Maude and Others v Murphy and Others

JurisdictionIreland
CourtHigh Court (Irish Free State)
Judgment Date20 April 1934
Docket Number(1931. No. 348 P.)
Date20 April 1934
(1931. No. 348 P.)
Maude v. Murphy
ANTHONY FRITZ MAUDE AND OTHERS
Plaintiffs
and
CHARLES MURPHY AND OTHERS
Defendants.

Fishery - Claim to exclusive right to fishing - Claim disputed by tenant-purchasers under the Land Acts - Holdings purchased abutting on portion of Lough Melvin - Presumption that bed and soil of Lough ad medium filum passed - Whether presumption applicable to holdings purchased under Land Acts - Purchase agreements - Construction - Boundaries -"Pink Schedule" - Folio - Registration map - Local Registration of Title (Ir.) Act, 1891 (54 & 55 Vict. c. 66), sect. 55.

Trial of Action.

The plaintiffs were the trustees appointed by the will, dated the 14th day of May, 1929, of James Johnston, late of Kinlough House, Kinlough, in the County of Leitrim, deceased.

In their amended statement of claim the plaintiffs alleged that by an Indenture, dated the 20th day of January, 1841, and made between the Right Rev. George de la Poer, Lord Bishop of Kilmore and Ardagh, of the first part, the Ecclesiastical Commissioners for Ireland of the second part, and James Johnston of the third part, being a conveyance in perpetuity made pursuant to the provisions of the Church Temporalities Act (3 & 4 Wm. 4, c. 37), the said George de la Poer, Lord Bishop of Kilmore and Ardagh, granted unto the said James Johnston and his heirs that part of the See lands called Rosinver, containing by estimation 16 cartrons of land, with all waters, watercourses, liberties, privileges, profits, commodities, advantages, easements and appurtenances thereto belonging or appertaining, to hold the same unto the said James Johnston and his heirs and assigns for ever, yielding and paying therefor and thereout for ever the yearly rent of £197 5s. 1d., or such increased or diminished yearly rent as should from time thereafter be substituted therefor pursuant to the provisions of the said Act.

(The said See lands of Rosinver were stated to include certain townlands (which were set out in the statement of claim) in the Barony of Rossclogher and County of Leitrim, all of which townlands abut on Lough Melvin, and the statement of claim then continued:—)

The said James Johnston by his will, dated the 16th day of March, 1844, devised (inter alia) his lands in the County of Leitrim to his brother, William Johnston, for life, with power by deed or will to dispose of the same after his decease to any of the heirs male of him, the said William Johnston. The said James Johnston died without having altered or revoked his said will, of which probate was duly granted on the 24th day of February, 1848, to Robert St. George Johnston.

By indenture, dated the 4th day of June, 1885, and made between the said William Johnston of the first part, James Johnston, the only son of the said William Johnston, of the second part, and John Arthur Percy of the third part, and duly enrolled as a disentailing assurance on the 10th day of June, 1885, the said William Johnston appointed that from and after his death the several lands and premises comprised in the will of the said James Johnston should go to the use of the said James Johnston (party thereto) and the heirs male of his body, and by the same indenture the said William Johnston granted, and the said James Johnston, for the purpose of barring as well the estate tail thereby expressed to be appointed to him as any other estate tail to which he might be entitled under the said will or otherwise, did, with the consent of the said William Johnston, as protector of the settlement, grant and confirm unto the said John Arthur Percy and his heirs the several lands, hereditaments and premises situate in (inter alia)the County of Leitrim comprised in and devised by the said will of the said James Johnston, to hold the same subject as therein mentioned but discharged from every estate in tail or in tail male of the said William Johnston and the said James Johnston, or either of them, and from all estates to take effect after the determination or in defeazance of such estate in tail or estates in tail or either of them, to such uses and upon such trusts as the said William Johnston and James Johnston should by deed or deeds jointly appoint.

By indenture, dated the 5th day of June, 1885, and made between the said William Johnston of the first part, the said James Johnston of the second part, Sophia Johnston, Emma Caroline Johnston and Lucy Johnston, three of the daughters of the said William Johnston, of the third part, and John Arthur Percy and Charles John Tredennick of the fourth part, the said William Johnston and James Johnston appointed that (inter alia) the lands, hereditaments and premises situate in the County of Leitrim, the names and particulars whereof were set forth in the first schedule thereunder written, and which included the said See lands of Rosinver, should, subject to the contingent jointure and portions therein mentioned, go and be to the use of the said William Johnston for his life, and after his decease to the use of the said James Johnston, his heirs and assigns for ever.

The said William Johnston died on the 15th day of February, 1888, and thereupon the said James Johnston entered into possession and receipts of the rent and profits of (inter alia) the said See lands of Rosinver.

In the year 1908 the said James Johnston was in negotiation with the tenants of the tenanted portions of the said lands for the sale to them of their holdings under the provisions of the Irish Land Acts, 1903 and 1904, and by a preliminary agreement in writing, dated the 20th day of March, 1908, and made between the said James Johnston of the one part, and the several tenants whose names were written in the schedule thereto of the other part, it was agreed that in the event of the Estates Commissioners declaring the holdings of the tenants fit to be regarded as a separate estate, the vendor agreed to sell and the tenants agreed to purchase under the Land Purchase Acts the holdings of the said tenants under the conditions therein set out; and among the said conditions were included the following: "6. Sporting rights to be reserved to the vendor for his life, afterwards to be vested in the tenants. . . . 9. The salmon fishing in Lough Melvin to be reserved to vendor, but tenants keeping a boat will be allowed to fish for trout as usual." The said agreement was signed by 42 tenants, and the remaining tenants subsequently, on or before the 27th day of April, 1908, signified their acceptance of the terms therein contained.

The said sales under the Land Purchase Acts were duly carried out, and the holdings of the tenants on the said See lands of Rosinver were vested in the respective tenants on the 13th day of March, 1913.

The said James Johnston by his will, dated 14th day of May, 1929, appointed the plaintiffs to be executors and trustees thereof and, after bequeathing certain pecuniary legacies, he devised and bequeathed all his real and personal estate, not thereby otherwise disposed of, to his trustees, their heirs, executors and administrators, upon the trusts therein set forth.

The said James Johnston died on the 16th day of May, 1929, without having altered or revoked his said will, and on the 29th day of August, 1929, probate of the said will was duly granted forth of the Principal Probate Registry of the High Court of Justice, Saorstát Éireann éireann, to Anthony Fritz Maude, Christopher Hugh Maude and Frederick Digby Darley.

The said James Johnston, the grantee under the said indenture of the 20th day of January, 1841, and his successors in title down to the plaintiffs, have been ever since the date of the said indenture until the present time in exclusive possession and enjoyment of the right of fishing for salmon and trout in portion of Lough Melvin in the County of Leitrim [thereinafter set out] subject only to the permission granted by them to their tenants, keeping a boat, to fish for trout therein, as mentioned in the agreement already set out. And the persons so entitled under the said indenture have from its date to the present time exercised the sole and exclusive right of fishing for salmon and trout in the said waters, subject only as aforesaid, and have continually issued written and printed licences to fish in the said waters, and, save the said tenants, no one was permitted to fish, and no one did fish, in the said waters without such licence.

For some time past, after the death of the said James Johnston, the defendant, Charles Murphy, has interfered with persons authorised by the plaintiffs in the exercise and enjoyment of the right of fishing in the said portion of Lough Melvin which is situate opposite the said See lands of Rosinver, and has purported to issue tickets entitling the holders to fish in the said portion of Lough Melvin, described as "Rosinver Waters," and has prevented persons...

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  • Gannon v Walsh
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