THE SUPREME COURT
Appeal No. 122/06
Murray C.J.
Hardiman J.
Geoghegan J.
BETWEEN/
IAN AGNEW AND GEORGINA AGNEW
Plaintiffs/Respondents
and
KAY BARRY, PERSONAL REPRESENTATIVE
OF JOHN BARRY DECEASED
Defendant/Appellant
JUDGMENT of Mr. Justice Geoghegan delivered the 28th day of May 2009
This is an appeal by the above-named defendant/appellant from an order of the High Court (Macken J.) granting the plaintiffs/respondents various declaratory, injunctive and monetary reliefs in respect of alleged interference with the respondents’ rights as owners of a several fishery on the river Blackwater in County Waterford. Incorporating it with a later amended defence, the appellant, for the first time made a counterclaim which I will not at this stage characterize as I will be dealing with it in more detail later. I merely mention it now because the logic and thrust of the learned High Court judge’s reserved judgment inevitably meant that the counterclaim had to be dismissed. Due to some mishap neither in the main order of the High Court or in a short subsequent amending order deleting a particular word is there expressly an order dismissing the counterclaim. However, it was clear from the submissions of both sides at the hearing of this appeal that the counterclaim was being taken as having been dismissed.
I intend first to review the pleadings as they seem to me to be of the utmost importance in this case, not least, in relation to matters of credibility.
The plenary summons was issued on the 19th November, 1999. In the general indorsement of claim the respondents sought a declaration that they were the owners of the several fishery referred to above and particularly described “including the soil of the river bed of that part of the river Blackwater comprised in the several fishery.” They further sought injunctions against trespassing upon the several fishery or the fishing therein or from hindering or impeding the right of access of their servants, agents and licensees to the said fishery and restraining the defendant from carrying out any works or otherwise interfering with the river bank or the river bed in the location of the fishery. The respondents also claimed damages for trespass, nuisance, conversion and slander of title.
The statement of claim was delivered on the 14th March, 2000. It pleaded a documentary title to the several fishery and to the bed of the river at the location of the fishery. It was also pleaded that in so far as part of the fishery abutted land belonging to the appellant that the respondents had a right of access to the part of the fishery along the riverbank on the appellant’s lands for the purposes of fishing. The statement of claim went on to plead interference with the respondents’ alleged several fishery and complained of the carrying out of works by the appellant which were damaging to the fishery. It was also alleged that the right of access already referred to was being interfered with. It was further pleaded that the appellant had denied the respondents’ exclusive ownership and title to the fishery and had purported to himself license fishing rights in part of the fishery to others and that the respondents’ title was thereby slandered. I should have mentioned that until a relatively late stage in the proceedings, the defendant in the action was the above-named John Barry. After his death, the appellant was substituted in her capacity as personal representative.
Following on the delivery of the statement of claim a notice for particulars was served which effectively looked for evidence as well as particulars. With no apologies for the pun, I would comment that the second of the so called particulars sought was in the nature of a legal fishing exercise. The request was the following:
“Please state the basis upon which the plaintiffs are alleged to be the owners in fee simple of the said fishery if based on any documents, facts or matters other than the said conveyance of the 31st December 1955.”
That request was replied to as follows:
“This is primarily a matter for evidence at the trial and is not a matter for particulars. Without prejudice to the foregoing, in addition to the indenture of conveyance dated the 31st December, 1955, the plaintiffs will also rely upon the statutory declaration of Mr. Silcock and the decision of the House of Lords in Neill v. Duke of Devonshire (1882) 8 App. Cas 135. The plaintiffs will also give evidence at the trial of acts of dominion carried out or authorised by them, their predecessors in title, or the agents of their predecessors in title (such as the granting of licences to third parties) and upon the activities of the defendant himself who for a long number of years never disputed the rights of the plaintiffs’ predecessors in title to the Bishop’s Fishery. It was only relatively recently that the defendant sought to suggest that he was entitled to fish at the Bishop’s Fishery as of right or that he was entitled to license others to do so. Any activities of the defendant in relation to the Bishop’s Fishery up to that time were done by virtue of the grace and favour of the plaintiffs or their predecessors in title.”
