The Supreme Court has dismissed an appeal seeking recognition of fishing rights over part of the River Blackwater in County Waterford through long use by the Barry family.
Mr Justice Geoghegan delivered judgment on May 28, 2009, in litigation between Ian and Georgina Agnew and Kay Barry, personal representative of the late John Barry. The Agnews owned what was described as the Bishop's Fishery, a several fishery giving its owner exclusive fishing rights over the relevant stretch of river.
The High Court had previously found for the Agnews on their documentary title, access rights and claims that those rights had not been abandoned. By the time the case reached the Supreme Court, the only remaining issue was whether the Barry side had acquired a separate fishing right by prescription under the Prescription Act 1832.
Prescription allows certain rights over another person's land or property to arise through sufficiently long, continuous use as of right. In this appeal, it was accepted that the appellant could rely only on the statutory 30-year period, not the stronger 60-year period.
The evidence showed members of the Barry family had fished the river for decades. However, the High Court had found that Fort William Estates and its representative Mrs Mitchell had permitted members of the Barry family to fish. Geoghegan J held that the Supreme Court should not interfere with that finding. Permission is incompatible with acquiring a prescriptive right through use as of right.
He also considered the family's historical position significant. Correspondence from the 1990s showed John Barry advancing a claim connected with his status as owner of adjoining land rather than expressly asserting that he had acquired a separate prescriptive fishing right. Fort William Estates repeatedly maintained that it owned the exclusive fishing rights while permitting Barry family members to fish.
The court also noted that the river was not fished exclusively by the Barrys and their licensees. Geoghegan J concluded that the evidence did not establish the necessary prescriptive profit à prendre — a legal right to take something, here fish, from another person's property.
The appeal was therefore dismissed.