ROBERT LYON MOORE AND OTHERS, PLAINTIFFS, v. THE ATTORNEY-GENERAL FOR SAORSTÁT ÉIREANN, WILLIAM GOAN AND OTHERS DEFENDANTS (I). 1930. July, 8, 9, 14, 15, 16, 17, 21, 22, 23, 24. Several fishery--Tidal navigable waters in Donegal--Claim to fishery disputed and public right asserted--Whether fishery "put in defence" prior to legal memory--Historical and legal possibility of fishery having been "put in defence"--The Brehon Laws--Application of Magna Charta to Donegal--Magna Charta , chap. 16--Landed Estates Court Conveyance--Construction of conveyance--Parliamentary titles--Grant by Crown of several fishery in tidal waters within legal memory--Whether validated by the "Plantation" statutes--Principles of construction of "Plantation" statutes-- Whether fishery within the application of the "Plantation" statutes--10 Car. 1, c. 3-10 Car. 1, sess. 3, c.2-10 Car. 1, sess. 3, c.3--15 Car. 1, c. 6. The plaintiffs brought an action claiming a declaration that they were entitled to a several fishery for salmon and all other fish in the entire tidal portion of the River Erne, in the County of Donegal. The defendants were a number of local fishermen (who, in 1925 for the first time, had challenged the plaintiffs' title) and the Attorney-General of the Irish Free State, who was sued as representing the public and the State. In their statement of claim the plaintiffs alleged that from the time whereof the memory of man was not to the contrary, the said portion of the river and the sole and several right of fishing therein, had been put "in defence" ; and that, prior to the granting of the Letters Patent set out in the statement of claim, the said right of fishing had been vested in and was part of the possessions of, the Kings and Queens of England as Lords of Ireland. The statement of claim set out a large number of documents upon which the plaintiffs based their claim. Among these the plaintiffs relied upon a Landed Estate court conveyance of 1869 as conferring on them a parliamentary title; and they also relied upon certain statutes of Charles I whereby titles, passed under Commissions of Grace, were validated and given statutory authority. The defendants relied on Chap. 16 of Magna Charta as requiring that a several fishery in tidal waters must have been put "in defence" prior to the death of Henry II, and they contend that such a fishery did not exist and was not historically possible in the locus in quo; they also denied the conclusive effect claimed by the plaintiffs for the Landed Estates Court conveyance; and they also denied that the statutes of Charles I validated the plaintiffs' title. The plaintiffs proved in evidence that they and their predecessors in title had been in possession of the fishery for over three hundred years. Held by the Supreme Court (Kennedy C.J., FitzGibbon and Murnaghan JJ.) that that Court had already decided in R. (Moore) v. O'Hanrahan [1927] I.R. 406, that the Landed Estates Court conveyance of 1869 only passed whatever fishing rights were possessed by T.C. (the owner and petitioner in the Landed Estates Court) leaving all questions as to the extent and quality of such rights undetermined, and therefore that conveyeance was not conclusive as to the plaintiffs' title, and to that view Kennedy C.J. and Murnaghan J. still adhered; Fitzgibbon J. holding himself bound by that decision. Held also, that, upon the evidence, no fishery in tidal waters existed in Donegal prior to the death of Henry II. English law had not then been extended to Donegal, and the Brehon law which was in force there did not incorporate the feudal notion of private ownership of fishing in tidal waters. Accordingly the fishery had not been put "in defence" prior to the death of Henry II. FitzGibbon J. refrained from deciding whether Magna Charta was in force in Donegal before 1612, or whether James I or Queen Elizabeth would not have had power to create a new fishery in tidal navigable waters in Donegal after that territory had been acquired by conquest and before a Proclamation, Order in Counsel, or statute had been made extending the laws of England, including Magna Charta, to Donegal, or whether the principles declared in Attorney-General for British Columbia v. Attorney General for Canada, [1914] A.C. 153, as applicable to newly settled colonies, (1) Before Kennedy C.J., Fitzgibbon and Murnaghan JJ. |
would have any application to dominions newly acquired by conquest, as was the case with Donegal at the beginning of the seventeenth century. Held further (Kennedy C.J. and Murnaghan J.; FitzGibbon J. dissenting), that neither of the statutes relied on by the plaintiffs, 10 Car. I, sess, 3, c. 3, or 15 Car. I, c. 6, gave to the Letters Patent of 1639 (granted by Charles I to one of the plaintiffs' predecessors in title) any statutory authority to override the provisions of Magna Charta in respect of the fishery, and that grant did not, therefore, bind the public. Held, accordingly (Kennedy C.J. and Murnaghan J.; FitzGibbon J. dissenting), that the action should be dismissed. Malcomson v. O'Dea, 10 H.L.C. 593, and Neill v. Duke of Devonshire, 8 App. Cas. 135 applied. Decision of Johnson J. (reported 1929] I. R. 191) reversed. Appeal from the judgment and order of Johnson J. (reported [1929] I.R. 191) declaring, inter alia, the plaintiffs be entitled to and possessed of a several fishery for salmon and all other kinds of fish in the entire tidal portion of the River Erne in the County of Donegal from the Falls of Assaroe at Ballyshannon to the high sea or bar of Ballyshannon and the bed and soil underlying the said waters. The said order also granted the plaintiffs a perpetual injunction restraining the defendants (other than the Attorney-General from trespassing upon the said several fishery and from fishing therein or taking fish thereout, and it ordered the defendants to pay the plaintiffs their costs of the action, such costs not to be levied against the Attorney-General in his personal capacity. The notice of appeal by the defendants other than the Attorney-General applied for an order that the entire of the judgment of Johnson J. be reversed and that in lieu thereof it be ordered that the action be dismissed, on the grounds that the judgment and order were erroneous in law and erroneous in fact, and that the findings and judgment of Johnson J. were bad in law, and that the said findings were against the evidence and the weight of evidence, and that the trial Judge misdirected himself both in law and on the facts in finding that the plaintiffs were entitled to the relief claimed in the action or any part thereof. The Attorney-General at first served notice of appeal limited only to the incidence of the costs of the action. This notice applied for an order setting aside that portion of the order in the action which directed that the defendants pay to the plaintiffs their costs of the action when taxed and ascertained in so far as it imposed any liability on the defendant, the Attorney-General, to pay such costs, and for an order declaring that the Attorney-General was not liable to pay any part of the plaintiffs' costs of the action. Upon the hearing of a preliminary objection by the plaintiffs to the competency of the appeal by the defendants other than the Attorney-General, it was held by the Supreme Court that the appeal of the defendants other than the Attorney-General was competent only to the |
