The Society of The Governor and Assistants, London, of The New Plantation in Ulster Within The Realm of Ireland, Mart Moore, Fanny E. Corsoaden, Eva G. H. McOorkell, Frederick Ritter, Jane Ritter, Alfred Moore Munn, and HM Attorney-General for Ireland (At The Relation of The Aforesaid Plaintiffs) v Richard M. Fleming, Edward Harold, Philip O'Doherty, Edward McDaid, John McColgan, Thomas Reynolds, John Barr, and John McDermott

• Jurisdiction: Ireland
• Judge: M. R.
• Judgment Date: 27 February 1911
• Court: Court of Appeal (Ireland)
• Docket Number: (1909. No. 357.)
• Date: 27 February 1911

The Society of the Governor and Assistants, London, of The New Plantation in Ulster Within the Realm of Ireland, Mary Moore, Fanny E. Corscaden, Eva G. H. McCorkell, Frederick Ritter, Jane Ritter, Alfred Moore Munn, And his Majesty's Attorney-General for Ireland (at the Relation of the Aforesaid Plaintiffs)

and

Richard M. Fleming, Edward Harold, Philip O'Doherty, Edward McDaid, John McColgan, Thomas Reynolds, John Barr, and John McDermott.

M. R.

Appeal.

(1909. No. 357.)

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.

1911.

Fishery Acts — Drift-net fishing for salmon — Public right of fishing in tidal and navigable channel — Nuisance to several fishery — Fixed net or engine — Damage caused by the acts of several persons, each independently engaged in doing what by itself is lawful.

The Irish Society are entitled, under a charter of King Charles II., to a several fishery in Lough Foyle, which is approached from the open sea by two channels north and south of a sand bank. The north channel, which is about three-quarters of a mile wide, and outside the limits of the Society's fishery, has been for many years fished for salmon by drift-nets at night from the second week in June to the last week in July. Those nets are from 600 to 1000 yards in length, and 15 feet in depth; corks are attached to a light rope at the top, and leaden weights are suspended from the bottom of the net. Each net is worked by a boat to which it is attached by a rope. The nets are usually shot out at the last hour of the ebb-tide if it occurs at night, and at first hang in a perpendicular position across the part of the channel they occupy, but drift with the tide, until they are straight up and down channel, when they are boarded. Only two casts can be made of a night. So long as the net is straight across the channel or slantwise, the fish strike the net, push their head through the meshes, and get entangled by their gill covers. When many boats were working, they used to shoot alternately from either side of the channel, and the nets would overlap. Very large quantities of fish were taken by these nets. The number of nets varied from night to night during the season. In that of 1908 the maximum was twenty-nine and the minimum six.

In an action by the Attorney-General, at the relation of the Society and the lessees of their several fishery, for an injunction to restrain the drift-net fishing for salmon, the defendants relied on their right as members of the public to capture as many salmon as they could by methods which were not illegal.

Held, by Meredith, M.R., and by the Court of Appeal, affirming his judgment, that the method of fishing adopted by the defendants and others of the public was not a nuisance at Common Law; and that the nets used were not illegal as being “fixed nets” or “fixed engines” within the meaning of the Irish Fisheries Code.

The use of drift-nets for the capture of salmon in Ireland is legal. The Duke of Atholl v. Glover Incorporation of Perth([1900] A. C. 403) does not apply to Ireland.

Action for an injunction. The Statement of Claim was as follows:—

1. By Letters Patent of King Charles the Second, bearing date the 10th day of April, 1662, duly enrolled, the first-mentioned plaintiffs were constituted and declared by the name of the Society of the Governor and Assistants, London, of the New Plantation in Ulster, within the realm of Ireland, one new body corporate with perpetual succession and a Common Seal. The said plaintiffs are hereinafter called “the Society.”

2. By the said Letters Patent His said Majesty granted unto the Society and their successors certain rights of several fishery in Lough Foyle and in portions of the rivers Foyle and Bann respectively, and from the date thereof the Society have occupied and enjoyed the same by themselves and their tenants, and have received the rents and profits thereof until the present time, and the said Society became and were and still are seized in their demesne as of fee of the exclusive right of several fishery for salmon in the waters aforesaid.

