William Malcomson, - Appellant; John O'Dea and Others, - Respondents
| Jurisdiction | England & Wales |
| Judgment Date | 28 July 1863 |
| Date | 28 July 1863 |
| Court | House of Lords |
English Reports Citation: 11 E.R. 1155
House of Lords
Mews' Dig. vi. 635, 643, 660; vii. 86, 95. S.C. 9 Jur. N.S. 1135; 9 L.T. 93; 12 W.R. 178. On point (i.) as to fishing in navigable rivers, followed in Edgar v. English Fisheries Commissioners, 1870, 23 L.T. 736; and Neill v. Devonshire, 1882, 8 A.C. 138; (ii.) as to presumption of Crown grant, followed in Goodman v. Mayor of Saltash, 1882, 7 A.C. 651; (iii.) admissibility of ancient documents in evidence, applied in Blandy-Jenkins v. Dunraven (Earl of) (1899), 2 Ch. 121.
Several Fishery - Navigable River - Crown Grant - Entries of Payment of Rent - Bill and Answer in Chancery - Evidence.
[593] WILLIAM MALCOMSON,-Appellant; JOHN O'DEA and Others,-Respondents [July 3, 4, 10, 11, 1862; February 24, July 28, 1863]. [Mews' Dig. vi. 635, 643, 660; vii. 86, 95. S.C. 9 Jur. N.S. 1135; 9 L.T. 93; 12 W.K. 178. On point (i.) as to fishing in navigable rivers, followed in Edgar v. English Fisheries Commissioners, 1870, 23 L.T. 736; and Neill v. Devonshire, 1882, 8 A.C. 138; (ii.) as to presumption of Crown grant, followed in Goodman v. Mayor of Saltash, 1882, 7 A.C. 651; (iii.) admissibility of ancient documents in evidence, applied in Blandy-Jenkins v. Dunraven (Earl of) (1899), 2 Ch. 121.] Several Fishery-Navigable River-Crown Grant-Entries of Payment of Rent- Bill and Answer in Chancery-Evidence. The soil of navigable tidal rivers, so far as the tide flows and reflows, is prima facie in the Crown, and the right of fishery therein is prima- facie in the public. But the right to exclude the public therefrom, and to create a several fishery, existed in the Crown, and might, lawfully, have been exercised by 1155 X H.L.C., 594 MALCOMSON V. o'DEA [1862-63] the Crown before Magna Charta, and the several fishery could, lawfully, be afterwards made the subject of grant by the Crown to a private individual. Where a grant of a several fishery had been made by the Crown to a corporation, and rent received by the Crown in respect thereof for a long period of time, the earliest grants describing it as " an ancient inheritance of the Crown," it was held that the lawfulness of the origin of the several fishery might be presumed. There was a dispute as to the limits of the fishery. In an action against alleged trespassers, the Plaintiff, the lessee of the corporation, tendered in evidence the Bill and Answer in Chancery in a suit instituted a great many years before by another grantee of the Crown against the corporation, and in which the limits of the alleged fishery were described: Held, that as part of the history of the fishery and of the claims made to it, the Bill and Answer were admissible in evidence. The Plaintiff also tendered in evidence an " Assembly Book," belonging to the corporation, dated in 1676, and containing entries of the rents due to the corporation from its various tenants, among which were entries of rents paid in respect of this fishery: Held, that the book was admissible as an ancient document showing the exercise of acts of ownership. The Plaintiff also tendered in evidence, for the purpose of showing the meaning of a particular phrase in the grants, a letter of license from the Crown, in 1676, to one of its grantees, to aliene the subject-matter of the grant: Held, that the license was admissible for that purpose. William Malcomson claimed to be entitled, under a lease from the Mayor and Corporation of Limerick, to a several fishery in the River Shannon, called the Fisher's Stent, extending from a place called the Lax Wear in the [594] east, to the River Meelick in the west ;* and he complained that the Defendants had entered his said several fishery and taken away his fish. The Defendants pleaded several pleas, which in substance alleged that the Shannon was a public navigable river, and that the locus in quo was part of the same. The Plaintiff put on the record several i eplications to the Defendants' pleas, the most material of which were to the tenth and eleventh defences, and alleged that the locus in, quo was a several fishery, and an ancient possession of the Crown, which became vested in the Mayor and Corporation of Limerick, and that they, by lease of January 31, 1834, demised the same to Poole Gabbett for 99 years, through whom the Plaintiff derived title. Fifteen issues were framed; 1. Whether the Defendants had entered the Plaintiff's close; 2. Whether the close was the close of the Plaintiff, or the fish caught therein were the fish of the Plaintiff; 3. Whether the locus in quo was a several fishery; 4. Whether it was the several fishery of the Plaintiff; 5. Whether the Plaintiff had a several fishery within the limits alleged; 6. Whether the locus in quo was outside the limits of the alleged fishery; 7. Whether the fish were the fish of the Plaintiff; 8. Whether the [595] locus in quo was a common public fishery; 9. Whether the public