R (Moore) v O'Hanrahan

• Jurisdiction: Ireland
• Court: Supreme Court (Irish Free State)
• Judgment Date: 28 Feb 1927

Supreme Court.

R. (Moore) v. O'Hanrahan

THE KING (at the prosecution of ROBERT LYON MOORE)

and

JOHN O'HANRAHAN, District Justice of the Ballyshannon District Court (1)

Several fishery - Tidal and navigable waters - Disputed claim - Jurisdiction of District Justice - Whether ousted - "Bona fide claim of title" - Evidence necessary to establish - Landed Estates Court conveyance - Conclusive effect of - Magna Chart - Its application in Ireland - Right of Crown to grant a several fishery in tidal waters - Mandamus -"Poynings' Law" (10 Hen. 7, c. 22) - Landed Estates Court Act,1858 (21 & 22 Vict. c. 72), sects. 1, 61, 85 - Courts of Justice Act, 1924 (No. 10 of 1924), sects. 77, 78.

Appeal from all order of the High Court, dated the 16th March, 1926, making absolute a conditional rule in the nature of mandamus, directed to the District Justice of the Ballyshannon District Court, commanding him to enter continuances upon and to hear and determine, as to law and justice should appertain, six summonses or complaints.

The complainants in these summonses were: Frederick Ritter, James Maxwell, Lieut.-Colonel F. Macrory and William L. Staunton, trustees of the marriage settlement, dated 26th April, 1887, of Elizabeth Smith Ritter; Anthony B. Babington K.C., Robert Alexander Patterson, trustees of the will of Mary Elizabeth Moore Lyon Moore, deceased; Sir Emerson Crawford Herdman and William Maxwell Scott Moore, trustees of the marriage settlement of Mrs. Violet Halford Moore; Robert Lyon Moore, Mary Elizabeth Henrietta Moore, Violet Halford Patience Moore, William Maxwell Scott Moore, and Elizabeth Jane Smith Ritter. The defendants were: William Goan, Michael Mulhartagh, Hugh Gavigan, John Cleary, William Phillips, and William Morrow. The complainants carried on a fishery business in the River Erne, under the style of the Erne Fishery Company. The defendants were a number of fishermen of Ballyshannon, in the County of Donegal. The form of complaint in three of the summonses was that the defendants "on Wednesday, the 3rd of June, 1925, at 'Robert's Hole,' in the townland of Ballymacward, in the Barony of Tyrhugh, County of Donegal, within the jurisdiction of Ballyshannon District Court, did enter into and upon the several fishery of the complainants in the said townland in the River Erne for the purpose of, or under pretence of, killing fish or taking fish therefrom, not being authorised by the said complainants, the owners and occupiers of the said several fishery, contrary to 11 & 12 Vict. c. 92, s. 41." In the other three the complaint was that the defendants "did enter into and upon the several fishery of the complainants in the River Erne, in the said townland, for the purpose of, or under pretence of, Killing fish or taking fish therefrom: to wit, salmon, with a net, not being authorised by the said complainants, the owners and occupiers of the said several fishery, contrary to" the said statute. These six summonses were heard before the District Justice at Ballyshannon, and the solicitor for the defendants raised the objection that a question of title was involved, whereupon, having heard the evidence and the arguments, the District Justice made an order in the case of each of the six summonses:"No jurisdiction; question of title involved."

Subsequently, on the 11th December, 1925, Robert Lyon Moore, one of the complainants, applied to the High Court and obtained the conditional rule in the nature of a mandamus,directed to the District Justice, already referred to, and on the 19th February, 1926, he applied to the High Court to make this conditional rule absolute. In support of the application to make the conditional rule absolute, affidavits by the prosecutor and by his solicitor, Mr. Ralph Hall Reid, were relied on; and a joint affidavit made by the respondents and one made by their solicitor, Mr. Francis Gallagher, also one made by a Mr. James Hamilton Delargy, were relied on by the respondents. The material facts in these affidavits, stating what occurred at the hearing before the Justice of the District Court, are fully stated in the judgment of the Chief Justice, and in his judgment are also stated the material portions of the Landed Estates Court conveyance, dated 11th March, 1869, upon which the complainants in the summonses had based their case at the hearing before the Justice, they being the successors in title of the original grantees under that conveyance. The material portion of the affidavit of Mr. James Hamilton Delargy, of University College, Dublin, Assistant Lecturer in Modern Irish Language and Literature, was as follows:—"As a result of investigation, I say that under Irish law, proprietary fishing rights either in rivers or tidal waters did not belong to any individual or corporate body to the exclusion of the local inhabitants, except in the case of weirs and artificial pools constructed for the benefit of particular owners. In the district comprising the tidal waters of the River Erne, fishing rights were regulated by Irish law at least up to the middle of the sixteenth century. There is distinct documentary evidence proving that the Abbey of Eas Ruaidh (Assaroe) possessed only a limited right to a portion of the fishing in these waters, and not a right to the exclusion of the inhabitants."