extent of special relief granted against them, viz. The injunctions, etc., and that appeal against the declaratory part of the order lay solely within the competence of the Attorney-General. This decision is reported ([1930] I. R. 471). Subsequently to that decision, the Attorney-General applied for and obtained an extension of time for the purpose of serving notice of appeal against so much of the order of Johnson J. as was not the subject of his pending appeal (reported [1930] I. R. 560). This (second) notice of appeal by the Attorney-General applied for an order that the whole of the order of Johnson J. (not the subject of his (the Attorney-General's) pending appeal) be reversed and that the action be dismissed. C. Lavery K.C. and E.J. Kelly K.C. (with them M. Nunan) for the appellant, the Attorney-General:-- The letters patent of 20 Jac. 1 (1622) dealt with the whole fishery claimed by the plaintiffs as a several fishery and the Attorney-General is prepared to admit that the fishery was dealt with since then as private property. The documentary title of the plaintiffs does not, however, date from earlier than 1603, and the commencement of title at such a comparatively modern date is insufficient to establish a legal origin for a several fishery in tidal waters. This proposition depends upon chap. 16 of Magna Charta, which as construed in authoritative decisions, requires that a several fishery in tidal waters must have been put "in defence" prior to the death of Henry II (1189). An appropriation to the exclusion of the public prior to that date is essential to the creation and existence of such a fishery. [They referred to Malcomson v. O'Dea (1) and Neill v. Duke of Devonshire (2).] It is submitted that such appropriation must have been made by the Crown. The sufficiency of such an appropriation by an individual has never been decided. Magna Charta was primarily a statement of English common law: Coke, Inst. II, proeme; and the judgment of Lord Haldane in Attorney-General for British Columbia v. Attorney-General for Canada (3) would indicate that it confirmed a common law right of fishing enjoyed by the public from immemorial antiquity while, as a compromise, validating acts of the Crown earlier than 1189 excluding the public right. [They also referred to Hale, "De Jure Maris," I, chaps. 4 and 5 (Hargrave's "Tracts," I, pp. 10, 17)] Prior to the more recent affirmance of this provision of Magna Charta, it appears for some time
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to have been disregarded or "out of use" in the words of Coke, Inst. II, note to chap. 16 of Magna Charta. This is clear from the Case of the Royal Fishery of the Banne, (1), where several fisheries in tidal waters were resolved to belong to the King by his prerogative. This erroneous statement of the common law, made without reference to Magna Charta, was contemporaneous with the earliest document of title proved by the plaintiffs, and shows the prevailing view at the time of the royal grants upon which the plaintiffs rely. In this view, it was unnecessary and irrelevant to seek a title from time immemorial. The evidence in the present case establishes conclusively the historical impossibility of an appropriation by the Crown before 1189 of the several fishery in question here and (if an appropriation by a private individual were enough) the legal impossibility of such an appropriation. The jurisdiction of the Crown was not extended to Donegal until about 1586, when the territory was made shireground, and a grant of the fishery by the Crown before that date was, therefore, historically impossible. The position in Malcomson v. O'Dea (2) was different, since the locus in quo (Limerick) had been invaded prior to 1189. The introduction of English law to Donegal dates at the earliest from 33 Henry 8 (1542): The Case of Tanistry, (3 ; and probably from a later date. Until such introduction, the Brehon law was in force in Donegal, and the evidence shows that the feudal notion of a several fishery was foreign to that system and negatives the possibility of a legal origin for the fishery in question. The observation of Bradley L.C. in Allen v. Donnelly (4), that "rights of this kind may have been enjoyed by the native princes," was merely obiter and made admittedly without consideration of the Brehon law. His judgment (at pp. 243-4) refers solely to the right that may have been acquired by the Crown. The limited rights of fishing enjoyed by the Abbey of Assaroe, as found by the Inquisition of 1588, are capable of being explained as grants made by the whole Tuath, or community, in whom the fishing rights were vested, to strangers to the Tuath. The form of other grants, not made by Normans, to religious houses, supports this explanation, being in the nature of legislative acts. The plaintiffs cannot rely upon long possession as raising a presumption of a lawful origin. "Prescription can only be of something which could have a lawful origin at common law" : per Lord Blackburn in Goodman v. Mayor of Saltash (5). [They
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also referred to Carter v. Murcot, (1) ; Edgar and Others v. Special Commissioners for English Fisheries, (2).] The reference in the Inquisition of 1588 to "the second cast or draught of all the fishermen at Assaroe" shows that the fishing rights of the Abbey of Assaroe were carved out of a public and general right of fishing. If a several fishery existed, the jurors would have found who owned it. The Inquisition of Rathmullen in 1603 was simply a formal finding to support the lease to Benglie in the same year and contains no reference to a previously existing several fishery. [They also referred to Duke of Northumberland v. Houghton, (3) ; Bloomfield v. Johnson, (4) ; Tyghe v. Sinnott, (5) ; Attorney-General for Canada v. Attorney-General for Quebec, (6) ; Attorney-General v. De Keyser's Royal Hotel (7). The Landed Estates Court conveyance of 1869 did not confer a parliamentary title to the several fishery but only purported to convey whatever title tot the fishery Thomas Connolly had: R. (Moore) v. O'Hanrahan (8). W. Jellett K.C. and A. K. Overend K.C. (with them E. Phelps K.C. and A. C. Newett) for the respondents:-- Assuming Magna Charta applied to Donegal, it is sufficient for plaintiffs to establish the possibility of an appropriation of a several fishery in the waters in question before 1189. Such an appropriation might have been made either by the Crown or an individual. The limitation of the appropriation to an act of the Crown has never been decided, and would be contrary to the suggestion of Brady L.C. in Allen v. Donnelly (9), that "rights of this kind may have been enjoyed by the native princes," and to the fact that Henry II had never penetrated to the locus in quo in that case. Willes J. in Malcomson v. O'Dea (10) clearly held that appropriation by an individual would be sufficient. [They also referred to Neill v. Duke of Devonshire (11).] The evidence given as to the Brehon law dealt with the position in the eighth century and there was no evidence to show that the same position obtained four centuries later. Even if it did, the evidence was not sufficient to exclude the possibility of an appropriation by a private individual and was necessarily indefinite
