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H. T. 1859. Of course a right to such several fishery could only be created, Exchequer. originally, by grant from the Crown, and such grant must have been prior to Magna Charta.

O'NEILL

v.

ALLEN.

I shall consider the evidence in the order in which it applies to the legal merits, rather than in the order in which it was unfolded at the trial. In the first place, the result of the evidence was to establish an actual enjoyment, by fishing in the place in question, of the following persons, from the year 1798 down to the year 1857; namely, first, by Felix O'Neill, son of Mark Ker O'Neill the elder; secondly, by Mark Ker O'Neill the younger, brother of Felix, after the death of Felix, which occurred in 1800. By a lease of the 11th of January 1806, Mark Ker O'Neill the younger purported to demise a fishery in the place in question to Sir George Fitzgerald Hill, for three lives or thirty-one years, at a yearly rent of twenty guineas, of which actual proof of payment was given from 1818 to 1831. By a deed of 21st of April 1841, the interest in the lease was acquired by Henry O'Hara, who also became entitled to a moiety of such interest as existed in the reversion, as heir-at-law of his mother, deriving, after the death of her brothers and of her sister, Elizabeth Godfrey, under the will of her father, Mark Ker O'Neill the elder. Proof was given of O'Hara's enjoyment, by fishing in the place in question, and, after him, of the present plaintiff; as to whom it was not disputed in the argument before us that he held under the persons deriving (if there was a title to a fishery at all) the two moieties under O'Hara, and under his mother's other sister, Mrs. M'Manus. During the period between 1798 and 1857, namely, from 1818 to 1857, there was the testimony of several persons, showing two things; first, the enjoyment and user of the fishing at the place in question, by such of the persons whom I have named as, during that time, were in possession; and, secondly, that for forty years of that period, from 1818 to 1857, no one else was ever known or heard of as fishing there, except upon two occasions: one of these was, when a person of the name of M'Naghten fished; the other was, when a person of the name of Little (who appeared to have been the owner of the Bann fishery) sent a boat and a crew,

Exchequer.
O'NEILL

บ.

ALLEN.

who placed a net upon a part of the place in question, in the H. T. 1859. neighbourhood of that fishery; a circumstance which could be fairly accounted for by the facts that the Bann fishery extended to the mouth of the river Bann, and consequently adjoined what was claimed as the plaintiff's fishery; and that the net was placed near the boundary of the fishery in which that person was entitled to fish. It did not appear to have been ever repeated; it was therefore not inconsistent with the absence of an intention to disturb those who were in the enjoyment of what is now claimed as the plaintiff's fishery, and with the absence of an assertion of any public or private right. At all events, whether it was or was not was a question for the consideration of the jury. The assertion of title by M'Naghten, so far from interfering with the title which the plaintiff claims, was, as will presently appear, confirmatory of it. Between 1798 and 1818, the witnesses who deposed to the enjoyment of the O'Neills and their lessee did not, in express terms, say they never knew or heard of anyone else fishing in the place in question; but their testimony is given in the report of the learned Judges, in terms from which that might have been fairly inferred by a jury, especially in the absence of any evidence that any other persons either fished or claimed any right, public or private, of fishing there. It was proved that Felix O'Neill (who must have died before 1806, when his brother Mark made a lease of the fishery) fished with a capstan, which he used to remove every 12th of August. The fishing thus enjoyed was described by some of the witnesses as extending to near the mouth of the river Bann; and it was not disputed that Little's fishery lay within the mouth of that river.

The evidence which I have now stated was absolutely unencountered by a single particle of testimony on the part of the defendant. If this fishing was not enjoyed to the exclusion of the public, nothing could be more easy than to have proved a fishing by others of the public in the same spot, if in fact others fished there. It appeared then that there was evidence of actual enjoyment for a period extending as far back as 1798; that is, there was proof of user given by living witnesses, going back very

O'NEILL

H. T. 1859. near the limits within which it is possible to apply this kind of Exchequer. evidence; and if there was a several fishery existing at the place in question, the testimony which I have stated was evidence for the consideration of the jury, of a continued possession of that fishery for very nearly sixty years.

v.

ALLEN.

The next class of evidence was applied to prove the existence of a several fishery, in the place in question, at a remote period, extending back far beyond the memory of living witnesses, and beginning with the year 1659; perhaps I ought to say that it went back to 1641.

