Lord Massy v Cassidy

• Jurisdiction: Ireland
• Judgment Date: 26 February 1883
• Date: 26 February 1883
• Court: Chancery Division (Ireland)

Appeal.

LORD MASSY

and

CASSIDY

Freuen v. Orr Long. & Town. 601.

The Duke of Devonshire v. Smith Al. & Nap. 442.

Whelan v. HewsonUNKIR I. R. 6 C. L. 283.

Stevens v. Jeacocke 11 Q. B. 731.

Frewen v. Orr Long. & Town. 601.

Couch v. Steel 3 Ell. & Bl. 402.

Atkinson v. The Newcastle and Gatshead Waterworks Company 2 Exch. Div. 441.

Gorris v. ScottELR L. R. 9 Exch. 125.

Hildige v. O'FarrellUNK 6 L. R. Ir. 493.

The North Eastern Railway CompanyELR L. R. 3 Q. B. 549.

Reeves v. Malcomson Special Reports of Fishery Cases before the Privy Council, p. 75.

Re Nore Bye-law Ibid. 653.

Re Suir, Nore and Barrow Bye-law Ibid. 675.

Hamilton v. The Marquis of Donegall 3 Ridgw, P. C. 267.

The Duke of Devonshire v. Smith 2 H. & B. 512.

Frewen v. Orr Long. & Town. 601.

Whelan v. HewsonUNKIR I. R. 6 C. L. 283.

Dalgliesh v. The Duke of AtholENR 5 Dow P. C. 282.

Day v. Brownrigg 10 Ch. Div. 294.

Cooper v. Whittingham 15 Ch. Div. 501.

The Duke of Devonshire v. Smith 2 H. & B. 512, 520.

Whelan v. HewsonUNKIR I. R. 6 C. L.283.

— Violation of right of fishing — Statutory offence —

YoL. XIII.] CHANCERY DIVISION. 97 to them their costs in the matter if there are any funds to meet Bankruptcy. 1884. them. 884 In re Solicitor for the Assignees : JIr. G. W. Murphy, Jun. PARKE. Solicitor for M'Conkey : Mr. J. Coulter. LORD MASSY v. CASSIDY. v. C. Irish Fishery Acts (5 4 6 Vict. c. 106, 134' 14 Vict. c. 88, 26 4 27 Vict. c. 114)- 1883. Violation of right of fishing-Statutory offence-Relief by action, although Feb. 7. different remedy specifically provided by same Acts. appeal. The owner of a right of fishing in the upper waters of a " river," as defined 1883. by the Irish Fishery Acts, may proceed by action against a person fishing in Feb. 26. the lower waters in a mode injurious to the Plaintiff's common law right, although the same Acts by which such particular mode of fishing was first renÂdered illegal provide a specific, remedy by penalties, fines or forfeiture, enforceÂable at Petty Sessions. Decision of CUATTEnTON, V. C., affirmed. ACTION for an injunction to restrain the Defendant from using any net for taking salmon within half a mile from the mouth of the river Bundrowess (Co. Leitrim), and from stretching any net entirely across the mouth of the same river, and praying for an inquiry as to the damage sustained by the Plaintiffs by reason of the acts complained of. The pleadings (so far as material) were as follows : Statement of claim :-1. Prior to the making of the agreeÂment hereinafter mentioned, the Plaintiff Lord Massy was entitled, as riparian proprietor, to the exclusive right of fishing on both banks of the Bundrowess river, in the county of Leitrim, from Lake Melvin to Mullinaleck Bridge, over the south bank, from thence to the sea. 2. The said river is much frequented by salmon. 3. By articles of agreement, dated the 26th February, 1880, the said Plaintiff Baron Massy let to the Plaintiff the Right Hon. G. A. C. May the said exclusive right of fishing, for a term still =expired. LAW REPORTS (IRELAND). [L. R. L 4. The said river Bundrowess was, at the time of the doing of the acts hereinafter complained of, a river within the meaning of the Acts 5 & 6 Viet. c. 106, and 13 & 14 Vict. c. 88, and the various other Acts regulating fisheries in Ireland; and the mouth of said river had been ascertained and defined pursuant to the provisions of said Acts by the Commissioners thereby apÂpointed. 5. After the passing of the said Acts, and after the making of the said agreement, the Defendant, on divers days and times, did shoot, draw and use a net for taking salmon within half a mile seaward from the mouth of said river, as so defined as aforesaid ; and the Defendant was not at the time of the doing of said acts the proprietor of a several fishery and fishing within the limits thereof. 6. After the making of said agreement, and after the passing of said Acts, the Defendant, on divers days and times, did shoot, draw and stretch nets entirely across the mouth of said river ; and the Defendant was not, at the time of the doing of said acts, the proprietor of a several fishery in the whole of said river. 7. By the acts of the Defendant aforesaid, numbers of salmon were prevented from passing up said river to the places where the Plaintiffs were entitled to the exclusive right of fishing as aforeÂsaid ; and the said exclusive right of fishing is materially dimiÂnished in value. The Plaintiffs claimed:- 1st. An injunction to restrain the Defendant and his servants from shooting, drawing or using any net for taking salmon within half a mile from the mouth of said river; and from shooting, drawing or stretching any net entirely across the mouth of said river. 2ndly. An inquiry as to the damages sustained by the PlainÂtiffs by reason of the acts aforesaid. The 1st paragraph of the defence was as follows: Admitting for the purposes of this defence, but no further, that the Defendant committed the acts complained of in sections 5 and 6 of the statement of claim, the Defendant says that same were done in tidal waters by means of floating nets, commonly called draft or seine, which the Defendant was duly licensed to VoL. XIII.] CHANCERY DIVISION. 99 use, pursuant to the provisions in that behalf of the Acts of Par- V. C. liament...