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owing to the still incomplete knowledge of the period and the law in question. Fishing rights of various kinds, such as the rights of riparian owners to erect weirs and take limited quantities of fish, were apparently recognized by Brehon law and, while not exclusive rights, the existence of such rights makes it more probable that the concept of an exclusive right was not repugnant to that law. The only general right deposed to, making one killing of salmon lawful, is a limited right peculiar to the inhabitants of that particular locality. It differs greatly from the general right of the public to unlimited fishing which the appellants contend for and which they must show existed at the period and place in question; and it is not inconsistent with the ownership of the whole fishing being in some individual. Furthermore, Magna Charta was, in the particular provision, concerned with actual fact rather than legal theory; and the phrase "lawful origin" as used in the cases on several fisheries, refers only to an origin according to Magna Charta, viz. an appropriation before 1189. There is nothing improbable in the appropriation of a fishery by, for example, a member of a reigning house which had usurped the whole kingdom. That such an appropriation, even though illegal by Brehon Law, would have satisfied the terms of the Magna Charta is clear from several passages in Malcomson v. O'Dea (1) ; Neill v. Duke of Devonshire (2) ; and Attorney-General for Canada (3). These cases also establish that the title to a several fishery may have been acquired by prescription and prescription need not have originated in a lawful act. The onus of proof of displacing the possibility of the requisite appropriation lies on the appellants and they have not discharged that onus. The long continued possession of the plaintiffs and their predecessors in title and the consistent documentary title for so many centuries establish a presumption of a right created before legal memory : Malcomson v. O'Dea (4) ; and the appellants have to meet a case which, in the words of Lord O'Hagan in Neill v Duke of Devonshire (5), is "conclusive in the absence of countervailing proof." This they can only do by showing the absolute impossibility of a legal origin for the right claimed. Apart from the evidence as to the Brehon law, already dealt with, there is no "countervailing proof," while the evidence preponderates in favour of plaintiffs. The finding in the Inquisition of 1588 as to
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the limited fishing rights of the Abbey of Assaroe necessarily postulates the existence of an owner of the whole fishery who would have had power to create limited rights. The possibility of creating such rights out of a several fishery so as to leave the grantor his original rights as against everyone but his grantee is recognized in Bloomfield V. Johnson (1). [They also referred to Little v. Wingfield (2) ; Goodman v. Mayor of Saltash (3).] The fishing was found to have been in "right of their abbey" which would relate its origin to that of the Abbey in 1184; and "all the fishers at the Assaroe" is hardly a sufficient description of a public right of fishing. Moreover, such a limited right could not be carved out of a public right, since the two rights would be mutually destructive. Further, the evidence establishes that the chief of the territory with the consent of the freeholders could, under Brehon law, have made a valid grant of a several fishery ; and a grant made without such consent would, it is submitted, have been validated by user raising a presumption of such consent. The appellants must, therefore, face the additional onus of showing that no such grant with or without consent was ever made. The limited rights of the Abbey became vested in the Crown under the statutes of the dissolution of the monasteries (28 Hen. 8, c. 16 and 33 Hen. 8, sess. 2, c. 5), and the balance of the fishing rights comprised in the several fishery became vested in the Crown by reason of the forfeiture and the attainder of Rory O'Donnell under 11, 12 & 13 Jac. 1 , c. 4. It is significant that, in the Protest of Rory, in 1607, there is no mention of a deprivation of the freeholders, while, in Baron Delvin's Confession in the same year, Rory is stated to have complained of the fishery having been kept from himself by the Crown. Other strong evidence of the existence of a several fishery from time immemorial is afforded by, amongst other documents, the grant by Manus O'Donnell in 1544 to Henry VIII of one-half of the fish of the sea, reserving the other half to himself. The importance of long-continued possession and consistent dealing has already been referred to and is such that the respondents could base their title solely on the presumption of lawful origin thereby raised. [They referred to Tighe v. Sinnott (4) ; Vandeleur v. Glynn (5).] "Possession within living memory is quite sufficient to sustain a title founded on ancient documents." : per Smith M.R.,
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Ashworth v. Browne (1). [They also referred to O'Neill v. Allen (2) ; Phillips v. Halliday (3) ; Simpson v. Attorney-General (4).] It is, however, further submitted that the evidence shows the existence of a several fishery either prior to 1189 or prior to the introduction of English law into Donegal and, in the latter alternative, the presumption of lawful origin would apply. The fishery inquestion has been dealt with as private property for over three centuries. It has been the subject-matter of numerous Inquisitions, grants by the Crown and leases, which are strong evidence of ownership. [They referred to Bristow v. Cormican (5).] It has received express statutory recognition in the statutes for the preservation of salmon, 31 Geo. 2, c. 13, and 3 Geo. 3, c. 35. [They referred to Hemphill v. McKenna (6) ; Smith v. Andrews (7).] It has been found a several fishery by the Inspectors of the Irish Fisheries under the Fisheries (Ireland) Act, 1869, for the purposes of issuing "fixed engines" certificates. It has borne a quit rent recently redeemed, and rates and taxes. The title has been admitted or unquestioned in prior litigation. [They referred to Reg. (Gillen) v. Donegal Justices (8).] The alleged right of the public was never asserted until the intrusion, in 1925, of the present defendants other than the Attorney-General ; and there is no suggestion of a public right of fishing in the locus in quo in any document, ancient or modern, which has been proved in evidence. The root of the title of the plaintiffs is no more "modern" than the root of the title in other cases on several fisheries. In Allen v. Donnelly (9), the title commenced with an Inquisition in the reign of Queen Elizabeth and letters patent of Charles II ; in Little v. Wingfield (10), with a grant by Charles II ; and in Duke of Devonshire v. Hodnett (11), with letters patent of James I. The plaintiffs contend, in the alternative, that an indefeasible title to the several fishery was conferred by the Landed Estates Court conveyance of 1869 under sect. 61 of the Landed Estates Court (Ireland) Act, 1858. It is submitted that R. (Moore) v. O'Hanrahan (12), did not conclude this point ; and the fishing rights in dispute in Mecredy and Others v. Alexander and Others (13), formed no part of the property which the plaintiffs acquired
