Moore v Attorney General for the Irish Free State

• Jurisdiction: Ireland
• Judgment Date: 01 January 1935
• Date: 01 January 1935
• Court: Supreme Court (Irish Free State)

Moore v. Attorney-General and Others.

ROBERT LYON MOORE and Others

Plaintiffs

and

THE ATTORNEY-GENERAL FOR SAORSTÁT saorstátÉIREANN éireann,WILLIAM GOAN and Others, Defendants (1)

Supreme Court.

Several fishery - Tidal navigable waters in Donegal - Claim to fishery disputed and public right asserted - Whether fishery "put in defence" prior to legal memory - Historical and legal possibility of fishery having been"put in defence" - The Brehon Laws - Application of Magna Charta to Donegal - Magna Charta, chap. 16—Landed Estates Court conveyance - Construction of conveyance - Parliamentary title - Grant by the Crown of several fishery in tidal waters within legal memory - Whether validated by the "Plantation" statutes - Principle of construction of "Plantation"statutes - Whether fishery within the application of the "Plantation"statutes - 10 Car. 1, c. 3 - 10 Car. 1, sess. 3, c. 2 - 10 Car. 1, sess. 3, c. 3 - 15 Car. 1, c. 6.

The plaintiffs brought an action claiming a declaration that they were 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. The defendants were a number of local fishermen (who, in 1925 for the first time, had challenged the plaintiffs' title) and the Attorney-General of the Irish Free State, who was sued as representing the public and the State.

In their statement of claim the plaintiffs alleged that from the time whereof the memory of man was not to the contrary, the said portion of the river, and the sole and several right of fishing therein, had been put "in defence"; and that, prior to the granting of the Letters Patent get out in the statement of claim, the said right of fishing had been vested in, and was part of the possessions of, the Kings and Queens of England as Lords of Ireland. The statement of claim then set out a large number of documents upon which the plaintiffs based their claim. Among these the plaintiffs relied upon a Landed Estate Court conveyance of 1869 as conferring on them a parliamentary title; and they also relied upon certain statutes of Charles I whereby titles passed under Commissions of Grace, were validated and given statutory authority.

The defendants relied on Chap. 16 of Magna Charta as requiring that a several fishery in tidal waters must have been put "in defence" prior to the death of Henry II, and they contended that such a fishery did not in fact exist and was not historically possible in the locus in quo; they also denied the conclusive effect claimed by the plaintiffs for the Landed Estates Court conveyance; and they also denied that the statutes of Charles I validated the plaintiffs' title.

The plaintiffs proved in evidence that they and their predecessors in title had been in possession of the fishery for over three hundred years.

Held by the Supreme Court (Kennedy C.J., FitzGibbon and Murnaghan JJ.) that that Court had already decided in R. (Moore) v. O'Hanrahan[1927] I. R. 406, that the Landed Estates Court conveyance of 1869 only passed whatever fishing rights were possessed by T. C. (the owner and petitioner in the Landed Estates Court) leaving all questions as to the extent and quality of such rights undetermined, and therefore that conveyance wag not conclusive as to the plaintiffs' title, and to that view Kennedy C.J. and Murnaghan J. still adhered; FitzGibbon J. holding himself bound by that decision.

Held also, that, upon the evidence, no several fishery in tidal waters existed in Donegal prior to the death of Henry II. English law had not then been extended to Donegal, and the Brehon law which was in force there did not incorporate the feudal notion of the private ownership of fishing in tidal waters. Accordingly the fishery had not been put "in defence" prior to the death of Henry II.

FitzGibbon J. refrained from deciding whether Magna Charta was in force in Donegal before 1612, or whether James I or Queen Elizabeth would not have had power to create a new several fishery in tidal navigable waters in Donegal after that territory had been acquired by conquest and before a Proclamation, Order in Council, or statute had been made extending the laws of England, including Magna Charta, to Donegal, or whether the principles declared in Attorney-General for British Columbia v. Attorney-General for Canada, [1914] A. C. 153, as applicable to newly settled colonies,

would have any application to dominions newly acquired by conquest, as was the case with Donegal at the beginning of the seventeenth century.

