Westropp v Commissioners of Public Works in Ireland

• Jurisdiction: Ireland
• Judgment Date: 29 June 1895
• Date: 29 June 1895
• Court: Queen's Bench Division (Ireland)

Massy Westropp

and

Commissioners of Public Works in Ireland (1).

Q. B. Div.

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, 1842, 1863 (5 & 6 Vict. c. 106, s. 41; 26 & 27 Vict. c. 114, ss. 9 and 12) — Eel weir — Salmon weir — Free gap — Weir not extending more than half way across a river — Implied repeal of statute — Repeal by Statute Law Revision — Interpretation of Statute Law.

The respondents were owners of two eel weirs in the Shannon, which, in 1863, and since that year, had been without a free gap. It was admitted that neither weir extended more than half way across the river. In a prosecution before Justices under section 12, sub-section 1, of the Salmon Fisheries (Ireland) Act, 1863, for not making a free gap therein “within twelve months after the commencement of this Act” of 1863, the Justices dismissed the complaint on the ground that the offence under this sub-section was not a continuing one, and that the prosecution should have been brought within six months after the expiration of the twelve months limited by sect. 12, sub-sect. 1, of the Act. On case stated for the opinion of the Queen's Bench Division:—

Held, that the offence mentioned in sect. 12, sub-sect. 1, of the Act of 1863, was a continuing offence, and was not, as contended, a complete offence at the expiration of the twelve months after the passing of the Act, and that therefore a prosecution could rightly be brought, against the owner for the time being, to recover the prescribed penalties incurred by him during the period (as limited by 13 & 14 Vict. c. 88, s. 50) of six calendar months preceding the date of the summons.

Held, further, that sect. 41 of the Act of 1842 (5 & 6 Vict. c. 106) having been superseded and repealed, impliedly by sect. 9 of the Act of 1863, and in express terms by the Statute Law Revision Act of 1892 (55 & 56 Vict. c. 19), the provisions therein, by which its operation was confined to weirs “which extend more than half way across any river,” could not be used to limit the general application of the words “every fishing weir” in sect. 9 of the Act of 1863, so as to exclude from its operation those weirs which did not extend more than half way across the river.

Held, further, that the Act of 1863 applied to eel weirs, and not to salmon weirs only, and that therefore, under section 9 of that Act, it was required that eel weirs should have a free gap in accordance with the regulations in that section.

Held, further, that the provisions in sect. 9 of the Act of 1863, that the

free gap should be “not less than one-tenth part of the width of the stream,” must be construed as meaning one-tenth part of the width of that part of the stream which was intercepted between the extremities of the weir.

Case Stated, pursuant to 20 & 21 Vict. c. 43, by Justices, sitting at Castleconnel Petty Sessions, County Limerick, on the 7th January, 1895, in the matter of two complaints then heard before them in regard to the Upper and Lower Castleconnel eel weirs. The summons was as follows:—

PETTY SESSIONS DISTRICT OF CASTLECONNEL, CO. OF LIMERICK.

John Massy Westropp, Complainant; The Commissioners of Public Works in Ireland, Respondents.

Whereas, complaints have been made to me this day, as follows:—1. That you, the defendants, having been at, and ever since the time of, the commencement of the Salmon Fishery (Ireland) Act, 1863, owners of a certain fishing weir, that is to say, the upper of the two fishing weirs situate in the river Shannon, at or near Castleconnel, in the county of Limerick, which said weir was at the time aforesaid without a legal free gap, and not having made such gap from the time aforesaid up to the period of six months immediately preceding the making of this complaint, you, the defendants, did not, during said period of six months, make such legal free gap in said weir, but, being the owners of said weir, did leave the same without said gap for such period. 2. That you, the defendants, etc. [Then followed a complaint, framed in the same terms, in regard to the lower of the two weirs.] This is to command you, etc.

At the hearing of these complaints — which were framed under the Salmon Fishery (Ireland) Act, 1863 (26 & 27 Vict. c. 116), sect. 12, sub-sect. 1 — it was admitted by the defendants that the said weirs were in existence at the time of the commencement of the Act of 1863, and that the defendants were then, and had been ever since, owners thereof; and it was admitted by the complainant that the weirs were used exclusively for catching eels, and that neither of them extended half way across the river, the measurements agreed to being—Upper Weir, 191 feet long; width of river, 500 feet; leaving a clear water way of 309 feet—Lower Weir, 207 feet long; width of river, 529¹/₂ feet; leaving a clear water way of 322¹/₂ feet. It was proved by the complainant that, at the time of the commencment of the Act of 1863, these weirs were without a free gap, and that they had remained so down to the present.