These particulars give a flavour of what the battleground was between the parties at this early stage in the proceedings. Although the reply to the notice for particulars was apparently not delivered until the 14th August, 2000, the defence was delivered on the same day as the notice for particulars i.e. 20th April, 2000.
The defence as delivered on that date was, for the most part, nothing more than a traverse notwithstanding that it contained fifteen paragraphs. Paragraph 6 and 7 however contained positive assertions which are worth citing in full as they indicate the mind of the defendant (now deceased) at the time. They read as follows:
“6. The defendant is the owner in fee simple of the said lands and is entitled to preclude all persons including the plaintiffs, their servants or agents and licensees from entering upon the same without his consent.
7. The defendant denies that he has no right to fish or to purport to license others to fish in the Bishop’s Fishery as alleged or at all. On the contrary, the defendant is the owner of the said fishery to the extent of one half thereof.”
It is to be noted that there is no suggestion there of any prescriptive profit à prendre. Nor is there set out the necessary matters to be pleaded if such profit was being claimed. Still less is there any sign of a counterclaim. The only alleged legal right to fish pleaded by the defendant is based on the assumption that as owner of abutting land he is the owner of half the river bed i.e. up to the centre line.
There was further exchange of particulars relating to the respondents’ title which I do not propose to set out as the title issue does not form part of the appeal.
In due course, a notice of trial was served dated the 7th April, 2004.
A notice to admit documents dated the 27th May, 2004 was served on behalf of the respondents.
A date was fixed for the trial of the action in January, 2005 but with the consent of the court an amended defence was delivered as late as the 1st December, 2004. That amended defence added three paragraphs and for the first time included a counterclaim. Those additions read as follows:
“16. Without prejudice to the above the defendant claims that if the plaintiffs or their predecessors in title, have at any material time been the owners of the said several fisheries, which is denied, the plaintiffs abandoned those rights through non-use over the last forty years.
17. Without prejudice to the above the defendant claims that if the plaintiffs, or their predecessors in title, have at any material time been the owners of the soil of the river bed of that part of the river Blackwater comprising the alleged fishery or the Bishop’s Fishery as alleged which is denied the plaintiffs have abandoned those rights through non-use over the last forty years.
18. Without prejudice to the above if the plaintiffs have any rights of fishing in relation to waters abutting the defendant’s land or have a right of access to the riverbank on the defendant’s lands, which rights are denied, the plaintiffs have abandoned those rights by non-use over the last forty years.
COUNTERCLAIM
Without prejudice to the defendant’s claims as set out above, the defendant claims that by virtue of continued use of the several fishery the subject of this action, the defendant has acquired rights of fishing in relation to the waters abutting the defendant’s lands.”
It is to be immediately noted from those amendments that even at that late stage neither the word “prescription” nor any cognate word nor the expression “Prescription Act” are anywhere used. That is of some significance because, as I will be explaining, prescription is the only issue left in the case to be determined on this appeal. While no pleading point has been taken, I venture to suggest that no book of pleadings would countenance a claim under the Prescription Act, 1832 (as applied in Ireland by the Act of 1858) to be pleaded in that manner. In my view, the counterclaim has been deliberately framed in a broad general way so as equally, if not more so, to cover a possible adverse possession entitlement to half the bed of the river by the defendants. It is to be further noted that the three amendments to the defence itself all related to an allegation of abandonment by the plaintiffs of their rights. The High Court held against the defendant on the abandonment issue and there is no appeal on that issue before this court. That determination, however, has relevance to the prescription issue.
On foot of those pleadings the action came on for hearing before Macken J. on the 12th January, 2005 and lasted four days. The learned High Court judge found in favour of the plaintiffs/respondents on all of the substantive issues. These were essentially the documentary title of the respondents to the several fishery with attendant right of access, the issue of alleged abandonment and an issue as to whether the deceased defendant had as of the date of the proceedings acquired a statutory prescriptive right to an incorporeal hereditament in the form of a profit à prendre.
