The High Court ruled that Ian and Georgina Agnew had established a good title to a several fishery on part of the River Blackwater in County Waterford, including the area known as the Bishop’s Fishery. It found that fishing rights had been interfered with and that substantial gravel removal in 1998 damaged salmon spawning beds. The court concluded the plaintiffs were entitled to the relief sought.
The judgment, delivered by Ms Justice Macken on 29 November 2005, arose from a claim against Kay Barry, personal representative of the estate of John Barry. The Agnews sought declarations of ownership, injunctive relief and damages for alleged nuisance, conversion and trespass. The court noted that a slander of title claim did not survive John Barry’s death and was not before it.
The Agnews relied on conveyances tracing the fishery through Lismore Estates and the Duchess of Westminster to Fortwilliam Estates, which sold Fort William Estate and the fishery to the Agnews in 1996. The defendant disputed that those deeds conveyed the fishery and claimed rights through adjoining lands, long use, and alleged abandonment by the Agnews’ predecessors. She also counterclaimed for fishing rights acquired through continued use.
The court found the Agnews had a good title to the several fishery. It held that the defendant had not displaced the presumption that the riverbed belonged to the owners of the fishery, and found no fishing rights for the defendant under the 1739 grant or the 1924 conveyance to John Barry’s father. It also found that a grant of fishing rights implied access to the riverbank, exercised in a way that caused as little detriment as possible to the adjoining owner.
On the evidence, the court found that modest gravel removal occurred almost annually, but larger quantities were removed less often, including in 1998. Those larger removals substantially interfered with salmon spawning beds and caused actual and potential damage. The court also found occasions when John Barry and his brother interfered with the Agnews’ or their licensees’ access and fishing, and found that licences had been offered to anglers without the fishery owners’ consent.
The court rejected the claim that the fishery had been abandoned through non-use. It said abandonment required more than non-use alone and found that the defendant had not proved it. The defendant also failed to establish continuous, non-consensual use for the 60-year period the court considered necessary for prescription. The judgment did not reach a conclusive view on the legal status of the permission given to the Barry family to fish.
The court’s final order was that the plaintiffs were entitled to the reliefs sought. The judgment does not specify in its concluding paragraph the terms of any particular injunction or damages award.