Held further (Kennedy C.J. and Murnaghan J.; FitzGibbon J. dissenting), that neither of the statutes relied on by the plaintiffs, 10 Car. 1, sess, 3, c. 3, or 15 Car. 1, c. 6, gave to the Letters Patent of 1639 (granted by Charles I to one of the plaintiffs' predecessors in title) any statutory authority to override the provisions of Magna Charta in respect of the fishery, and that grant did not therefore, bind the public.

Held accordingly (Kennedy C.J. and Murnaghan J.; FitzGibbon J. dissenting), that the action should be dismissed.

Malcomson v. O'Dea, 10 H. L. C. 593, and Neill v. Duke of Devonshire,8 App. Cas. 135, applied.

Decision of Johnston J. (reported [1929] I. R. 191) reversed.

Appeal from the judgment and order of Johnston J. (reported [1929] I. R. 191) declaring, inter alia, the plaintiffs to be entitled to and possessed of a several fishery for salmon and all other kinds of fish 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 the bed and soil underlying the said waters. The said order also granted the plaintiffs a perpetual injunction restraining the defendants (other than the Attorney-General) from trespassing upon the said several fishery and from fishing therein or taking fish thereout, and it ordered the defendants to pay the plaintiffs their costs of the action, such costs not to be levied against the Attorney-General in his personal capacity.

The notice of appeal by the defendants other than the Attorney-General applied for an order that the entire of the judgment of Johnston J. be reversed and that in lieu thereof it be ordered that the action be dismissed, on the grounds that the judgment and order were erroneous in law and erroneous in fact, and that the findings and judgment of Johnston J. were bad in law, and that the said findings were against the evidence and the weight of evidence, and that the trial Judge misdirected himself both in law and on the facts in finding that the plaintiffs were entitled to the relief claimed in the action or any part thereof.

The Attorney-General at first served notice of appeal limited only to the incidence of the costs of the action. This notice applied for an order setting aside that portion of the order in the action which directed that the defendants pay to the plaintiffs their costs of the action when taxed and ascertained in so far as it imposed any liability on the defendant, the Attorney-General, to pay such costs, and for an order declaring that the Attorney-General was not liable to pay any part of the plaintiffs' costs of the action.

Upon the hearing of a preliminary objection by the plaintiffs to the competency of the appeal by the defendants other than the Attorney-General, it was held by the Supreme Court that the appeal of the defendants other than the Attorney-General was competent only to the extent of the special relief granted against them, viz. the injunctions, etc., and that an appeal against the declaratory part of the order lay solely within the competence of the Attorney-General. This decision is reported ([1930] I. R. 471). Subsequently to that decision, the Attorney-General applied for and obtained an extension of time for the purpose of serving notice of appeal against so much of the order of Johnston J. as was not the subject of his pending appeal (reported [1930] I. R. 560).

This (second) notice of appeal by the Attorney-General applied for an order that the whole of the order of Johnston J. (not the subject of his (the Attorney-General's) pending appeal) be reversed and that the action be dismissed.

Cur. adv. vult.

Kennedy C.J. :—

What I am about to read, represents the joint opinion of Mr. Justice Murnaghan and myself on all the questions for decision by the Court. I am reading it for both; but I wish to acknowledge that the great labour of putting it together has been his.

The appeal in this action has been brought by the Attorney-General against the judgment of Mr. Justice Johnston, whereby he declared that the plaintiffs were entitled to a several fishery for salmon and all other kinds of fish in the entire tidal portion of the River Erne in the County of Donegal from the falls of Assaroe at Ballyshannon to the high seas or bar of Ballyshannon, and whereby the Court ordered that the plaintiffs be quieted in the possession of the said several fishery, and granted a perpetual injunction against the special defendants and all other persons from trespassing upon the said several fishery, or interfering with the plaintiffs in the exclusive use and enjoyment of the said several fishery.

The nature of the case has required that a great mass of documentary evidence should be tendered and oral evidence of considerable volume has been brought forward upon the historical questions involved, while the legal arguments have extended over a wide range. The points involved may, however, be dealt with under three heads. In the first place the plaintiffs claim a parliamentary title to the several fishery under a Landed Estates Court Conveyance. Failing this, they seek to make title to a several fishery according to the rules of common law as laid down in Magna Charta. In addition, they rely upon various statutes of Charles I whereby titles, passed under Commissions of Grace, were validated and given statutory authority.

By a Landed Estates...