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under the conveyance in question, while the judgments all recognise that that conveyance passed the several fishery by the plaintiffs. C. Lavery K.C. in reply:-- The effect of the evidence as to the Brehon law is that the chief and the freeholders of a territory could grant whatever limited rights they had as individuals but, as they could not have had a several fishery, they could not grant such a fishery. The origin of the right claimed by the plaintiffs is not lost in antiquity but is clearly based on the supposed prerogative of the Crown. Thus, the Inquisition of Rathmullen, 1603, finds the fishery belonged to the King "in right of his Crown" ; and such a finding does not supply a legal foundation for the right claimed. (He referred to Johnston v. O'Neill (1).] A. A. Meredith K.C., J. McLoone K.C., P. Lynch K.C., M. C. Maguire K.C. and B. McGuickin appeared for the defendants other than the Attorney-General. 1933 - Mar. 14, 15. Subsequently to the foregoing argument, the appeal was relisted by direction of the Supreme Court for argument as to the effect of the "Plantation" statutes [assed in the rign of Charles I. The court called upon the respondents to commence the argument on this point. W. Jellet K.C. and A. K. Overend K.C. for the respondents :-- The respondents submit that they acquired an indefeasible statutory title under 10 Car. 1, see. 3, c. 3, and 15 Car. 1, c. 6. The enacting words of sect. 1 of the former statute refer to four distinct denominations of property, viz 1, eight named counties (including Donegal) ; 2, certain named territories ; 3, lands in other named counties "usually named plantation lands" ; and 4, further lands in other named counties "usually called plantation land or heretofore passed…as plantation lands." There is a clear-cut distinction between the first two classes and the second two classes in that the first two are unqualified, since they were, it is submitted, known plantation lands. The whole of Donegal, including the locus in quo here, is thus deemed to have been in the seisin of the Crown, by indefeasible estate in fee simple, for the purposes of the enactment, viz. At the time of any grant by the Crown within the space of five years from the end of the then session of Parliament ; and
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the grantee under any such grant is confirmed in his title against both the Crown and every other person. The space of five years mentioned expired on March 21st, 1639, but, as the period was before the revision of the calendar and the year commenced on March 25th, the grant by Charles I to Thomas, Lord ffollitt, on August 30th, 1639, came within the five years. These letters patent were a new grant of lands including expressly the fishery in question, made without reference to the prior title and in expressed reliance on the Commission of Grace held at Canterbury. The release from the obligations of the plantation contained in this grant identifies it as a plantation grant. This release extends to all the parcels granted, including the fishery. The reference to the Commission at Canterbury is within the terms of he statute mentioned, while the later statute, 15 Car. I, c. 6, applies expressly to letters patent passed upon that Commission. This latter statute confirms the title of grantees , in respect of lands within the "late plantations" made or to be made by Elizabeth, James I or Charles I, both against the Crown and every other person. The grant of other lands is validated as against the Crown alone. It is submitted these provisions also validate the title of the respondents, as also does sect. 2 of the same Act which corresponds closely with sect. 1 of 10 Car. I, sess, 3, c. 3. The statute of 15 Car. I provides, by sect. 5, for a liberal interpretation of that and prior statutes in favour of patentees and their successors intitle. The principle of a liberal construction has been expounded and applied in Delacherois v. Delacherois (1), where the words were held sufficient to override provisions of the statutes Quia Emptores and De Prerogativa Regis. C. Laverty K.C. and E. J. Kelly K.C. for the appellant, the Attorney-General :-- The general words in the statute of 10 Car. I, sess. 3, c. 3, relating to lands in Donegal, come within the principle that general words in the statute are to be expounded as particular, where the intent and meaning of the Legislature were particular. [They referred to Hawkins v. Gathercole (2).] Apart from any special knowledge of the period or necessity of the statute in question, the preamble sets out the evils intended to be remedied, viz. defects in existing titles granted by the Crown. Nothing in the ststute requires a wider construction than that the lands
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referred to in sect. 1 (including Donegal) meant only "plantation" lands. This is made quite plain by the statute 15. I, c. 6, sect. 1 of which refers to the "late plantations" without reference to Donegal or the other counties mentioned in the earlier statute, while sec. 2 (which contains such a reference) can and should be interpreted as only declaring the lawful seisin of the King for the purpose of grants validated by sect. 1. The statutes persue the policy of validating plantation grants as against everyone and validating non-plantation grants only as against the Crown. In the former case, the rights of prior private owners are ousted, in pursuance of the policy of plantation, while in the latter case these rights are left untouched. In either case, it is evident that it is only the prior private rights that are regarded. The statutes were never intended to, and did not in fact, authorize the Crown to dispossess the public or create a new (and otherwise illegal) franchise. Yet, it is only by an ouster of a prior public right that these statutes would confer any title on the plaintiffs, since the plaintiffs would only require the aid of the statutes if their prior title was invalid, if, in other words, no several fishery had existed and the right of fishing had been, accordingly, in the public. The statutes would, therefore, have to have created a title in the plaintiffs to the exclusion of the public and not merely to have remedied some formal defect. The wording of the statutes is appropriate only to bar the rights of private individuals and corporations. Thus 10 Car. I, sess. 3, c. 3, s. 1, confirms grants as against persons "having, claiming, or pretending to have any right, title, interest, rent service or demand" in respect to the lands in the grants ; and 15 Car. I, c. 6, confirms grants as against " all and every other person and persons, bodies politik and corporate, as well as spiritual and temporal whatsoever." The statutes can hardly be construed as intended to bar public rights of fishing when, in the view of the law then prevailing, the public were not conceded to have any rights in tidal waters. Such rights were, according to the decision in the Case of the Royal Fishery of the Banne (1), conceived to belong to the King by virtue of his prerogative. Public rights could only be extinguished by a statutory enactment clear in terms and intention. [They referred to Forbes v. Ecclesiastical Commissioners for England (2) ; Corporation of Yarmouth v. Simmons (3).]