3. By indenture of lease dated the 2nd day of January, 1894, and made between the said Society of the one part, and Robert Lyon Moore and others of the other part, certain rights of fishery in the waters aforesaid were demised unto the said lessees for the term of thirty-one years from the 29th day of September, 1888, and all the estate and interest of the said lessees under the said lease prior to the grievances complained of passed to and became and now are vested in the above-named plaintiffs—Mary Moore, Fanny E. Corscaden, Eva G. H.M'Corkell, Frederick Ritter, Jane Ritter, and Alfred Moore Munn. The said plaintiffs are hereinafter called “the lessees.”

4. The lessees and their predecessors have expended large sums of money in erecting and maintaining hatcheries for the breeding and propagation of salmon in the said rivers and waters, and have otherwise expended and annually expend large sums of money for the protection and preservation of the said fish in the area of said fisheries, which are of very great value.

5. During the months of June and July, 1908, and for the purpose of taking to themselves the benefit and advantage of the said fisheries and of the expenditure of the Society and the lessees as aforesaid, and depriving the said plaintiffs thereof, the defendants combined together and have wrongfully and unlawfully resorted to sundry means and expedients for intercepting and capturing the salmon making for said lough and the rivers aforesaid, and have made use of certain nets at and near to the month of Lough Foyle, within the territorial waters of the realm both within and without the limits of a certain bay (now known as Magilligan Bay) being one of the King's Chambers situate within the counties Donegal and Londonderry, between Innish-owen Head on the west and Ramore Head on the east, and outside the said bay to the northward and north-west thereof along the sea adjoining the coast of Donegal, and have thereby wrongfully deprived the said plaintiffs of large quantities of salmon, and greatly injured the fisheries aforesaid.

6. The defendants, their agents, and servants, have made use of the said nets at the times and places, and within the limits aforesaid, which said nets are of very great length and of considerable depth, and have extended and stretched the said nets across the portions of the said waters known to the defendants to be frequented by salmon making for the said lough and rivers, and have there kept the said nets stationary throughout the entire periods during which salmon are wont to make for the said rivers, and each such net used as aforesaid presents for its entire length a barrier and obstruction impassable by salmon, whereby large quantities of salmon have been obstructed and prevented from passing up the said lough or ascending the said rivers as they would otherwise have done; and the said Society and the lessees and others of His Majesty's subjects have been greatly injured, and damnified, and hindered, in the exercise of their lawful rights, and the plaintiffs submit that user of such nets as aforesaid is contrary to, and a nuisance at, the Common Law.

7. The defendants, their agents, and servants have made use of the said nets on the days and at the times and places and in the manner aforesaid, and on divers of the said occasions so placed and disposed their said nets that the same were stretched entirely across the entrance to the mouths of the said lough and rivers, and each of them and the same were rendered impassable, and were effectively blockaded against the passage of salmon, by reason whereof large numbers of salmon have been prevented from ascending the said lough and rivers, and the Society and the lessees and many others of His Majesty's subjects have been greatly injured and damnified, and hindered in the enjoyment of their property and the exercise of their lawful rights, and the plaintiffs submit that the user of the said nets as aforesaid is contrary to the provisions of the Fisheries (Ireland) Acts, and a nuisance at Common Law.

8. The defendants, their agents, and servants, have made use of the said nets on the days and at the times and places and in the manner aforesaid, being within inland or tidal waters, and the plaintiffs further say that the said nets when so used were fastened to the defendants' boats, and were kept stationary as aforesaid, and were fixed engines within the meaning of the Fisheries (Ireland) Acts not legally erected or used in the open season of 1862, and that the same were used contrary to the provisions of the said Acts.

9. The defendants, not being the owners of a several fishery within the meaning of the Fisheries (Ireland) Acts, made use of the said nets on the days and at the times aforesaid for taking salmon, within one half mile seaward or along the coast from the defined mouths of the said rivers, and each of them respectively, contrary to the provisions of the said Fisheries (Ireland) Acts.

10. The said nets used by the defendants as aforesaid are made and designed for the capture and taking of fish by enmeshing and entangling the same, and are so constructed that the fish taken thereby are greatly mutilated and their value seriously depreciated, and many fish escaping therefrom are grievously injured and maimed, and by the use of such nets the defendants have caused the death or destruction of large quantities of salmon not captured by them, and have permanently driven away large numbers of salmon which would otherwise have ascended the said lough and rivers, whereby the Society and the lessees and many other subjects of His present Majesty have been greatly injured, and damnified, and hindered in the enjoyment of their property and the exercise of their lawful rights, and the plaintiffs submit that...