Moore and Others v Attorney General

• Jurisdiction: Ireland
• Judgment Date: 27 June 1927
• Date: 27 June 1927
• Docket Number: (1927. No. 228.)
• Court: Supreme Court (Irish Free State)

Supreme Court.

(1927. No. 228.)

Moore and Others v. Attorney-General

ROBERT LYON MOORE and Others

and

THE ATTORNEY-GENERAL FOR SAORSTÁT saorstátÉIREANN éireann(1)

Practice - Interlocutory injunction - Several fishery in tidal waters - Disputed claim - Prima facie evidence of title - Magna Charta - Effect of Landed Estates Court conveyance - Irreparable damage - Appeal from discretionary order - Delay - Supreme Court of Judicature Act (Ir.),1877 (40 & 41 Vict. c. 57), sect. 28, sub-sect. 8.

Appeal by the plaintiffs from an order of Johnston J., dated 26th May, 1927, refusing their application for an interlocutory injunction. The plaintiffs sought to restrain the defendants by interlocutory injunction from trespassing upon their several fishery in the tidal portion of the River Erne, in the County of Donegal, between the Falls of Assaroe at Ballyshannon and the high sea or Bar of Ballyshannon, or fishing therein or taking fish thereout, and from obstructing the plaintiffs, their servants, licensees, or agents in the exclusive use and enjoyment of the said fishery.

Prior to the institution of the present action, the plaintiffs had issued summonses against the defendants for having entered into and upon the fishery for the purpose of taking or killing fish, contrary to 11 & 12 Vict. c. 92, sect. 41; but the District

Justice had held that he had no jurisdiction, as a question of title was involved. One of the plaintiffs had then applied for, and obtained, a conditional order for a writ of mandamus directed to the District Justice to hear and determine the summons, and the High Court had made the conditional order absolute; but, on appeal, the Supreme Court (Kennedy C.J. and Murnaghan J., FitzGibbon J. dissenting) had reversed that decision and discharged the conditional order. The case is reported ante, p. 406.

The further facts material to the present report are stated in the judgment of the Chief Justice.

Plaintiffs brought an action claiming a declaration that they were entitled to, and possessed of, a several fishery in the tidal waters of a certain river, and to the bed and soil underlying the said waters, and that such several fishery was a valid private interest preserved by the Constitution of the Irish Free State, and also claiming a perpetual injunction restraining the defendants and all other persons from trespassing upon the said fishery or fishing therein, and from obstructing the plaintiffs, their servants, or agents in the exclusives use or enjoyment of the said fishery. Prior to the institution of proceedings some of the defendants, for the purpose of challenging the plaintiffs' title, had proceeded to fish in the river with boats and nets, and subsequently they had taken large quantities of fish. The plaintiffs having applied for an interlocutory injunction pending the hearing of the action:

Held by the Supreme Court, reversing Johnston J., that all interlocutory injunction ought to be granted, as there had been no delay on the part of the plaintiffs in bringing the action, having regard to the importance of the issues raised, which included the determination of the question whether a several fishery in the river existed at the date of Magna Charta, and the validity of a patent of James I, and of its confirmation by Charles I; and also upon the grounds (per Kennedy C.J. and FitzGibbon J.) that there was a danger of destruction of, or permanent and irreparable injury to, the fishery; and (per FitzGibbon J. and Murnaghan J.) that the plaintiffs had enjoyed the right claimed for a long period of time, and the balance of justice and convenience was in favour of granting the injunction.

Cur. adv. vult.

Kennedy C.J. :—

This is an appeal from an order of Mr. Justice Johnston made on the 26th May, refusing the plaintiffs' application for an injunction pending the hearing of the action to restrain the defendants (other than the Attorney-General) from fishing in the tidal portion of the River Erne, in the County of Donegal.

The action was commenced by plenary originating summons issued on the 13th May, in the present year, wherein the plaintiffs claim a declaration that they are entitled to and possessed of a several fishery in the entire tidal portion of the River Erne, in the County of Donegal, from the Falls of Assaroe at Ballyshannon to the high sea or Bar of Ballyshannon, and to the bed and soil underlying the said waters, and that such several fishery is a valid private interest preserved by the Constitution of the Saorstát; and they claim an order quieting them in the

exclusive possession of such several fishery. The summons also claims a perpetual injunction "restraining the defendants and all other persons from trespassing upon the said fishery, fishing therein, or taking fish thereout; and from obstructing the plaintiffs, their servants, licensees, or agents, or any person or persons authorised by the plaintiffs, in the exclusive use or enjoyment of the said, fishery." It is stated in the endorsement that the Attorney-General for Saorstát Éireann éireann is sued as representing the public and the State of Saorstát Éireann éireann.

On the 16th May the plaintiffs served their notice of motion for an injunction pending the hearing of the action. The injunction asked for was substantially in the terms of the perpetual injunction claimed in the plenary summons, but it was asked only as against the forty-three named defendants, and not against the Attorney-General.

No pleadings have as yet been delivered on either side, and the motion, which was adjourned on the application of the Attorney-General, from the 16th to the 26th May, was dealt with on the affidavits filed, and was refused.

In the month of June, 1925, some of the present defendants, for the purpose of challenging the title of the plaintiffs to a several fishery in the tidal waters in question, having given formal notice of their intention, entered upon the waters with a boat and nets. They were summoned by the plaintiffs before the District Court, hut the District Justice held that his jurisdiction was ousted, there being a question of title involved. The plaintiffs then applied for and obtained from the High Court an order of mandamus requiring the District Justice to hear and determine the matter of the summonses. The defendants appealed to this Court, and, on the 28th February of the present year, the judgment of this Court was delivered allowing the appeal, and discharging the order of mandamus granted by the High Court (1).

No move was made by either party from the date of the judgment in this Court until the 11th May. It appears by the affidavits filed in support of the application for an injunction that on the 11th, 12th, and 13th, days of May all the defendants entered on the disputed waters with boats and nets and proceeded to fish, and captured and took considerable quantities of salmon. The plaintiffs immediately issued their plenary originating summons, and followed it up with the notice of motion for an injunction pending the trial.

One of the grounds upon which the learned Judge refused the injunction appears to have been delay on the part of the plaintiffs in commencing the action, referring to the period from the 28th February, when the judgment of this Court...