On the appeal before this court only the last issue i.e. the prescriptive right issue arises for consideration. In submissions to this court the appellant attempted to include in addition to prescription under the Prescription Act, 1832 prescription under the doctrine of the lost modern grant. It came to be acknowledged that the latter issue had never been raised in the court below and indeed was not referred to as such in the notice of appeal. It is accepted, therefore, that it does not now form part of the appeal. Another aspect of the argument on prescription also disappears on the appeal. If and in so far as it is relevant (a point not altogether satisfactorily clarified) it is accepted that the appellant if she was to succeed at all on the Prescription Act issue it could only rely on the thirty year period and not the sixty year period as referred to in the 1832 Act.
Before returning to the findings of Macken J., in commenting on any relevant case law I think it appropriate to set out the pertinent legislation. I will start by citing the relevant part of section 1 of the Prescription Act, 1832 as follows: 1. No claim which may be lawfully made at the common law, by custom, prescription, or grant, to any right of common or other profit or benefit to be taken and enjoyed from or upon any land of … any ecclesiastical or lay person, or body corporate, except such matters and things as are herein specially provided for,…, shall, where such right, profit, or benefit shall have been actually taken and enjoyed by any person claiming right thereto without interruption for the full period of thirty years be defeated or destroyed by showing only that such right, profit, or benefit was first taken or enjoyed at any time prior to such period of thirty years, but nevertheless such claim may be defeated in any other way by which the same is now liable to be defeated; and when such right, profit or benefit shall have been so taken and enjoyed as aforesaid for the full period of sixty years, the right thereto shall be deemed absolute and indefeasible, unless it shall appear that the same was taken and enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing.”
The next relevant section is section 4 which reads as follows:
“4. Each of the respective periods of years hereinbefore mentioned shall be deemed and taken to be the period next before some suit or action wherein the claim or matter to which such period may relate shall have been or shall be brought into question; and no act or other matter shall be deemed to be an interruption within the meaning of this statute, unless the same shall have been or shall be submitted to or acquiesced in for one year after the party interrupted shall have had or shall have notice thereof and at the person making or authorising the same to be made.”
Put simply, under the law of prescription if the exercise of the alleged right is done with the permission of the owner of the lands to which it is allegedly appurtenant i.e. the servient owner there is no prescription. In this particular case, as will be clear when I deal with the evidence, there were issues of permission raised. These took many forms in that the respondents relied to some extent on solicitor’s letters in alleging permissions though the appellant argued that these permissions were merely conditional and were at any rate ineffective as being unilateral. Various conversations between the original deceased defendant and an American lady who was a predecessor in title of the respondents were also relied on by the respondents. If the appellant could have established a sixty year period within the meaning of the Act, consents not in writing would not have defeated prescription. That is why the sixty year period was being pressed for. It is now accepted, however, having regard to the evidence that, at most, the appellant could only rely on the thirty year period which in turn would be defeated by an oral permission. But as I have already hinted, questions then arose as to what really constituted permission.
It will be noted from the citation of the terms of section 4 above, that the thirty year period is calculated by reference to a terminus rather than to a commencement i.e. it has to be thirty years continuously prior to the institution of the proceedings. Having regard to the evidence this also presents problems for the appellant and that is why there was a last minute attempt at the stage of the submissions for the appeal to introduce the doctrine of the lost modern grant. The prescription for the purposes of that doctrine is not required to terminate at the date of the commencement of the proceedings. In other words it could be an earlier period. But as I have already indicated that issue cannot now be raised on the appeal.