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It is submitted that Magna Charta cannot be overruled by mere implication which is not necessary to effectuate the intention of the particular statutes. On the question of fact, it is submitted that the fishery in question was not part of the plantation lands nor did it lie within the plantations. The plaintiffs cannot rely on a grant to Gofton in 1608, as he was neither an undertaker nor a servitor ; and the grant in 1609 to Baroness Delvin and Sir Richard Nugent only comprised a fishery without lands so far as it related to Donegal, which could not be the subject-matter of a plantation grant. The 1,000 acres attached to Ballyshannon Castle were (inter alia) expressly excepted from the Project of the Plantation, and it was what was so excepted that was granted to ffolliott in 1639. None of these grants were in the form of strict plantation grants, while the release contained in the grant of 1639 from articles of the plantation is referable to the manor of Newputon, which was part of the plantation and was included in the same grant. Pynnar, in his "Survey of the Plantation," includes ffolliott as regards Fermanagh but does not mention him in connection with Donegal, although he deals exhaustively with the latter county. W. Jellett K.C. in reply :-- The grant to ffolliott was subsequent to Pynnar's "Survey."
July 31 KENNEDY C.J. ;-- What I am about to read, represents the joint opinion of Mr. Justice Murnaghan and myself on all the questions for decision by the court. I am reading it for both ; but I wish to acknowledge that the great labour of putting it together has been his. The appeal in this action has been brought by the Attorney-General against the judgment of Mr. Justice Johnston, whereby he declared that the plaintiffs were entitled to a several fishery for salmon and all other kinds of fish in the entire tidal portion of the River Erne in the County of Donegal from the Falls of Assaroe at Ballyshannon to the high seas or bar of Ballyshannon, and whereby the Court ordered that the plaintiffs be quieted |
in the possession of the said several fishery, and granted a perpetual injunction against the special defendants and all other persons from trespassing upon the said several fishery, or interfering with the plaintiffs in the exclusive use and enjoyment of the said several fishery. The nature of the case has required that a great mass of documentary evidence should be tendered and oral evidence of considerable volume has been brought forward upon the historical questions involved, while the legal arguments have extended over a wide range. The points involved may, however, be dealt with under three heads. In the first place the plaintiffs claim a parliamentary title to the several fishery under a Landed Estates Court Conveyance. Failing this, they seek to make title to a several fishery according to the rules of common law as laid down in Magna Charta. In addition, they rely upon various statutes of Charles I whereby titles, passed under Commissions of Grace, were validated and given statutory authority. By a Landed Estates Court Conveyance, dated 11th March, 1869, the predecessors of the plaintiffs in consideration of the sum of 45, 520 acquired certain fisheries therein set forth and described. These several fisheries included not only those in the tidal portion of the River Erne but also other several fisheries in the inland waters of the Erne and Abbey rivers and all waters in communication therewith. It appears, however, that the several fisheries in the tidal portion of the River Erne are the most valuable - especially the salmon fishery - of all the fisheries granted by this Landed Estates Court Conveyance. The material portions of this Landed Courts Conveyance are set out in paragraph 17 of the Statement of Claim in this action, and they will be found in the report of an application for a mandamus heard in this Court, R. (Moore) v. O'Hanrahan (1). In his judgment at the trial of this action Mr. Justice Johnston says (2) :--"I do not think that the Supreme Court intended in R. (Moore) v. O'Hanrahan (1) to decide anything as to the operative force and effect of the deed poll of 1869 other than that, in the proceedings before the District Justice, it was not final and conclusive as evidence of the complainants' title." The learned judge is under a misapprehension. The Court did, as the report will show, find it necessary to arrive at a construction of the deed-poll. Murnaghan J. there stated his opinion as to its proper construction in these words (3) :--
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"The granting of the right, measured by reference to the former title, is quite in variance with the idea of a grant made with the full exercise of the authority of the Court and having the full sanction of the statutory title. I am, therefore, of opinion that the Landed Estates Court took the middle course of granting the several fishing rights so long as they had valid legal existence, and that the purchaser was well aware that he ahd 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." In the view just stated he was in agreement with the judgment of Kennedy C. J., reported at p. 433 of the report. He says :-- "In the second place, I am of the opinion that the descriptive parcels with which we are concerned did not purport to describe a several fishery, but used equivocal terms for the purpose of covering, without defining, the existing fishery rights of Thomas Connolly. In my opinion, (he continues), "on the true construction of the deed poll, the Court did only convey by the first description what indeed it purports to convey, namely, the salmon fishery rights of Thomas Connolly in the Rivers Erne and Abbey, whatever those rights might be, leaving all questions as to the extent and quality of such rights, if questioned, to be determined elsewhere." On the hearing of this appeal it was again argued that the deed poll granted the several fisheries mentioned in it with all the force of a parliamentary conveyance and that the grant was not in any way limited to such property in these several fisheries as was formerly possessed by Thomas Connolly. When the case of R. (Moore) v. O'Hanrahan (1) was previously before this Court we were not aware that as far back as 1883 this very point upon the construction of the deed poll had been decided by the House of Lords. It appears that the diligent investigation made by the solicitor for the special defendants put him on the track of an action, Mecredy and Others v. Alexander and Others (2), and the full proceedings in that action with the judgments of the various Courts have, by the process of discovery of documents, been obtained from the plaintiffs. The action referred to dealt with a several fishery in the inland waters of the Erne which came within the literal words of the grant--the identical grant with which this case is concerned--if it were not qualified by reference to the previous title of Thomas Connolly. For the jury
