Palmer and Others v Byrne

• Jurisdiction: Ireland
• Judge: Barton, J.
• Judgment Date: 10 March 1906
• Court: Chancery Division (Ireland)
• Docket Number: (1904. No. 1112.)
• Date: 10 March 1906

Palmer And Others

and

Byrne.

Barton, J.

(1904. No. 1112.)

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1906.

Landlord and tenant — Sporting rights — Judicial tenancy — Reservation to landlord of exclusive right of fishing — Natural obstruction thereto — Remedies of landlord as to removal of same.

Held, that the landlord had a right of entry for the purpose of cutting the sallies and bushes, so far as might be necessary for the reasonable exercise of his fishing rights, but so as not to interfere with the stability of the bank.

Held, also, that in the circumstances of the case the landlord was not entitled to a decree having the effect of a mandatory injunction to compel the tenant to cut the sallies and bushes; but that his remedy was to enter and cut them, if the tenant did not do so.

Trial of Action.

By his will, dated 20th April, 1903, part of the lands of Derryclooney and Hymenstown, containing 102a. 0r. 9p., was, inter alia, devised by Alexander Going, late of Altavilla, Cahir, in the county of Tipperary, who was owner in fee thereof, to the plaintiffs as trustees, upon the trusts therein mentioned.

The defendant was the judicial tenant of the said lands under an order of the Irish Land Commission, dated the 10th October, 1893, whereby the rent was fixed at £90. It was certified by this order that the right of fishing and taking fish should belong exclusively to the landlord.

The River Suir flowed over and by part of the said holding in possession of defendant as aforesaid, and the fishing and fishing rights in that part of the river were alleged by plaintiffs to be valuable. At the date of the said order of the Irish Land Commission, certain sallies, shrubs, and thorn-bushes were growing on the portion of the defendant's holding bordering on said river, which had, at the time of action, grown into such a state as to interfere with and obstruct plaintiff's fishing rights.

Before action brought, the plaintiffs, by letters and notices and finally by a notice dated August 13th, 1904, called upon defendant to properly lop these sallies and thorn-bushes, so as to prevent hindrance and obstruction to the said fishing, or to send a written permission to the plaintiffs to enable them to lop them themselves. The defendant did not lop the sallies and thorn-bushes, or give the plaintiffs permission to do so.

The plaintiffs claimed an injunction to restrain the defendant from permitting or allowing these sallies and thorn-bushes to remain in such a condition as to constitute a nuisance and hindrance to their right of fishing; and also an order directing defendant to put and keep the sallies and thorn-bushes in such a condition as not to interfere with or obstruct their right of fishing.

The evidence, so far as material, appears from the judgment Barton, J.

Gordon K.C., and Corvan, for the plaintiffs:—

The tenant must keep the property in such a condition as not to interfere with the landlord's right of fishing; and he cannot interfere with the landlord's enjoyment of his right by allowing these shrubs and bushes to grow...