had a common prescriptive right of fishing therein ; 10. Whether the Defendants at the time, etc. had a prescriptive right of fishing therein; 11. Whether the replication to the tenth defence was true in substance and in fact; 12. The same as to the replication to the eleventh defence; 13. Whether the Defendants took away * The River Shannon, for the purposes of this case, may be described as flowing (within the county of Limerick) in a southerly course from St. Thomas's Island, which is above the city of Limerick, where the " Lax Weir " is situated, passing by Island Point to Thomond's Bridge (between which two places the alleged trespass was committed by these Defendants) to the city of Limerick, where it begins to take a westerly course for some distance, and then turns northerly to a part where the River Meelick (which divides the county of Limerick from the county of Clare) falls into it. Some small distance beyond this, and within the county of Clare, is situated Castle Donnell, often referred to in this case, and described by some of the witnesses as popularly known by the name of Cromwell's Castle. It there widens and falls into the sea some distance farther on. 1156 MALCOMSON V. o'DEA [1862-63] X H-L-'C., 596 the fish and converted the same to their own use; 14. Whether the fish mentioned in the ninth paragraph of the declaration were the Plaintiff's fish; and 15. Whether the Defendants were entitled to take the fish on any of the grounds relied on in the first eight defences. The cause came on for trial at Dublin, in February 1858, before the Lord Chief Justice of the Court of Queen's Bench and a Special Jury. There was ample proof that the Plaintiff had title under the Corporation of Limerick, and that the Defendants had committed the alleged acts of trespass. The real questions were, whether the Crown had, in fact, granted within the locus in quo a several fishery to the Mayor and Corporation of Limerick, and whether the Crown had, in law, power to make such a grant. The evidence was in substance as follows: - An Inspeximus Charter, dated in 1414, by Henry V., referring to and confirming previous charters of Edward and John, and granting, among many other things, " the profits of a certain fishery which is called ' Lax Wear,' with its appurtenances, to the same mayor and commonalty [of Limerick], and their successors for ever." That was confirmed in 1423 by Henry VI. In 1576 Queen Elizabeth directed letters patent to issue, called a Fiant, by which she commissioned certain persons therein named on her behalf, to demise for twenty-one years to one Edward Molyneus, at a rent of 53s. 4d., " the [596] wears, commonly called the Fisher's Stent, near the city of Limerick, which do lie from the Lax Wear, or common wear, in the east part, until the river nigh to Castle Donnell in the west part, with all the customs, duties, profits, etc., to them and every of them appertaining and belonging, parcel of Her Majesty a ancient inheritance, and of long time concealed." It was much observed upon that the Crown did not here demise Lax Wear, which it was contended arose from the fact that that had long before been the subject of grant to the Corporation. The demise contained a clause requiring the tenant to maintain and repair the wears during the term, and another to' the effect that if the rent should be in arrear for twelve weeks after any of the days for payment, Molyneux might be made to pay double value, or might be evicted at the pleasure of the Crown. There was an entry of this lease of the Fisher's Stent in the books of the Auditor General, which also contained entries of the payment of the rent. Molyneux was afterwards.evicted, and the mayor and bailiffs made the tenants in his stead. The entry in the books of the Auditor General after this change of tenancy, called Molyneux, " the late farmer of the wears called the Fisher's T'ente, at 53s. 4d. per annum," and it went on with these words of description, " The Mayor and Bailiffs of the City of Limerick, tenants of the aforesaid wears." In 1582 the Queen granted them a Charter which contained an inspeximus and confirmation of that of Henry V. in the very words of Henry'ti Charter, as to the wear and its appurtenances. This was declared to be done in respect of the services of the citizens " in that most wicked rebellion, by Gerald Eari of Desmond." There was a special grant to the mayor, bailiffs, and citizens for ever " of all these wears and pools in the water of Shannon, within the liberties of [597] the said city, called the Lex Werres and Fisher's Stent, with all and singular their profits, etc., and to have, hold, and enjoy all and singular franchises, jurisdictions, privileges, perambulations, grounds, and waste pieces of land called the New Stent, or New Extent, the wears called Lex Weers, gurgites, Fisher's Stent, ingate and outgate customes," etc. Then came the provision for the rent, which was fived at 6s. 8d. a year. There was also a charter of James I. to the City...
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