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found that the several fishery in question had never been enjoyed by Thomas Connolly but had, prior to the date of the Landed Estates Court Conveyance, been in the possession fo the Marquis of Ely. There was indeed a remarkable divergence of judicial opinion as to the proper construction of the deed roll. The Court of Common Pleas, Morris C.J., Lawson and Harrington JJ., held that the deed only puported to grant whatever fishery for salmon Connolly had. The Court of Appeal, May C.J., FitzGibbon and Deasy LL.J. (Lord Chancellor Nash dissenting), reversed this decision and held that the purchaser under the deed roll obtained a parliamentary grant to the fishery in question quite irrespective of the previous title. The case went, however, to the House of Lords and the Lord Chancellor interpreted the words of the deed poll by holding "that what is given before is part and parcel of the same thing which is here again described but described in terms showing that everything which Thomas Connolly had and nothing more was mean to pass." Lords Blackburn, Watson, Bramwell, and Fitzgerald agreed with the Lord Chancellor and unanimously reversed the decision of the Court of Appeal in Ireland. At the hearing before us it was sought to extract from the additional reasons by Lord Blackburn a view that he did not adopt the construction that the grant was to be interpreted by reference to the title of Thomas Connolly. We do not think that this inference is correct but certainly but certainly there is no ambiguity in the views of Lord FitzGerald, who said :--"My Lords, looking at the subject-matter of this conveyance by itself, I entirely agree in all that has fallen from the noble and learned Earl on the Woolsack, and I adopt his conclusion that what was described here, and what was intended to be conveyed, is not in general and exclusive fishery from one end of the River Erne to the other from its source to its mouth but that fishery which Thomas Connolly had, and which it appears equally clearly from the conveyance was in the hands of the lessees." We adhere in this point to the opinion which we have previously expressed, and we are happy in a matter of such moment to find that we are fortified by the views of the eminent authorities we have named, embodied in a decision of the House of Lords fifty years ago. There is one further point upon the construction of the deed which we desire to notice as it was made the basis of an argument put before us. It was suggested that the deed poll granted the several fishery de facto enjoyed by Thomas Connolly--that there was no doubt that Thomas Connolly was de |
facto in enjoyment of his fisheries in question and that he had accordingly an indefeasible title to these fisheries. The point is dealt with by the Lord Chancellor, who referred to the great difficulty in establishing the title to fisheries, and he says :--"If the purchaser knows that he takes a title which is not indefeasible, and is content to take it, ni injustice is done to him, although he does not get the benefit of an indefeasible title which--if the title ahd been established in such a way as to justify the Court in granting it--he might have had." And again he says : "It may well be that for excellent reasons the Court may qualify the description of that subject in such a way as, on the one hand to prevent the conveyance from taking away the right of third parties, who have never been put upon proving them, or establishing them, and against whom probably no claim whatever has been made, and to whom therefore no notice was necessarily given, and, on the other hand, taking away from the purchaser any portion of those rights which Mr. Connolly might have been able to give him." Accordingly the plaintiffs have acquired under the Landed Estates Court Conveyance any fishery rights to which Thomas Connolly could have made title. This consideration opens up a second brance of the case which, indeed, occupied the greater portion of the hearing before Mr. Justice Johnston. It has been admitted by the Attorney-General and has been in fact proved (because at the hearing proof was in fact insisted upon by the special defendants), that since the beginning of the Reign of James I the plaintiffs and their predecessors in title have been in possession of the fishery in question. The Attorney-General has not disputed that the title of the plaintiffs can be traced to numerous Crown leases, grants and patents made at various dates between 1603 and 1639, but he contends that under the law applicable the plaintiffs have not shown any right in law to the several fisheries in question. If the law really were as stated in the Case of the Royal Fishery of the Banne (1), heard in Mich. T., 8 Jacobi, and reported in Sir John Davies' Reports, Dublin edition, 1762, p. 149, the plaintiffs' would be very clear. For the second point stated at p.152 to have been resolved is :--"Secondly, there are two kinds of rivers, navigable and not navigable. Every navigable river, so high as the sea flows and ebbs in it, is a royal river, and the fishery of it is a royal fishery, and belongs to the King by his prerogative ; but in every other river not navigable,
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and in the fishery of such river, the ter-tenants on each side have an interest of common right. The reason for which the King hath an interest in such navigable river, so high as the sea flows and ebbs in it, because such river participates in the nature of the sea, and is said to be a branch of the sea so far as it flows . . . Also the King shall have the grand fishes of the sea, whales and sturgeons, etc., which are royal fishes, and no subject can have them without the Kings's special grant . . . And that the King hath the same prerogative and interest in the branches of the sea and navigable rivers, so high as the sea flows and ebbs in them, which he hath in alto mari, is manifest by several authorities and records." And at p. 155 : "And although the King permit his people, for their ease and commodity, to have common passage over such navigable rivers, yet he hath a sole interest in the soil of such rivers, and also in the fishery, although the profit of it is not commonly taken and appropriated by the King, if it be not of extraordinary and certain value, as the fishery of the Banne hath at all times been. . . . Wherefore it was resolved, that the River Banne, so far as the sea flows and ebbs in it, is a royal river ; and the fishery of salmon there is a royal fishery, which belongs to the King as a several fishery . . ." The Case of the Royal Banne (1) as reported by Sir John Davies contains the resolutions of the Chief Judges of Ireland, members of the Privy Council, to whom the question was referred by the Lord Deputy. In