as from the year 1609, when the Moy Inquisition took place and it was found by a local jury that the fisheries there belonged altogether to the King and his heirs and successors in right of his Crown and Kingdom of Ireland. The Case of the Royal Fishery of the Banne(2) was not heard until late in 1610 (Mich. 8 Jac.) and the Moy Inquisition—more than a year earlier —could not be said to have been affected by anything that was said in that case; but, in any event, the inquisition is indicative of the existence of a fishery at Ardnaree as early as 1609. It sets out—and this is a point of importance—that the yearly value of this fishery, besides all reprises, was twenty-six shillings and eightpence. It was followed by the royal grant of the fishery to Nicholas

Nugent in 1611, and by the charter to Sir George Preston, in 1661. The grant to Nugent included various denominations of land and other hereditaments, and it was set out, in a most compendious way, that all the premises were granted to him "in as ample manner and form as all those or any parcel thereof have come or ought to have come to our hands or to the hands of any of our progenitors or ancestors, Kings or Queens of England, by reason or pretext of any exchange or perquisite or of any gift, grant, confirmation, or of any attainder, or forfeiture or escheat, or of any Act or Acts of Parliament, or by reason of any lawful prescription or custom or in right of our Crown or ancient inheritance or by whatsoever other legal manner, right or title above recited, or not recited, or ill recited, or in our hands now are." The Attorney-General, who alone in the present case, has contested the plaintiffs' claim, does not in any way controvert the plaintiffs' modern title, and it must be taken as having been established beyond question or doubt. The question how the Moy fishery may have come back into the hands of the Crown in 1609—by escheat or otherwise—is dealt with in my judgment in Little v. Moylett(1), and I need not repeat what I said then.

The fact that this fishery has been in existence for 327 years or longer is one of tremendous importance in this case, one that cannot be lightly treated as of negligible consequence. We find the plaintiffs and their predecessors openly and in full view of the public and of a long succession of Attorneys-General using and claiming this fishery as a several fishery during the seventeenth, the eighteenth and the nineteenth centuries, throughout the troubles of the Commonwealth period, the reign of James II. in Dublin, the period of Grattan's Parliament, and the period of the Parliament of the United Kingdom of Great Britain and Ireland, and no one ever, so far as I am aware, dreamt of contesting their claim until a considerable number of years after the establishment of the Irish Free State. The matter involved in the case of Little v. Gore (which regrettably has not been reported, although there are references to the litigation in Batty at pages 236 and 444) was really not contested at all, as the defendants appear to have run away from the claim that they had put forward and the litigation ultimately resolved itself into a mere assessment of damages. The litigation in 1858 in Little v.Wingfield(2) arose out of a dispute between two parties,

both of whom asserted that the fishery in the estuary was a several fishery, the only question being one as to who was the owner. Those proceedings, which were of a lengthy and widely advertised character, first at the Assizes in Sligo in the spring of 1858, then in the Court of Common Pleas in Dublin and finally in the Court of Exchequer Chamber, "again brought to the notice of the public, in a most impressive manner, the nature of the plaintiffs' claim and the evidence of their title."

I cannot find, therefore, that the claim of the plaintiffs and their predecessors ever was disputed from 1609 until in the year 1927—nearly three centuries and a quarter later —certain persons entered upon the fishery and claimed a right to fish there as members of the public. In the action which the plaintiffs then brought to establish their rights the defendants pleaded that the fishery was not one that...

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