The defendants contended that, by the law of Ireland, a free gap was not required in any weir extending less than half way across the river — relying on 5 & 6 Vict. c. 106, sect. 41, and Rolle v. Whyte (1); that the Salmon Fishery Act of 1863 was limited in its scope and operation to salmon, as defined by the Salmon Fishery Acts, and that sect. 9 of that Act did not apply to eel weirs; and, thirdly, that the summons was late, the offence under the section (sect. 12, sub.-sect. 1) being complete on the 28th July, 1864, and the prosecution not having being brought within six months therefrom — relying on 13 & 14 Vict. c. 88, sect. 50; Marshall v. Smith (2); and Coggins v. Bennett (3).

The prosecutor contended that sect. 41 of 5 & 6 Vict. c. 106, was repealed impliedly by sect. 9 of the Act of 1863, and expressly by the Statute Law Revision Act of 1892 — citing Reg. v. Commissioners of Public Works (4) — and that Rolle v. Whyte (1) was a decision under an English statute which did not extend to Ireland, and was no authority in a case under sects. 9 and 12 of the Irish Act of 1863; that the Act of 1863 was a general Act, applicable to eels as well as to salmon — relying on sect. 44 of that Act, on 32 & 33 Vict. c. 92. sect. 20, and on Devonshire v. Foott (5); and that the offence under sect. 12, sub-s. 1, was a continuing offence, citing Doran v. Cunningham (6) and Devonshire v. Foott (5).

The Justices were of opinion that sect. 9 of the Act of 1863 applied to weirs extending less than half way across the river; that the Act applied to eel weirs, and therefore that there should be free gaps in these weirs — such free gap to be one-tenth of the width of the stream covered by the weir — but that the intention of the Legislature was that, within twelve months from the passing of the Act, a free gap should be made in every weir, and that the proper time to take proceedings for non-compliance therewith was within six months (see 13 & 14 Vict. c. 88, sect. 50), after the expiration of the said twelve months, and that it was not intended that the penalty should continue in perpetuity, the Inspectors of Fisheries

having (under the 7th sect. of the Act of 1863), full powers to inspect the weirs, and if illegal to order their removal, or to fix a time within which gaps should be made. The Justices, accordingly, dismissed the summons, without prejudice, and, on the application of the complainant, stated this case for the opinion of the Queen's Bench Division on the question whether their determination was correct in law.

Redmond Barry (The Right Hon. J. Atkinson, Q. C., and Ronan, Q.C., with him), for the appellant:—

We submit that the Justices should have convicted the respondents, that their decision on the two main matters at issue was right, but that they were incorrect in holding that the summons should have been brought within six months from the 28th July, 1864.

1. Upon the first point: previous to 1841, the law in Ireland as to free gaps was governed by 23 & 24 Geo. 4, c. 40, sect. 11, which provided for a Free Passage or King's Gap of at least 21 feet clear in the deepest part — a general enactment, not limited to weirs extending more than half way across a river. Then came the Act of 5 & 6 Vict. c. 106, which was made to apply only to weirs “which extend more than half way across any river at the lowest state of the water thereof or more than half way across any branch thereof for the purpose of catching salmon, eels, or other fish.” This limitation continued in existence only till 1863, when, as we submit, sect. 41 was impliedly repealed by the 9th sect. of 26 & 27 Vict. c. 114. Section 9 contains a complete enumeration of the regulations to be observed in the construction of free gaps in weirs; it re-enacts several of the requirements mentioned in sect. 41, omitting others, and must be taken to be “in substitution for, and therefore to have impliedly repealed the 41st sect. of the Act of 1842.”

This was the argument of counsel for the respondents in Devonshire v. Foott (1) and we respectfully adopt it here. The Judges in that case refused to read into sect. 9 (1863), the provision as to settlement of disputes by the Commissioners contained in sect. 41 (1842), but omitted in the later Act, and they thus must

be taken to have held that sect. 41 was impliedly repealed, and George, J., expressly held this (1). Sect. 44 (1863) provides that the Act, “so far as consistent with the tenor thereof,” shall be construed with the other “Salmon Fisheries Acts,” but this cannot affect the question whether sect. 9 was intended to supersede sect. 41 or not. In any event, sect. 41 (1842) has been expressly repealed by the Statute Law Revision Act, 1892 (55 & 56 Vict., c. 19), and sect. 9 must now be...