I move to the judgment of Macken J. For the most part, I will be referring only to the parts of that judgment which deal with the Prescription Act issue. In the introductory section of her judgment, however, the learned High Court judge explains that the river Blackwater is a well known river, partly in County Waterford on which for many years there had been substantial fishing and/or fishing rights of one kind or another. She points out that the particular several fishery the subject of the dispute in these proceedings was originally owned by the Duchess of Westminster who in turn had purchased it from a company established by the Duke of Devonshire owner of Lismore Castle. All the relevant lands would originally have formed part of that estate. The part of the river in question adjoins the lands on which stand Lismore Castle to the east, Glencairn Abbey to the west as well as the properties of both the respondents and the appellant in her personal representative capacity which are in between the castle and the abbey. She goes on to explain how the respondents live in a house known as Fort William, the lands of which abut the river and that the appellant’s lands include the house known as Glencairn which on their northern boundary also abut the southern bank of the river. The judgment then refers to the deceased defendant’s father having purchased the lands which adjoin on their northern boundary the river pursuant to a conveyance of the 4th June, 1924. She quotes the parcels in the conveyance which do not mention the several fishery. She ultimately finds that any fishing by the Barrys on the river only commenced some time in the 40s.
The oral evidence established that the respondents had purchased their house and lands in 1996 and this purchase included the fishing rights. In negotiating the purchase he had had discussions with a Mr. Anthony Cross, the Fort William estate manager, who had informed him that Mr. Barry (the deceased defendant) fished on the river but Mr. Agnew was given to understand that the fishing by the Barry family was with the permission of the Agnews’ predecessor in title Fort William Estates Limited. It became clear in the 1990s that the late Mr. John Barry did not acknowledge that the exclusive fishing rights vested in Fort William Estates. There was correspondence about this to which I will refer. However, there was never any suggestion of prescriptive rights. It seems clear that Mr. Barry was not accepting that the respondents’ predecessors in title had a documentary or other title to the fishing on his half of that section of river and that in so far as Mr. Barry was claiming any rights it was on the basis of being a riparian owner. Mr. Agnew only became aware that Mr. Barry was claiming a right to fish when it was discovered through an advertisement in a paper that Mr. Barry was letting fishing to outsiders.
Important evidence was then given by Mr. Anthony Cross, Fort William Estate manager which appears to have been accepted by the learned trial judge. He explained that whereas he had taken over the management in 1990 he had known the lands since his father became farm manager of the estate in 1979. There were records of fishing permits in existence at the estate from at least 1967 to 1979 and thereafter. As the farm was not paying its way Mr. Cross’s brief was to bring the fishing up to a better standard. He did considerable work with boulders in protecting the banks of the river. At the time when Mr. Cross became manager in 1990, the only people fishing on the river were his own father, David Barry, a brother of Mr. John Barry and two others. It was not being run commercially but there was a small loose syndicate of fishermen. Mr. Cross had advised all the people involved what his brief was and the importance of bringing up the standard of fishing on the river and in particular he advised the two Barrys. He met no resistance whatsoever and he was quite satisfied it would have been understood by Mr. Barry that Fort William Estates owned the fishing rights.
The owners established that an American lady, Mrs. Mitchell, who had a substantial interest in Fort William Estates, regularly visited the estates and that there was a clear understanding that Mrs. Mitchell wanted Mr. Barry and the immediate members of his family not to be excluded from fishing on the river and that they did so with her permission. Matters however were brought to a head by a dispute over removal of gravel from the river bed by Mr. Barry. This would have adversely affected the fishing.
Continuing her summary of the evidence, the learned High Court judge referred to the evidence of Mr. David Barry who said that as far as he knew Mr. John Barry had a loose arrangement with Mrs. Mitchell in relation to fishing as part of the Barry family. He apparently acknowledged that in 1994, Mrs. Mitchell became very concerned as Mr. John Barry was claiming he had fishing rights though Mr. David Barry himself, in so far as Mrs. Mitchell understood the position that Fort William Estates was the sole owner of the fishing rights. Mr. Cross gave evidence that he had heard Mrs. Mitchell giving Mr. John Barry and Mr. David Barry permission to fish. She had said she was happy for them to fish so long as they accepted the fishing rights vested in Fort William but he could not recall the exact words she used. He admitted that he was never actually asked for permission. He had, however, discussed the content of a letter of the 26th July, 1994 from Messrs McCann FitzGerald to Mr. John Barry a letter which I will be citing later in the judgment. He accepted that Mr. David Barry in particular a brother of Mr. John Barry had been fishing since Mr. Cross’s father’s time but that he had always understood the fishing rights belonged to Fort William Estates.