On the 16th March, 1926, the High Court (Sullivan P., Hanna and O'Byrne JJ.) made the conditional rule absolute, as already stated (1). From that judgment the defendants appealed to the Supreme Court.

Summonses were issued against several fishermen for having entered into and upon the several fishery of the complainants in the River Erne for the purpose of, or under pretence of, killing fish or taking fish therefrom, not being authorised by the said complainants, the owners and occupiers of the said several fishery, contrary to 11 & 12 Vict. c. 92, sect. 41. The complainants were a number of persons who carried on a fishery business in the River Erne. The defendants had previously given notice to the complainants that they would enter and fish the River Erne at a certain place and time, and they had done so. At the hearing before the District Justice the complainants relied on a Landed Estates Court conveyance, dated 11th March, 1869, under which they claimed to be owners of, and to have an absolute right in, a several fishery at the place where the alleged offence was committed. They contended that this conveyance, on the face of it, conferred a several fishery on the grantees, and that on the production of that conveyance, owing to its statutory effect, there could be no question in law of any right in any member of the public to fish at the place in question. It was admitted that the waters there were tidal. The defendants contended that the conveyance did not on its face confer a several fishery on the grantees, and that, even if it did, they were entitled to show that no several fishery existed there prior to Magna Charta, and that, as none had been created by legislation since, the complainants' claim to a several fishery was unsustainable. The District Justice having heard the summonses, made an order in each case: "No jurisdiction; question of title involved."

One of the complainants obtained a conditional rule for mandamusdirected to the District Justice to enter continuances upon and to hear and determine the summons, and this conditional rule was made absolute by the High Court on the ground that the Landed Estates Court conveyance conferred a several fishery on the grantees; that on the production of that conveyance the Justice should have been satisfied that no public right of fishing in the particular place could exist; and, as no such right could exist, the defendants in claiming to fish there as members of the public were not raising a bona fide question of title, which would oust his jurisdiction.

Held by the Supreme Court (Kennedy C.J. and Murnaghan J.; FitzGibbon J. dissenting), reversing the High Court, that the conditional rule for mandamus must be discharged, as a bona fide question of title had been raised, which ousted the jurisdiction of the Justice.

Per Kennedy C.J.: Because the complainants had not, by the mere production of the Landed Estates Court conveyance, established a right to a several fishery. They had only established their right to the estate of T.C. (the owner and petitioner in the Landed Estates Court), whatever that may have been, and they had still to establish the extent and quality of that estate by proper evidence in competent proceedings, and that was not an inquiry

which could be prosecuted before the District Justice, and, therefore, a bona fide question of title was raised which ousted the Jurisdiction of the District Court.

Per Murnaghan J.: Because the Landed Estates Court granted the several fishery rights so far as these had valid legal existence, and the purchasers were well aware that they had obtained a title not guaranteed under the full force of an incontestable conveyance, but one which could only be founded upon the validity of the title previously enjoyed. The District Justice was, on the facts placed before him, and in this view of the legal effect of the Landed Estates Court conveyance, entitled to find that a question of title was involved.

Reg. v. CridlandENR, 7 E. & B. 853; Reg. v. StimpsonENR, 4 B. & S. 301;Cornwall v. Sanders,ENR 3 B. & S. 206; and Hudson v. M'Rae, 33 L.J. (M.C.) 65, applied.

In re Tottenham's Estate, I.R. 3 Eq. 528; Rorke v. Errington, 7 H.L. Cas. 617; Gore v. M'DermottUNKIR, I.R. 1 C.L. 348; In re Acheson's Estate,I.R. 3 Eq. 105, considered.

The jurisdiction of a Justice of the District Court discussed.

The extent of the application of Magna Charta in Ireland considered by Kennedy C.J.

Cur. adv. vult.

Hanna and O'Byrne JJ. concurred.

Kennedy C.J.:—

This is an appeal from an order of the High Court (Sullivan P. and Hanna and O'Byrne JJ.), made on the 16th March, 1926...