R (Coghlan) v Inspectors of Irish Fisheries

JurisdictionIreland
Judgment Date11 May 1894
Date11 May 1894
CourtCourt of Appeal (Ireland)
Reg. (Coghlan)
and
Inspectors of Irish Fisheries (1).

Q. B. Div.

Appeal.

CASES

DETERMINED BY

THE QUEEN'S BENCH AND EXCHEQUER DIVISIONS

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1896.

Salmon Fisheries (Ireland) Acts — Fixed net condemned by Commissioners as illegal — Injury to navigation—“Legally erected” — New inquiry — Mandamus, 26 & 27 Vict. c. 114, s. 40 — Application to re-enter appeal.

In 1863, on an inquiry before the Fishery Commissioners as to the legality of a fixed net at D. in the county of Waterford, the Commissioners held that the fixed net was illegal on the ground that title was not shown, and also on the ground that the net was injurious to navigation. In 1864, upon appeal by way of special case stated for the Queen's Bench, an order was made affirming the order of the Commissioners, so far as same decided that the fixed net was injurious to navigation and should therefore be abated, the Court not deciding the question of title raised.

In 1893, C. (who was a minor at the date of the proceedings in 1863 and 1864), alleging that the injury to navigation had ceased, applied to the Inspectors of Irish Fisheries to hold an inquiry as to whether the weir was now injurious to navigation. An inquiry was held, and the Inspectors reported that the weir, if erected at D., would not now be injurious to navigation, but declined to issue a certificate under the Salmon Fisheries Act, 1863, as the question of title raised by the special case had been left undisposed of by the Court of Queen's Bench. C. then applied to the Queen's Bench Division for an order for a writ of mandamus directed to the Inspectors to hold an inquiry into his title to use a fixed net at D., or for an order commanding them to issue a certificate under the Salmon Fisheries Act, 1863, authorising him to erect a fixed net, or for an order that the appeal by way of special case stated might be reinstated for hearing as not finally disposed of:—

Held, by the Queen's Bench Division and the Court of Appeal, that the application should be refused; that, the appeal having been finally disposed of by the Queen's Bench in 1864, all jurisdiction of the Court in regard thereto was spent; that the fixed net had been finally and conclusively condemned in 1864 as injurious to navigation, and was not “legally erected in the open season of 1862”; and that no new inquiry was open.

Moore-Smyth v. Devonshire (Fishery Cases, June 17, 1871) and Reg. (Reeves) v. Inspectors of Irish Fisheries (20 L. R. Ir. 155) disapproved of.

Quœre: Having regard to the provision of sect. 40 of the Salmon Fisheries (Ireland) Act, 1863, does mandamus lie to compel the Inspectors of Irish Fisheries to grant a certificate under that Act?

Mandamus. Motion on behalf of James Duff Coghlan for a conditional order for a writ of mandamus directed to the Inspectors of Irish Fisheries, commanding them to hold an inquiry into his right and title to erect and use a fixed net for catching salmon or trout on the site of the fixed net commonly called a Scotch weir which formerly was erected in Waterford Harbour on the shore of Dromina in the county of Waterford, it having been found by the said Inspectors that the said weir would not be injurious to navigation, or for an order commanding them to issue a certificate under the provisions of the Salmon Fisheries (Ireland) Act, 1863, authorising said J. D. Coghlan to re-erect and use said fixed net or Scotch weir, or for an order that the appeal by way of Special Case stated for the Court of Queen's Bench in Ireland by the special Commissioners for Irish Fisheries, dated the 8th December, 1863, might be reinstated and relisted for hearing, same not having been finally disposed of by the order of the Court of Queen's Bench dated the 16th November, 1864.

Mr. Coghlan became possessed of the weir at Dromina, under the will of his grandfather, John Coghlan, in 1854; but being at that date a minor, his mother, Mrs. Coghlan, entered into possession of and worked and managed the weir from 1854 to 1863.

On the 9th October, 1863, the Fishery Commissioners summoned Mrs. Coghlan to attend an inquiry before them touching the legality or illegality of the said fixed net; and, this inquiry being held at Waterford on the 24th October, 1863, they decided that the said fixed net was illegal upon the ground that no title was shown under either the 18th or 19th sections of 5 & 6 Vict. c. 106; and also on the ground that the said fixed net was injurious to navigation.