Mr. Cross then gave evidence concerning the numbers of people licensed by Fort William Estates to fish from the Barry lands. He said that about six to eight people fished either on a two weekly or four weekly basis between June and September.
Another brother of the late Mr. John Barry a Mr. Patrick Barry gave evidence that he was born in 1928 and that his father did not engage in fishing. He himself had enjoyed fishing from some time in the early 1940s. He said he never thought about ownership of the river or the river bed, never asked for permission to fish and was never told to move by anybody. Somewhat similar evidence was given by a Mr. William Feeney.
The appellant Mrs. Barry, widow of the late John Barry gave evidence that her understanding had been that as a consequence of the purchase in 1934 her late husband owned half of the river. She disputed the evidence that the Barrys ever sought permission from Mrs. Mitchell to fish on the river. She admitted however that she knew nothing about the meeting between her husband and Mrs. Mitchell in 1994. There was other evidence given that was somewhat inconclusive.
The learned trial judge became satisfied that the documentary title to the river and its fishing supported the plaintiffs’ case and did not provide any support to the defendant’s case. She further held (and this is of significance in relation to the prescription issue also) that there was no abandonment. Indeed the learned trial judge when commencing to treat of the prescription claim commented as follows:
“This is allied with the factual matters underlying the claim that the plaintiffs or their predecessors had abandoned the fishery.”
In rejecting the case for abandonment, she had expressly relied on various strands of evidence indicating that the fishing in controversy was both exercised and licensed throughout the relevant period at different times by the owners and predecessors in title of the Fort William Estate. I will return to this matter when I indicate the learned judge’s final conclusion.
It is important that before I do so, I refer in some detail to the correspondence which passed between the parties respective solicitors in the 90s as already referred to. This correspondence was between 1994 and 1998. The opening letter was dated the 26th July, 1994 and was from McCann FitzGerald, solicitors for Fort William Estates Limited. It read as follows:
“Dear Mr. Barry
In the interest of preserving the good relationship which exists between Mrs. Mitchell of Fort William and you, Mrs. Mitchell has requested us to write to you in connection with the fishery rights on the river Blackwater between, on the north bank, the Ballyvolane Sluice to the Glenmore Stream and, on the South Bank from the Castle Grounds in the East to the Western boundary of Glencairn Abbey. The sole and exclusive rights of fishing and taking fish from that part of the river Blackwater are owned by Fort William Estates Limited (‘company’) it having purchased those rights in the 31st December 1955.
We understand that, in the belief that you had a right to do so you personally have fished part of the South Bank of the river extending from your boundary to the boundary belonging to Glencairn Abbey (and including those boundaries belonging to the Abbey) and have stated to a number of other individuals that they may also fish there. Our clients are quite prepared, as a gesture of goodwill and in furtherance of good relationships with you, to allow you and your immediate family and your brother to fish on that stretch of the river. Our client is also prepared to allow you to honour your commitments by permitting persons to whom who have made such commitment to fish for this season only on that part of the river on which your boundaries lie. In recognition of this concession, our client requests you to acknowledge the company’s ownership of the exclusive right to fish and to take fish from the river between the points which I have mentioned in the first paragraph of this letter. I must also ask you to confirm that you will not purport to give any person, other than the members of your immediate family, any authority to fish on that stretch of the river at any future time.
Yours sincerely
Gerald V. Sheedy, McCann FitzGerald”
No reply was sent to that letter but after an article was published in the Coleraine Times referring to this particular fishery and indicating that the person to contact was Mr. John Barry, Fort William Estates wrote to Mr. Barry in an undated letter but which was obviously written in early 1995. The letter contained a polite protest at the advertisement and reiterated that Fort William owned all the fishing rights exclusively. The letter, however, went on to confirm by reference to the previous letter that
“You and your immediate family and your brother David are most welcome to fish the river, whilst giving due consideration to anglers who have a booking to fish at that time. However, that concession is made exclusively to you and your immediate family and your brother.”
