Moore and Others v Attorney General

• Jurisdiction: Ireland
• Judgment Date: 18 February 1929
• Date: 18 February 1929
• Court: High Court (Irish Free State)

Moore and Others v. Attorney-General and Others.

ROBERT LYON MOORE and Others

Plaintiffs

and

THE ATTORNEY-GENERAL FOR SAORSTÁT saorstátÉIREANN éireann,WILLIAM GOAN, and Others

Defendants.

Several fishery - Tidal and navigable waters - Claim to fishery disputed - Evidence sufficient to sustain claim - Ancient documents - Inquisitions - Crown grants - Presumptions of law - Magna Charta - Whether waters must have been "put in defence" by the Crown - The Brehon Laws - Landed Estates Court conveyance - Parliamentary title - Constitution of the Irish Free State (Saorstát Éireann éireann) Act, 1922 (No. 1 of 1922),Sch. I, Art. 11.

Trial of Action.

Prior to the institution of the present action, the plaintiffs had issued summonses against the defendants (other than the Attorney-General) for having entered into and upon the fishery, to which the present action related, for the purpose of taking or killing fish, contrary to 11 & 12 Vict. c. 92, sect. 41; but the District Justice, before whom the summonses came for hearing, held that he had no jurisdiction, as a question of title was involved. One of the plaintiffs then applied for, and obtained, a conditional order for a writ of mandamus directed to the District Justice to hear and determine the summonses, and the High Court made the conditional order absolute; but, on appeal, the Supreme Court (Kennedy C.J. and Murnaghan J.; FitzGibbon J. dissenting) reversed that decision, and discharged the conditional order. The case is reported [1927] I.R. 406.

The plaintiffs then instituted the present action, and applied for an interlocutory injunction, which Johnston J. refused on the 26th May, 1927, but, on appeal, the Supreme Court, on the 27th June, 1927, reversed the decision of Johnston J., and granted the interlocutory injunction. The case is reported [1927] I.R. 569.

The plaintiffs' statement of claim was as follows:—

"1. The plaintiffs claim to be entitled to a several fishery for salmon and all other fish in the entire tidal portion of the River Erne, in the County of Donegal, from the falls of Asseroe at Ballyshannon to the high sea or bar of Ballyshannon, and to the bed and soil underlying the said waters.

2. From time whereof the memory of man is not to the contrary, the said portion of the said river, and the sole and several right of fishing for salmon and all other fish therein, had been put in defence.

3. Prior to the granting of the letters patent hereinafter set out, the sole and several right of fishing for salmon and all other fish in the said portion of the said river had become vested in, and was part of the possessions of, the Kings and Queens of England as Lords of Ireland

4. By an inquisition held at Asseroe, in the County of Donegal, on the 26th day of November, in the 31st year of the reign of Queen Elizabeth, it was found (inter alia) that all the religious house or monastery of St. Bernard, with lands, tenements, tithes, and obventions, with the appurtenances belonged to Queen Elizabeth by right of her Crown; and that ten weirs for fishing and taking of eels in or on the water called 'le Erne' belonged to the said abbey; and that the abbot and convent had, in right of the abbey aforesaid, liberty for two fishers to take salmon in the water or river called the Erne, which runs from Asseroe, near Ballyshannon, and the second draught of all fish at Asseroe when they begin to fish, and liberty for one boat to fish from the island to the main sea for salmon or other fish; and the jurors said that all the aforesaid belonged to the Queen in right of her Crown.

5. By indenture of lease, dated the 14th day of October, in the first year of his reign, King James the First demised to one John Binglie (inter alia) all that the fishings and taking of fishes of the lakes, stangs, rivers and streams called Loughearne, as well as eels and of all other fishes there being. And also all that the fishing and taking of salmon and herrings, and all other fishes in the ports, creeks, bays, or streams of Ballyshannon, Bondroise, with all other places, bays and ports, havens and creeks next adjoining in which fishes were accustomed to be taken, parcel of the King's Majesty's ancient inheritance, lying and being in the County of Donegal, in the Province of Ulster, to hold the same to the said lessee for 21 years, subject to the rent thereby reserved.

6. By an inquisition held at Lifford, in the County of Donegal, on the 21st day of March, in the eighteenth year of the reign of the said King James the First, it was found (inter alia) that there was a Royal fishing in the sea below Ballyshannon. called the Salmon Leap of Ballyshannon, within the said county, where it doth ebb and flow, and is navigable with ships, barques, lighters, and boats, and that the same was in the possession of Henry, Lord ffolliott, or his assigns; and that the said Lord ffolliott hath taken up the rents and profits thereof for the space of these fifteen years last past.

