O'Neill v Allen

• Jurisdiction: Ireland
• Judgment Date: 31 January 1859
• Date: 31 January 1859
• Court: Exchequer (Ireland)

Exchequer.

Before PIGOT, C. B., and RICHARDS and GREENE, BB.

O'NEILL

and

ALLEN.

The Duke of Devonshire v. Hodnett 1 Hud. & B. 322.

Devit v. The College of DublinENR Gilb. Rep. 241.

Ashworth v. Brown 7 Ir. Jur. 315.

Rogers v. AllenENR 1 Camp. 309.

Chad. V. Tilsed 2 Bro. & B. 403.

Clarkson v. WoodhouseENR 3 Doug. 189.

The Bann Fishery case Dav. Rep. 55 b.

Carter v. MurcotENR 4 Burr. 2164.

Bagott v. OrrUNK 2 B. & P. 472.

Mayor of Orford v. RichardsonENRENR 4 T. R. 437; S. C., 2 H. Bl. 182.

Vivian v. BlakeENR 11 East, 263.

Ashworth v. Brown 7 Ir. Jur. 315.

132 COMMON LAW REPORTS. M. T. 1858. with both parts of the divided road. This view, however, was not Exchequer. presented, either at the trial nor during the argument ; nor could it MANN have availed the defendants, as no such auxiliary works were made. v. s. & w. I pronounce no opinion upon it. RAILWAY. I ought to have said, that the view which I take of the statute rights of the plaintiff, as to the road, appears to me sustained by the principle of the judgments in Attorney General v. Great Northern Railway Company (a) ; Watkins v. Great Northern Railway Company (0; Regina v. Scott (c), and Attorney-General v. Great ' Southern and Western Railway Company (d). In my opinion, the verdict, as to the level crossing at No. 37, ought to stand ; but as my Brethren think differently, the verdict, as to the issues relating to that subject, must be entered for the defendÂÂants. As to the penalties, a verdict, according to our unanimous opinion, must be entered for the plaintiff, pursuant to the leave reserved. (a) 4 De G. & Sm. 75. (b) 16 C. B. 961. (c) 3 Rail. Cas. 187. (d) 3 De G. & Sm. 439. H. T. 1859. Jan. 21, 22, O'NEILL v. ALLEN.* 24, 31. The plaintiff, TRESPASS to a several fishery. The summons and plaint complained in support of a claim to a se- that " The defendant broke and entered the fishery of the plaintiff, veral fishery in the open sea, proved an adventurer's certificate of the year 1666, finding R. entitled to " a salmon fishery," and the lands of C. Acts of ownership over the fishery, by A and his grantees (between whom and R. no connection was shown), were proved, from 1668 to 1701. No such act was proved from that date to 1798; but from 1798 to 1857, there was proof of undisturbed user by the family of O'N., from whom the plaintiff derived. Title in the family of O'N., under A, to the lands of C., was deÂÂduced from 1741 to 1857.-Held, that a several fishery in the plaintiff was rightly found, and that the granting of a patent to R., subsequently to 1666, might have been presumed, but that the 17 & 18 Car. 2, c. '2, ,i3dered such presumption unnecessary. Qucere.-Whether a several fishery is such a franchise as can be lost by non-user? But if it were, the absence of evidence of user from 1701 to 1799 did not amount to proof of non-user. Seeable.-The construction of the saving clause in the 5 & 6 Vic., c. 106, 8. 22, for the rights of " the proprietor of a several fishery within the limits thereof," is " the proprietor of a several fishery within the limits of such several fishery." * Before Proor, C. B., and RICHARDS and GREENE, BB. COMMON LAW REPORTS. 133 " upon that part of the sea-Coast of Ballyreagh, lying within one "statute mile eastward of the river Bann, as defined and deterÂÂ" mined by the statutable enactments in that behalf, said fishery "being a several fishery, within the intent and meaning of the "statutable enactments in that behalf," &c. The defence traversed the title of the plaintiff to a several fishÂÂery, as alleged in the summons and plaint ; and the issue to be tried was, " Whether the plaintiff, or those under whom he claims, ,was " or were, on the 19th day of June 1857, or at any time since, " entitled, to a several fishery, within the meaning of the ,statutable "enactments in that behalf, in or upon that part of the strand or " sea-coast of Crossreagh, lying within one statute mile eastward " from the mouth of the river Bann, as defined and determined by " the statutable enactments in that behalf ?" At the trial, before PENNEFA THEN, B., at the Summer Assizes of 1858, for the oounty of Londonderry, no evidence was given for -the defendant; but the plaintiff, in support of his alleged title, read in evidence the following documents, which were produced from the proper custody by Samuel Wright Knox, the plaintiff's attorney, who was also the law and land agent of the owners of the Flower Hill estate, to which the alleged several fishery was appurtenant. An adventurer's certificate, of the 13th of July 1666, granted by Commissioners, under the Act of Explanation, 17 & 18 Car. 2, c. 2, adjudging Hugh Rowley rightfully entitled to " the lands of "Crossreagh, containing 109 acres, and a salmon fishery, lying and " being in the parish of Ballyaghran." An extract from the Down Survey, showing a denomination of Crossreagh, containing fos acres, in the parish of Ballyaghran (as in the certificate), situate where a promontory called " Sandy-hills and Rushee," comprising 102a. Ir., extended westward to the mouth of the river Bann. A lease of the 29th of December 1668, from the Marquis of Antrim to Archibald Stewart, of " the salmon fishing " upon the strand betwixt Ballyreagh and the mouth of the river " Bann," for sixty-one years. An indorsement of the 23rd of April 1670, by which Archibald Stewart assigned his interest to Uriah Babington. A deed of the 134 COMMON LAW REPORTS. 