Again, no reply was elicited. A second solicitor’s letter was written on the 21st June, 1995 complaining about interference with licensees of Fort William Estates on the river but containing the following final paragraph:
“We write to assure you that our client wishes to continue to offer to you the facility of fishing on this stretch of the Blackwater. We also request you to refrain from causing any obstruction or interference to any person who are also fishing there at the invitation of our client and on foot of a licence issued to them. Your cooperation would be much appreciated.”
There was no immediate reply to that letter either but at last a letter of the 18th April, 1996, was written by Messrs Anthony Carroll and Co., solicitors of Fermoy, acting for Mr. John Barry. It is important to cite the letter in full:
“Dear Sir
We have been consulted by Mr. John Barry of Glencairn who is a riparian landowner adjoining the Fort William Estate which has recently been offered for sale.
Over many years Mr. Barry and his father before him have enjoyed uninterrupted fishing from their lands in the river Blackwater but he now understands that this fishing is being offered for sale. Mr. Barry does not want any difficulty with the new owner and he does not wish to affect the sale of the property since he enjoyed a good relationship with the late Mrs. Mitchell and her managers over the years. His concern however to protect his own position and has asked us to write to your firm pointing this out.
Can you please therefore confirm that Mr. Barry’s fishing is not in any way affected.
We await hearing.
Yours faithfully”
That has all the hallmarks of a carefully written non-committal letter. Nowhere in it does it allege that Mr. Barry has a right to the several fishery. Mr. Barry’s interest sought to be protected is expressly stated to be that of a riparian landowner. But it is completely ambiguous as to whether the protection sought is in relation to a documentary claim by virtue of the riparian ownership or a protection of the general neighbourly permission which Mr. Barry was accustomed to enjoying. Certainly, if there was any suggestion of a prescriptive right Messrs Carroll and Co. would have had to advise their client to institute immediate proceedings seeking a declaration of the prescriptive right to what would be in incorporeal hereditament.
The ambiguities in the letter from Anthony Carroll and Co. were identified and noted by McCann FitzGerald in a replying letter of the 22nd April, 1996. That letter reads as follows:
“Dear Sirs
We have received your letter dated 18th April 1996.
In order to preserve good relationships between your client and the late Mrs. Mitchell, permission has been granted by our client to Mr. Barry and to his immediate family and to his brother to fish that part of the river Blackwater between, on the North Bank, the Ballyvolane Sluice to the Glenmore Stream and on the South Bank from the Castle Grounds in the East to the Western boundary of Glencairn Abbey. We have previously written to your client in that regard and refer specifically to our letter to him dated 26th July 1994.
Fort William Estates Limited owns the sole and exclusive fishing on that stretch of the river, as is evident from the title deeds which we hold. That fact has never been the subject of disagreement between our respective clients.
We are not clear what is meant by the expression that your client’s concern is ‘to protect his own position’. The availability of that part of the river to Mr. Barry for fishing is based on the permission which has been granted to him by our clients. That permission will, necessarily, terminate when the property is sold. We are quite prepared to use our best endeavours to assist your client in making an arrangement with the new owner to replicate the current arrangement. However, it will be a matter for your client to agree with the new owner the nature and extent of the access, if any, to be granted to your client to the river.
Yours faithfully
McCann FitzGerald”
Again, if there was any reality at all in the prescriptive right claim, Mr. Barry would have been advised at that stage by Carrolls to institute immediate proceedings. He did not do so.
I do not propose to go through all the correspondence. In the next letter of the 15th May, 1996, Mr. Barry’s solicitors sought information about the documentary title of Fort William Estate. That information was given in a later letter. Subsequently, Mr. Barry moved to Arthur Cox, solicitors and correspondence ensued with them in relation to the title. At this stage, the fishing rights had been assigned to the respondent. As late as a letter of the 7th September, 1998, Messrs Arthur Cox were arguing;
“There is nothing in our clients’ title to indicate that they ever lost the fishing rights from the land which adjoins the river and there is no evidence again in their title as to how the Duchess of Westminster could claim to be so entitled.”