7. By letters patent under the Great Seal, bearing date the 9th day of April, in the twentieth year of the reign of His Majesty King James the First, and duly enrolled in the Chancery Rolls of Ireland, his said Majesty granted and released unto Henry ffolliott, Knight, Lord ffolliott, Baron of Ballyshannon, his heirs and assigns for ever (inter alia), the entire lately dissolved abbey, monastery or religious house, then lately called the Abbey or House of Monks of the Order of St. Bernard of Ashroe, otherwise Asheroth (being the monastery referred to in paragraph 4 hereof), with all and singular its appurtenances, in the County of Donegal; and also the entire site, circuit, ambit and precinct of the same abbey, monastery or religious house, and all the lands, tenements and hereditaments of the same; and also the lands, territories and tithes therein mentioned; and also certain weirs therein mentioned for taking eels in the River Erne between Lough Erne and the Castle of Ballyshannon, and the entire fishery of the said weirs; and also liberty for two fishermen to fish with loops for taking salmon upon the salmon leap near the Castle of Ballyshannon and between the said castle and the high sea, and liberty for two fishermen on the River Erne for taking salmon, and the second draught of all fish at Asseroe when the season commences, and the fishing of one boat to take salmon or other kinds of fish from the island and salmon leap to the great ocean in or near the bay or pale of Ballyshannon; and also the entire creek, bay or river of Ballyshannon, namely, from the high sea as far as the bank or fall of water commonly called the salmon leap, otherwise the pale of Asheroe, near the Castle of Ballyshannon; and also the aforesaid bank or (saltee salmon) in English the salmon leap, otherwise the pale of Asheroe, with its appurtenances; and also the lakes, weirs, islands and banks in or near the aforesaid creek, bay, and river aforesaid, and the soil and ground and water of the aforesaid creek, bay, lake or river, and all land covered with water there; and also the entire fishing and liberty of fishing to take salmon and all other kinds of fish whatever in or within the aforesaid creek, bay, or river aforesaid, and upon the banks aforesaid; and also the weirs and liberties of fishing and carrying fish therein specified; and also the whole and entire river and water of Erne aforesaid from the high sea as far as Lough Erne and the ground and soil of the same, with the appurtenances, lying and being in the Counties of Donegal and Fermanagh, or either of them, and all the towns and lands thereby granted and henceforth known as the Manor of Ballyshannon.

8. The said Henry, Baron ffolliott, thereupon went into possession of all the said manor or manors, lands, fishings, hereditaments, and premises, and continued in such possession until his death, to wit, in the year 1622.

9. The said River Erne flows from Lough Erne to the sea. The tide ebbs and flows from the falls of Ballyshannon or Asseroe, otherwise Asheroe, to the bar of Ballyshannon or high sea, and the said River Erne is non-tidal from the said falls of Ballyshannon or Asseroe upwards. The falls of Ballyshannon or Asseroe are about three miles from the said bar. The falls of Belleek are about four miles above the falls of Ballyshannon or Asseroe; and Rosscor, where the river flows out of Lough Erne, is about two miles above Belleek. By the said letters patent the several and exclusive fishery for salmon and all other kinds of fish, from the high sea at the bar of Ballyshannon up to Lough Erne, in and throughout the tidal and non-tidal portions of the River Erne, passed to the said Henry, Baron ffolliott, in fee-simple.

10. By letters patent under the Great Seal, bearing date the 30th day of August, in the fifteenth year of the reign of His Majesty King Charles the First, and duly enrolled in the Chancery Rolls in Ireland, the said Manor of Ballyshannon, and all and singular the lands, towns, territories, fishings, hereditaments, and premises granted by the said hereinbefore stated letters patent of King James the First, were confirmed to Thomas, Baron ffolliott, the second Baron ffolliott, and son of the said Henry, Baron ffolliott, in fee-simple.

11. By certain indentures, dated respectively the 30th and 31st days of July, 1718, the 29th and 30th days of December, 1719, and the 29th and 30th days of April, 1720, and by virtue of a certain Act of the Parliament of Ireland, passed in the sixth year of the reign of his late Majesty King George the First, all and singular the said manors, lands, fishings, hereditaments, and premises comprised in and granted by the said letters patent, and of which the said Thomas, Baron ffolliott, was so seized as aforesaid, were assured by the successors in title of the said Thomas, Baron ffolliott, in consideration of the sum of £48,000, to William Connolly, in fee-simple.

12. All the estate and interest of the said William Connolly...