17th of October 1694, by which Henry Babington and another, administrators of Uriah Babington, assigned the fishing to' Robert M'Neale. This deed recited a covenant by the Marquis of Antrim, to do all acts " for estating" to Uriah Babington the " said salmon fishing during the term of ninety-nine years." An indorsement thereon, dated the 12th of December 1701, by which Robert M'Neale7assigned his interest to Archibald M'Neale. The following deeds related to the title to the lands of Crossreagh, mentioned in the certificate : A fee-farm grant, dated the 18th of June 1741, from the Marquis of Antrim to Felix O'Neill, of, amongst others, the " quarter-lands of Crossreagh," at the yearly rent of 37. 17s. Od., and reserving the fishings and other royalties. A deed of the 21st of May 1747, made by Felix O'Neill in favour of his son Mark Ker O'Neill. Probate of the will of Mark Ker O'Neill, dated the 28th of December 1779, by which he devised all his lands to his son Felix O'Neill for life, remainder to his first and other sons in tail, remainder to his younger sons Mark Ker O'Neill and another, upon like limitations, remainÂÂder to his daughters Esther, Elizabeth and Mary, for their lives, with remainder to the heirs of their respective bodies. A lease of the 1 1 th of January 1806, from Mark Ker O'Neill the younger to Sir George Fitzgerald Hill, in pursuance of a power contained in this will, of the strand fishery, for three lives or thirty-one years, at the yearly rent of 21. A deed of the 20th of December 1827, by which Thomas Ellis, Master in Chancery, conveyed to Robert M'Naghten all the reservations and royalties of the Antrim family, including those reserved by the grant of the 18th of June 1741. A deed of the 31st of July 1829, by which Robert M'Naghten conveyed to Hesther M'Manus, Elizabeth Godfrey and Mary O'Hara the royalties reserved by the fee-farm grant of the 18th of June 1741. An assignment, dated the 21st of April 1841, by Sir George Fitzgerald Hill to Henry O'Hara, the husband of Mary O'Hara, of the strand fishery. Probate of the will of Henry O'Hara, dated the 27th of February 1842, by which he devised all his estates, fisheries, &c., after the death of his wife, to his son Alexander COMMON LAW REPORTS. 135 v. A deed of the 22nd of August 1851, by which, reciting that ALLEN. Henry O'Hara had become entitled to a moiety of the royalties conveyed by M'Naghten, and reciting the will of Henry O'Hara, and the death of Alexander O'Hara in his father's lifetime, the Rev. Robert Wilson Rowan assigned to William Wilson Campbell, the lessor of the plaintiff, his moiety of the lands and fisheries deÂÂvised by the will of Henry O'Hara, and a deed of the 19th of March 1855, by which Robert Shouldham assigned to the same William Wilson Campbell his moiety of the lands and royalties devised by Henry O'Hara's will. Title under Campbell, and those claiming under Mrs. M'Manus, was admittedly shown in the plaintiff. The following evidence of user of the alleged several fishery was then given. Samuel Wright Knox proved the receipt of rent under the lease of 1806, from 1819 to 1831 ; that, he saw a net of Mr. O'Hara's in his lifetime ; and that he never saw or heard of any other person fishing except M'Naghten. John Brown, the next witness, proved that he fished for Mr. O'Hara in 1828 and 1829, and until he died. That another party fished, who said they were the M'Naghtens; that they only fished one season ; that Henry O'Neill and his father fished since O'Hara's death, and no one else. On cross-examination, he stated that he saw other people fishing, that same season, besides M'Naghten ; and upon being re-examined on this point, he stated those people said they were the lessees, of the Bann fishery. John O'Neill, the plaintiff's brother, then proved the fishing during the life of O'Hara. Robert O'Neill was then examined, and he stated that he was seventy-five years old; that he knew Mr. O'Hara to fish upon the strand, and Felix O'Neill (eldest son of Mark Ker O'Neill), before him; that he fished with a capstan, which he used to remove every 12th of August ; that Felix O'Neill died two years after the re-i bellion (1800); that Felix was never disturbed. In O'Hara's time, 136 COMMON LAW REPORTS: IL T. 1859. no one fished but one year, when M'Naghten's people fished. Mri Exchequer. Little sent a crew and set a net between him and the Bann. Mr. O'Hara fished that year, and was never disturbed. He died in 1841. The plaintiff then closed his case. A...