It is obvious therefore that Mr. Barry is simply asserting that he had a right to fish as a riparian owner. After that relationship broke down, the nature of the title was again explained to Arthur Cox in a letter from McCann FitzGerald dated 23rd October, 1998. That letter included the following paragraph:
“You may not be aware that by concession from the former owner of Fort William and also by concession from our clients, Mr. Barry and his immediate family have been permitted to fish in that part of the river Blackwater which has been the subject of our correspondence.”
Eventually, as a result of further breakdown in relationship in the correspondence, these proceedings ensued.
That brief survey of the correspondence is relevant to the view which the learned trial judge ultimately took. I intend to quote exactly what she said and then express my understanding of it. The part of her judgment towards the end relevant to her conclusions on the prescription issue reads as follows:
“There remains, however, the question of the defendant’s claim to prescriptive ownership of the fishery through use. This is allied with the factual matters underlying the claim that the plaintiffs or their predecessors had abandoned the fishery. On the question of use by the defendant or her predecessors in title, the evidence can be divided into separate parts. First there is evidence of fishing on the river from the Barry lands themselves. This was given in evidence by Mr. Flynn, Mr. Patrick Barry and Mr. Feeney, as well as by Mr. David Barry and by Ms. Ann Barry. The evidence of Mr. David Barry and of Ms. Ann Barry as to their fishing relates to a period subsequent to 1975 or later, within a period of 30 years from the commencement of these proceedings. Mr. Patrick Barry and Mr. Flynn both gave evidence of fishing from the 1940s in the one case and from the 1950s in the other. Mr. Dwyer suggested it was 1939, but I think this was because of the suggestion by one or other witness that he was ten or eleven at the time he started fishing on the river. However, the earliest actual dates suggested were 1940 or 1941 or ‘in the 40s’ when Mr. Flynn went with his father who was fishing, but he himself fished from ‘1950’. In such circumstances the 60 year prescription period provided for in the Prescription Act, 1982 was not met. It is true Mr. Dwyer argued that the defendant’s claim to thirty year continuous use was not challenged. But Mr. Foley for the plaintiff argued that the requirement is for continuous 60 year use on a correct interpretation of the said Act. I agree, and in the circumstances I do not find that the defendant has established, as she must do, that there has been use by the defendant, without the consent of the plaintiffs or their predecessors in title, for the requisite period, on a continuous basis, such as to be able to rely on the principle of prescription.
Although I do not think the issue essential to the resolution of the dispute between the parties in this case, having regard to the evidence and the submissions, I should say something about the question of the consent of Mrs. Mitchell to the Barry family to fish on the river. I am satisfied that this was a proper consent or permission, notified to Mr. John Barry, and also to Mrs. Barry, and to Mr. Barry’s brother, David. It is not possible to come to a concluded view on the exchange of correspondence, but it is possible to say, without that, that had Mr. John Barry, or his solicitors, been of the view that he had a legal right to fish, pursuant to his title documents, or even pursuant to a legal right acquired by prescription, it would have been perfectly natural for him to have taken steps to have protected any of those rights by appropriate means, and he did not do so. The suggestion that he was friendly with Mrs. Mitchell and therefore did not wish to cause any difficulties represents a proper respect towards a woman who had been a neighbour for many years. Nevertheless, Mrs. Mitchell had died, and in fact it was the company which was selling the lands, and it seems extraordinary that there should have been any hesitation, if it were genuinely the case that Mr. John Barry had such legal rights. It is also surprising that Mrs. Barry, who could remember many small details, could remember nothing about any discussions concerning this matter, or any real detail from the correspondence, or assist the court in any other way. I am satisfied that it is unlikely that one could conclude from the correspondence on behalf of Mr. John Barry that he did indeed have, or consider he had a good legal title to the river bed, or any part of it, or to fishing rights. But of course I do not have to decide this. In view of my findings on other issues, however, I do not consider it useful to reach any more conclusive view on the status of such a consent.”
I am satisfied that the learned High Court judge was legally correct in her conclusions. I think that my own reasons for coming to that conclusion corresponds with hers but I am not entirely certain of this and that is partly why I have set out her conclusions so fully in her own words.
