Tennent v Clancy

• Jurisdiction: Ireland
• Judge: Mr. Justice Costello
• Judgment Date: 01 January 1988
• Neutral Citation: 1986 WJSC-HC 1869
• Docket Number: [1985 No. 8532P]
• Court: High Court
• Date: 01 January 1988

TENNENT v. CLANCY

BETWEEN:

JOHN HOWARD TENNENT, JAMES NORMAN TENNENT, AND CARROLLINDUSTRIES PLC.

PLAINTIFFS

AND

JAMES CLANCY

DEFENDANT

1986 WJSC-HC 1869

1985 No. 8532P

THE HIGH COURT

Synopsis:

FISHERIES

Sporting rights

Landowner's rights - Incorporeal rights - Lake and river - Plaintiff was owner of bed of lake and river - Defendant was owner of plot of ground at lakeside - Invitees of defendant canoed on lake and river - Held that defendant was responsible for substantial interference with plaintiff's fishing rights - Held that plaintiff was entitled to an order restraining the defendant and his invitees from canoeing on lake and river - ~See~ Real Property, sporting rights - (1985/8532 P - Costello J. - 11/11/86) - [1987] IR 15 [1988] ILRM 214

|Tennent v. Clancy|

REAL PROPERTY

Sporting rights

Ownership - Fishing rights - Lake and river - Best white-trout fisheries in Connemara - Plaintiff claimed ownership of bed of Lough Inagh and of adjoining river - Defendant was the owner of a plot of ground at the lakeside - Defendant used his premises as the headquarters of school children who were invited by him to his premises in groups of fifty children for the purpose of mountaineering in the vicinity and canoeing on the lake and river - The plaintiff claimed that the activities of the defendant and his invitees interfered with the plaintiff's fishing rights - On the assumption that the plaintiff was entitled to an incorporeal fishing right only, it was held that the defendant's ownership of his lakeside premises did not entitle him to interfere with the plaintiff's incorporeal hereditament - Held that the activities of the defendant and his invitees had seriously interfered with the assumed fishing rights of the plaintiff - Held that, as part of the plaintiff's claim was based on trespass, it was necessary to determine the issue of the title to the bed of the lake and river - Held that the plaintiff had proved his title to the bed of the lake and river and that his fishing rights were conferred by his ownership of the lake and river and were not an incorporeal hereditament - Held that the plaintiff was entitled to an order restraining the defendant and his invitees from canoeing on the plaintiff's waters - (1985/8532 P - Costello J. - 11/11/86) - [1987] IR 15 [1988] ILRM 214

|Tennent v. Clancy|

Citations:

FITZGERALD V FIRBANK 1897 2 CH 96

HOLFORD V BAILEY 13 QB 426

RAWSON V PETERS 116 SJ 886

WILLS TRUSTEES V CAIRNGORM CANOEING & SAILING SCHOOL LTD 1976 SC 30

1 Judgment of Mr. Justice Costellodelivered the 11th day of November, 1986. Mary P. O'Donoghue Registrar

2 Interference with plaintiffs" fishing rights by canoeing from an Outdoor Education Centre. Ownership of bed and soil of disputed lakes and river. Whether plaintiffs entitled to a profit-a-prendre or to rights attached to the soil. Form of injunction.

3 The first and second named Plaintiffs own fishing rights in two lakes, Lough Inagh and Derryclare Lough, and in a short river which joins them, which are situated in a remote part of Connemara on the road from Recess to Letterfrack. Salmon are caught in the lakes and river, but they are renowned as one as the best white trout fisheries in the west of Ireland. The plaintiffs claim that the defendant has interfered with these rights in a number of ways, but most particularly by permitting canoeing to take place on the lakes and river from an Outdoor Education Centre he runs in the area. After these proceedings were instituted the first and second named plaintiffs agreed to sell their rights and their purchaser has been joined as a third plaintiff in the action. The principal issue of fact in the case is the effect on the fishing in the lakes and rivers of the defendant's activities. The defendant admits that the plaintiffs enjoy fishery rights, but issues arise as to both the nature of their rights and as to whether they have been infringed. In that connection, the defendant submits that the fishery rights in the area have been severed from the soil and that the plaintiffs"right is a right to an incorporeal herediatment in the nature of a profit-a-prendre. The defendant has two holdings, one at the southern end of Lough Inagh and on its eastern bank, and one on the northern end of Derryclare Lough and also on its eastern bank and both holdings extend somewhat into the river which joins the two lakes. As riparian owner he claims to own the bed and soil of the portion of the lakes and river contiguous to his holdings and submits that his activities merely consitute a reasonable- user of his rights as riparian owner and are not actionable. The plaintiffs,however, say that they own the bed and soil of the two lakes and the river and so their fishing rights are in the nature of corporeal hereditaments being attached to the soil. The relevance of this issue is two-fold. Firstly, if the Plaintiffs are right the defendant's rights as riparian owner are extremely limited and no question of any right to boat on the disputed waters can arise. Secondly, as fee simple owners they may require all canoeing by the defendant to stop and not merely the trespass which occurs as a result of the alleged interference with their fishing rights during the months during which angling for trout and salmon is permitted by law.

4 I will deal firstly with the question of fact relating to the defendant's activities.

5 The defendant purchased the lands on the southern shore of Lough Inagh in 1979 which at that time had the benefit of an outline planning permission for the erection on them of a private dwelling house. He submitted plans to the Galway County Council for the erection of a dwelling house but did not reveal his intention to use the premises for what he has called an Outdoor Education Centre. Having built the premises he established the Centre opening it in the year 1980. Recently the Council has objected to the present user of the premises, but no action to rectify the position has been taken by the defendant. He has also purchased land at the other end of the river, but he says that he has no intention of developing this in any way.

6 The Outdoor Education Centre was opened in October, 1980. It is run by the defendant and his wife and one full-time member of staff, part-time staff being taken on from time-to-time. It is used for permitting school children betweenthe ages of 12 and 17 to engage in mountaineering, rock climbing, canoeing and orienteering. It is open during school terms, that is from October to December and from February through June of each year. Pupils arrive in groups of 50. They come, accompanied by a teacher or teachers, on a Thursday and use the lake on Friday and Saturday, leaving for home on Sunday. Another group arrives on Monday and the lakes are used on Tuesday and Wednesday. The pupils are divided into four sub-groups of about 12 and each group will have about two hours on the lakes. The river is used only at certain times and by more experienced pupils. The defendant has fourteen canoes and two wind-surfacers (which are only occassionally used). In the months of July, August and September he lets the premises to family and friends. I am satisfied from the evidence that a substantial interference with the fishery of the lakes and river has taken place. This has occurred in three different ways.

7 (a) The owners of the fisheries let: out rods and boats during the season. The overwhelming evidence of the experienced anglers who have regularly fished on the plaintiffs" lakes is that the canoeing which they encountered...