An exclusive right was claimed to the eel-fishing over the whole of Lough Neagh, a large navigable non-tidal inland lough in Ireland by the holders of a long lease, who were in right of a title to the fishings conferred by the Crown in 1661. The title of the Crown had been previously affirmed in certain inquisitions. The claimants and their authors produced some leases of the fishings in the lough, and proved occasional payments made in respect thereof at various dates since the date of the Crown grant. It was proved in defence, and not disputed, that the public had for centuries fished for eels habitually and continuously in the lough as of right. Judgment in favour of the lessees was affirmed by the Court of Appeal in Ireland (Sir S. Walker, L.C., Fitzgibbon and Holmes, L.JJ). The defendants appealed.
Held: Held that the public cannot prescribe a right of fishing in inland non-tidal waters, and ( diss. the Lord Chancellor, Lords Shaw and Robson) that the claimants had sufficiently established their title to the exclusive enjoyment of the fishings notwithstanding the continuous practice of fishing by the public.
Per Lord Macnaghten-‘The Crown is not of common right entitled to the soil or waters of an inland non-tidal lake. No right can exist in the public to fish in the waters of an inland non-tidal lake.’
Per Lord Dunedin-‘The public cannot have a right to the fishing in question. The Crown may have had a right to it when it granted the patent. The only competitor to the Crown and its patentee must be some other private owner or owners, corporation or quasi-corporation.’
Judges:
Lord Chancellor (Loreburn), the Earl of Halsbury, Lords Ashbourne, Macnaghten, Dunedin, Shaw, and Robson
Citations:
[1911] UKHL 638
Links:
Jurisdiction:
England and Wales
Land, Agriculture
Updated: 23 May 2022; Ref: scu.619210