From this decision an appeal was subsequently taken to the Court of Queen's Bench by Mrs. Coghlan, by way of Special Case stated by the Commissioners, who gave as the reasons for their decision that a common and much used course of smacks, yawls, and hobblers in navigating was from Passage to and beyond Credon Head at the extremity of the bay of Woodstown, and that lighters were in the custom of navigating that part of the estuary on their way from Waterford to Woodstown for the purpose of collecting sand and gravel, and that the position of the weir rendered the navigation inconvenient and dangerous to such boats. It does not appear that it was alleged that the weir was an impediment to the navigation of larger vessels.

The case came on for hearing before the Queen's Bench on the 22nd February, 1864, when an order was made affirming the order of the Commissioners, so far as it decided that the fixed net was injurious to navigation; and the matter was referred back to the Commissioners to report whether in their judgment a partial abatement or alteration of the fixed net would be sufficient to remove the injury. On the 10th August, 1864, the Commissioners made a report declaring that a partial abatement or alteration of the weir would not be sufficient to remove the injury, and accordingly on the 16th November, 1864, the Queen's Bench made an order confirming the order of the Commissioners, so far as it decided that the net was injurious to navigation. The Court did not decide the question of title which had been raised. Since the date of the order the weir had not been erected or fished.

The traffic of boats of the character mentioned in the Special Case having ceased in the estuary where the fixed net was situate, Mr. Coghlan applied to the Inspectors by memorial to hold an inquiry for the purpose of receiving evidence upon the question whether the weir if re-erected would be an injury to navigation. On the 3rd August, 1892, the Inspectors informed Mr. Coghlan that as a decision of the Queen's Bench had been pronounced with regard to the weir, they considered that, if the case were to be reopened, he should apply to the Queen's Bench for an order to that effect. Mr. Coghlan accordingly applied ex parte to the Queen's Bench Division for a conditional order for a writ of mandamus; and on the 29th November, 1892, an order was made suggesting that further application should be made to the Inspectors, with leave to apply to the Court anew, the Court expressing no opinion on the case.

Subsequently to the date of this order, the Inspectors of Irish Fisheries, on the application of Mr. Coghlan, held an inquiry at Waterford into the legality of the weir in so far as the same depended upon its being or not being injurious to navigation; and by their report, dated the 11th May, 1893, the Inspectors found that the weir if now erected at Dromina would not be injurious to navigation. At the conclusion of the inquiry the Inspectors intimated to Mr. Coghlan's counsel that, even if they should find that the weir was not now injurious to navigation, they would be unable to issue a certificate to him under the provisions of the Salmon Fisheries Act, 1863, inasmuch as the question of title raised by the Special Case had not been disposed of by the orders of the Court of Queen's Bench on the 22nd February, 1864, and 16th November, 1864.

On the 13th June, 1893, an application was made ex parte to the Queen's Bench Division that the appeal by way of. Special Case should be reinstated for hearing, but the Court declined to make the order on an ex parte application. An application was then made to the Inspectors to hold an inquiry into Mr. Coghlan's title to the weir, but after some correspondence the Inspectors declined to hold such an inquiry without an order from the superior Court.

The present application was accordingly instituted upon notice given by direction of the Court to the representatives of the parties to the appeal by way of Special Case in 1864.

Cur. adv. vult.

The Right Hon. J. Atkinson, Q.C., George Wright, Q.C., and Cherry, appeared for the applicant.

Seymour Bushe, Q.C., and Feely, for the owner of a fishery adjoining the Dromina weir, opposed the application (1).

C. Mac Dermot, for the Inspectors.

Harrison, J.:—

In this case a motion has been made for a conditional order for a writ of mandamus, directed to the Inspectors of Irish Fisheries, commanding them to hold an inquiry into the right and title of James Duff Coghlan to erect and use a fixed net for catching

salmon or trout on the site of the fixed net, commonly called a Scotch weir, which formerly was erected in Waterford Harbour at a place named, it having been found by said Inspectors that said weir would not be injurious to navigation, or for an order commanding them to issue a certificate under the provisions of the Salmon Fisheries (Ireland) Act, 1863, authorising said James Duff Coghlan to re-erect and use said fixed net or Scotch weir; or for an order that the appeal by way of Special Case stated for the Court of Queen's Bench in Ireland by the special Commissioners for Irish Fisheries, dated the 8th December, 1863, may be reinstated and relisted for hearing, same not having been finally disposed of by the order of the Court of Queen's Bench, dated the 16th November, 1864.

In the year 1863 an...

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