My analysis of her findings is as follows. The learned judge seems to find as a fact that there was what she describes as a “proper consent or permission”. Irrespective of whether that can be regarded as a primary finding of fact or an inference drawn from the facts, I am satisfied that this court ought not to interfere with that finding and, at any rate, I do not disagree with it. Once there was a “proper consent or permission notified to Mr. John Barry and also to Mrs. Barry and Mr. Barry’s brother, David” that is the end of the matter. If the 60 year period had applied, such a consent would have to be in writing and in that event there would have been an argument as to whether any of the letters from McCann FitzGerald constituted an operative permission. There are undoubtedly legitimate arguments relating to the correspondence as to whether any permissions contained therein were conditional and in that sense not operative in the absence of the condition being accepted or unsolicited and as to whether in such circumstances an unsolicited permission interrupts an inchoate prescriptive claim. I will have something more to say about this last point before I complete the judgment. However, the learned High Court judge seems to accept that there was oral permission from Mrs. Mitchell at least. That would be sufficient. She prefaces that finding however by the words “Although I do not think the issue essential to the resolution of the dispute between the parties in this case”. This would clearly suggest that she was regarding the permission issue as a secondary ground for dismissing the action. As I interpret her judgment, her primary finding is that having regard to the overall conduct of Mr. Barry combined with her finding of non-abandonment of the fishery by the appellants and their predecessors in title, Mr. Barry was never really prescribing at all whether inchoately or otherwise. I very much agree with the learned judge also that the correspondence already referred to and partly cited would lead any reasonable person to believe that Mr. Barry never considered that he had as she puts it “a good legal title to the river bed or any part of it or to fishing rights.” It would seem to me also that even if Mr. Barry did at times think or even hope that as a riparian owner he had such rights he was still not making an inchoate claim to a prescriptive right. On the wording of section 1 of the Prescription Act, 1832 which I have cited early on in this judgment the section refers only to a “right, profit, or benefit” “actually taken and enjoyed by any person claiming right thereto”… etc. In my opinion, the word “thereto” is of importance. That section is not in any way dealing with ownership of land or corporeal rights. It is dealing with incorporeal rights and, therefore, the word “thereto” can only refer to a claim to a profit à prendre. All the evidence indicates that Mr. Barry and his family fished either pursuant to permission, which is really what the learned judge found, or conceivably pursuant to a belief or hope that their ownership of the land extended to half the river bed. But, at any rate, that bank of the river was not exclusively fished by the Barrys and their licensees and I do not believe that in all the circumstances they could legitimately claim a prescriptive right and I am, therefore, in agreement with the conclusions of the learned High Court judge.
It may seem at first surprising that I can come to a conclusion like this without citing any authorities other than the relevant sections in the 1832 Act. I note that on the prescription issue the learned High Court judge, like me, has not found it particularly useful to refer to any authority. Although a large number of authorities had been included in the books of authorities lodged, none of them, it would seem to me, on their facts are sufficiently analogous to be of any assistance. An interesting discussion did arise at the oral hearing of the appeal as to the question of unilateral unsolicited permission. The question was posed as to whether, if just before the completion of 30 years of enjoyment of user, a notice was placed on the relevant lands giving permission, would that prevent a prescriptive right arising? Cases such as BP Properties Limited v. Buckler (1987) 55 P & CR 337, Rafique v. Trustees of the Walton Estate (1993) 65 P & CR 356 and O’Mara v. Gascoigne (1996) 9 VPR 60 were particularly referred to together with an article in (1994) Conv. 1996 by a Professor Wallace on “Limitation Prescription and Unsolicited Information” in which contrary to that case law just cited, he queried the proposition that unsolicited permission would be sufficient. I do not intend to express any definitive view on this point because I do not think that in the end it is relevant to this case. My general inclination would be to hold that each case depends entirely on its own facts and that a court in the particular circumstances and in the particular context of any one case has to determine whether an alleged permission is an operative permission or not. That obiter remark is all I intend to say on the subject.
For the reasons indicated, I would dismiss the appeal.
Agnew & anor. v. Barry
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