substance the opinion of the Judges was that the fishing in every tidal navigable river in the kingdom belonged to the King by virtue of his prerogative and that he had the sole right therein. The Judges did not seem to advert to the possibility that the King was, or ever had been, limited in any way by the Magna Charta. This statement of law as expounded in the reign of James I in Ireland is quite at variance with the law laid down in modern times by cases of the highest authority decided by the House of Lords. Yet such was the temper of the time that, even if we turn to Coke's exposition of Magna Charta contained in his Second Institutes, we find in reference to Chapter XVI--the portion dealing with fisheries--that he limits himself to these words :--"This statute, saith the Mirrour, is out of use," and he quotes from the Mirrour words to this effect. Coke himself did not venture to say that Chapter XVI of Magna Charta was heeded in the least. This statement of the law was given effect in the Inquisition of Rathmullen, 1 Jacobi (5th |
September, 1603), by which it is found that "the regalities and all the fishings of the bays, ports or rivers of Donegal and Callbeg (in the County aforesaid) up to the limit of the flow of the sea of those rivers belong and appertain to the said Lord King in right of his crown (by virtue of the statute in that behalf enacted)." And it is similarly found "that all the fishings and fishing weirs of the lough pool and river called Loughearne (as well as eels as of other fish) and also all the fishings as well of salmon and herrings as of other fish in the ports or Bays of Ballyshannon and Bundroyse (with all other neighbouring places ; bays and ports in which in which fish are wont to be caught) belong and appertain to the said Lord the King in right of his crown and from the said Lord the King for a long time are concealed and unjustly withheld and they are worth yearly besides deductions 20s. sterling." It will be necessary to return to the consideration of this Inquisition, but we refer to it now because it is obviously based upon the view of the law stated in Davies' Reports. There is, however, no question as to the law which we must apply, as it has been declared several times in the House of Lords. The Great Charter was transmitted to Ireland in the reign of Henry III in a form somewhat different from that published by King John in England, but the latter has for centuries been held to apply to Ireland. Poyning's Act applied to Ireland the statutes lately made in England, and this description will include the statutory confirmations of the Great Charter made at various times in England. Magna Charta prohibited the recognition of a several fishery in tidal waters unless the several fishery had prior to the death of Henry II existed as the possession of some private individual, or unless the public had already at that date been excluded by the Crown. In Malcomson v. O'Dea (1), dealing with a several fishery in Ireland, the provisions of Magna Charta on the subject-matter in hand were fully dealt with , and affirmed as law. The same statement of the law will be found in Neill v. Devonshire (2). In this case Lord Blackburn (3) quoted with approval this passage from Malcomson v. O'Dea (1) :-- "It is not law, and this can never be too often repeated, that the Crown cannot grant a several fishery in tidal waters since Magna Charta. Such a statement is illusory and contrary to law. It can grant a several fishery in such waters since Magna Charta, if that fishery existed before Magna Charta. If a tidal river in which there
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was prima facie a right in the public to fish was appropriated by an individual or by the Crown before Magna Charta, that the individual or the Crown, if the Crown has got it back, can grant it after Magna Charta." Under the law as now authoritatively laid down, in order to sustain their claim to the several fishery the plaintiffs must prove as a matter of fact by reasonable evidence that a several fishery in the tidal waters, the subject-matter of this action, was appropriated by the Crown itself or was in fact possessed by some one else prior to the year 1189. Willes J. in the opinion of the Judges delivered in the House of Lords in Malcomson v. O'Dea (1) explains the kind of evidence that is reasonable proof of a fact reaching back far into the dim recesses of the past. He says :--"If evidence be given of long enjoyment of a fishery, to the exclusion of others, of such a character as to establish that it has been dealt with as of right as a distinct and separate property, and there is nothing to show that its origin was modern, the result is, not that you say, this is a usurpation, for it is not traced back to the time of Henry II, but that you presume that the fishery being reasonably shown to have been dealt with as property, must have become such in due course of law, and therefore must have been created before legal memory." There is, however, an insuperable difficulty in the way of holding that any such separate fishery was appropriated by the Crown as far back as the year 1189, and the plaintiffs do not suggest that any such appropriation was made. It is a matter of historical knowledge that Tirconnaill was not conquered by England for almost four hundred years after the death of Henry II. In the Case of Tanistry (2), heard in Hil., 5 Jacobi, Sir John Davies' Reports, Dublin Edn., 1762, at p. 101, it is stated : "But as to the introduction of the common law of England into this Kingdom of Ireland, it is to be observed that as this island was not fully conquered and reduced to subjection of the crown of England, all at one time, but by parcels, and in several ages ; so the common law of England was not communicated to all the inhabitants, simul et semel, but from time to time, and to special persons and families of the Irishry, to whom the King was pleased to grant the benefit and protection of his laws." The submission of Manus O'Donnell, Chief of Tirconnaill, in 35 Henry VIII is the earliest date at which it is suggested that in reality and in fact Tirconnaill became subject to the Crown of