It appeared in evidence that an adventurer's certificate, under the Act of Explanation, 17 & 18 Car. 2, c. 2, was granted by the Commissioners acting in pursuance of the powers conferred by that statute, in favour of Hugh Rowley, finding that certain lands, tenements and hereditaments, therein mentioned, were sequestered, by reason of the rebellion of 1641, and were allotted to Rowley, or to those under whom he claimed, "for their services as soldiers in the late war;" and were, on the 7th of May 1659, in the actual "seisin, possession or occupation of the said Hugh Rowley, or those under whom he claimed, their lessees or undertenants." And the Commissioners accordingly adjudged that "the said Hugh Rowley was lawfully and rightfully entitled to" the lands, tenements and hereditaments described in the certificate. These comprised (inter alia) "the lands of Crossreagh, containing 109 acres of profitable "land, and 120 acres of sand-hills, and a salmon fishery, lying and "being in the parish of Ballyaghran, liberties of Coleraine and "county of Londonderry." The certificate declared Rowley entitled to all the premises in fee, to be holden of the Crown, at certain specified quit-rents; and it directed the certificate to the said secretary to the Lord Chancellor, and to the Court of Exchequer, to the end that effectual letters patent might be granted to Hugh Rowley, in conformity with the Acts of Settlement and Explanation. At the trial, no patent was produced, granting those premises to Hugh Rowley, nor was any evidence given of any subsequent act of Rowley. But the following evidence was given, of dealings in reference to a fishery at a place which the plaintiff alleged was the place in

Exchequer.

O'NEILL

v.

ALLEN.

question. A tracing from the Down Survey showed that a denomi- H. T. 1859. nation of the lands of Crossreagh, comprising 108 acres, in the parish of Ballyaghran (the parish mentioned in the certificate), were situate where a promontory or tongue of land called, in the tracing, "Sandy-hills and Rushee, comprising 102a. Ir. Op.," extended, westward to the mouth of the river Bann. It appeared that the lands of Crossreagh and the Sand-hills formed part of what is now called the "Flower-hill estate," and that the following deeds were found among the documents relating to that estate by Mr. Knox, who had them for twenty years in his custody, as agent of the estate. A lease was produced from the Marquis of Antrim to Archibald Stewart, dated 29th of December 1668, of "the salmon fishing upon the "strand, betwixt Ballyreagh and the mouth of the river Bann, "where the said river falleth into the sea, as the said salmon "fishery is now in the possession of the said Archibald Stewart, "with full liberty to draw all and all manner of nets for fishing "upon all and every part of the said strand betwixt Ballyreagh "and the mouth of the river Bann aforesaid: habendum for sixty-one years from the 1st of November 1667. This lease purported to have been made in consideration of £100, and reserved a rent of one shilling a-year. It contained a provision that the lease should be void, on payment or tender, on any 1st of November, of £100 and it contained a memorandum of agreement, purporting to be made before its execution, that the lessee should have liberty of ingress, egress and regress, into every fishing place of the said strand, through the lands of the Marquis of Antrim next adjoining the said strand. By an indorsement on this lease, dated the 23rd of April 1670, Archibald Stewart assigned his interest in the fishing to Uriah Babington, who was described as having been "assignee "to the said Marquis of Antrim, according to the purport and "term of the within deed;" Stewart acknowledging to have received from Babington the sum of £100.

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By deed, dated the 17th of October 1694, Henry Babington and William Hinson, administrators of Uriah Babington, assigned the fishing to Robert M'Neale; and by an instrument of the 12th of December 1701, indorsed upon that deed, Robert M'Neale assigned VOL. 9.

19 L

H. T. 1859. to Archibald M'Neale his interest in the lease, "with the three Exchequer.

O'NEILL

v. ALLEN.

"boats, three nets, cables, anchors, and all the appurtenances be

66

longing to him which were made use of for the fishings." It would appear from a recital in the deed of 1694, that the Marquis of Antrim, in appointing Uriah Babington to pay the £100, had covenanted to do all acts for "estating" to Uriah Babington the "said salmon fishing," during the term of ninety-nine years. If it was held only for the original term of sixty-one years, it would have expired in 1729. If that term was extended to ninety-nine years, it would, of course, have expired in 1767; and if the term were ninety-nine years from 1694, when Uriah Babington advanced the £100, it would not have expired until 1793. The evidence with which I am now dealing applies immediately to the question, whether or not there was in fact a several fishery at the respective periods of those instruments? First, we have in evidence the act of a Court of exclusive jurisdiction-a Court, whose decisions within their jurisdiction, according to the case of Devit v. The College of Dublin (a), are not examinable-adjudicating upon a matter directly within that jurisdiction. According to the Act of Parliament, an adventurer, who had lands or hereditaments allotted to him, and was in possession on the 7th of May 1659, would be entitled to what he then had. We have then an adjudication under the statute, showing that, on the 7th of May 1659, Hugh Rowley was in possession of a salmon fishing along this coast; and upon the Down Survey, and the evidence of modern user, there was the plainest evidence for the jury, that the fishing, which in 1659 was in the possession of Rowley, was in the very spot where the enjoyment which I have stated was proved to have existed from 1798 downwards. In 1670, that same fishing was the subject of an instrument by which the Marquis of Antrim asserted and exercised ownership, making what was in truth a mortgage of it; and the estate and interest which the Marquis of Antrim professed to grant was subsequently dealt with by three instruments, also showing acts of ownership, in 1670, in 1694 and 1701. By the assignment of 1701, there was transferred

(a) Gil. Rep. 241.

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