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England. The date at which English law was first extended to Tirconnaill may be gathered from the citations made in the Case of Tanistry (1) (Sir John Davies' Reports Dublin Edn., 1762, p. 106). After citing 40 Ed. 3, he goes on to say :-- "And although by the same statute of Kilkenny, the Brehon law, which was the common law of the Irishry, was declared to be no law, but a lewd custom, yet it was not utterly abolished among the Irish, but only defended and prohibited to be used amongst those who were of English race, and the Irish were left at large, to be ruled by their barbarous customs as they were before. "After the making of this statute of Kilkenny, in all other statutes made in the time of the several kings, until the time of Hen. 8., where any mention is made of the troubles and wars in this kingdom, the English are called rebels, and the Irish are called enemies. "But after the Act of 33 Hen. 8. C. I. By which it is recited, that although the King of England, by the name of Lord of Ireland, had all manner of royal power and jurisdiction in his land, yet inasmuch as he had not assumed the name and stile of King, the Irish inhabitants of this realm had not been so obedient to the King of England and his laws as by right they ought to be ; wherefore it is enacted that king Hen. 8., his heirs and successors, should always be Kings of Ireland, and have the name stile and title of king in this land, with all honours prerogatives and dignities appertaining to the state and majesty of king, as united and annexed to the imperial crown of England. After the making of this Act, the said difference of English rebels and Irish enemies is not to be found of record, but all the mere Irish were from thenceforth accepted and reputed subjects and liege-men to the kings and queens of England, and had the benefit and protection of the law of England, when they would use or demand it." Sir John Davies interprets this Act, 33 Hen. 8., as extending the law of England to the whole of Ireland--including Donegal. So far as the English King and the Legislature had power to apply the law of England this statute (in our opinion) did apply it. There is no doubt that the statutes dealing with the dissolution of monasteries were held to apply to Tirconnaill--as witness the Inquisition of Assaroe held in 1588. But legal declaration is not the same thing as actual fact, and it is a matter of historical knowledge that large portions of Ireland did not in fact
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adopt the use of English law. To continue the quotation from the Case of Tanistry (1) :-- "And to the end that the law of England might have a free course in and through all the kingdom of Ireland (as it is expressed in the stat. 11 Eliz. c. 9), it was provided in several parliaments, viz. 3 & 4 Phil. & Mar. c. 3 and 11 Eliz. c. 9, that commission should be awarded and all the Irish countries which were not shire-ground before, reduced to shires and hundreds : and accordingly in the several governments of Thomas, Earl of Sussex, Sir Henry Sidney and Sir John Perrot, not only the Irish territories in the confines of Leinster, but also the entire provinces of Connaught and Ulster, being out of all shire-ground before, were divided and distinguished into several counties and hundreds, and several sheriffs, coroners and justices of the peace, and other officers and ministers of the law of England, have been from time to time constituted in these counties, by several patents and commissions under the great seal of Ireland ; and by this means the common law hath been communicated to all persons, and executed through all this kingdom for several years passed." When the Case of Tanistry (1) was heard in Dublin in Hilary Term, 5 Jacobi, Donegal had been shire-ground for many years. This event, as is stated in evidence, occurred in the year 1854, as a sheriff had been sent to the town of Donegal with troops to protect him. If it was not possible to carry these statutes into complete execution nevertheless, according to the law of Ireland, the English law as in vigour in Ireland or parts of it had been proclaimed to extend to the newly-formed country of Donegal before the advent of James I to the throne. It may be of interest to quote one more paragraph from the Case of Tanistry (p. 108) (1) :-- "Lastly, our lord the King who now is, by a special proclamation, in the third year of his reign, declared and published that he received all the natives of his kingdom into his royal protection, etc., by which it was clearly resolved that the common law of England is now established universally through all this kingdom of Ireland, and that all persons and possessions within this kingdom ought to be governed by the rules of this law, and that every subject shall inherit this land in Ireland by the just and honourable law of England, viz. in such a manner and by the same law by which the king inherits the crown of Ireland. And by these decrees the common law was introduced and established in this kingdom." |
The application of English law, even at a date after Magna Charta, to new territory includes the provisions of Magna Charta dealing with fisheries in tidal waters, and consequently an appropriation by the Crown cannot in such a case be lawfully made. This prnciple is fully recognised in Attorney-General for British Columbia v. Attorney General for Canada (1), where it is expressly stated that the application of the law of England to a territory not previously subject to this law involves that the public right of fishing in tidal waters can be ousted only if there has been there has been an appropriation against the public at some time anterior to the death of Henry II. The claim which is, however, put forward by the plaintiffs is that the evidence justifies an inference that the fishing in tidal waters of the river Erne was, prior to the year 1189, appropriated into private lands, and that the grant by the Crown in the reign of king James is not a creation, or attempted creation, of a several fishery, but is a transfer of property which had been in private hands prior to the death of Henry II and which subsequently came into possession of the Crown. If these facts can be substantiated the case falls within the very terms of the principle already quoted from the speech of Lord Blackburn in Neill v. Devonshire (2). The plaintiffs have proved that they and their predecessors in title have been in exclusive possession of the several hundred years. This possession must be of enormous weight and no Court could, save for the strongest and most convincing reasons, ascribe an enjoyment so long continued to an illegal origin. In England or that part of Ireland where English law has prevailed since the coming of Henry II the mere fact of such possession should be ascribed to a legal origin and therefore to an appropriation prior to the death of Henry II and those who might seek to contest the legality of the origin should do so by clear and manifest proofs. In a land such as was Tirconnaill, not subject to English law, the subsequent possession has not the same weight in proving the fact required to make the origin legal in English law, viz., an appropriation into private hands during the period 1189 to 1603--but nevertheless such long continued possession justifies every assumption which can be made in support of a legal title. We cannot help feeling that the plaintiffs' title, if it rested upon long continued possession alone, would be stronger than possession founded upon a grant from the Crown subsequent to the Inquisition of
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