E. T. 1865. question, whether, a man having an ancient house, he may pull V. JUSTICES OF then construct another. FITZGERALD, J. Was the case against TIPPERARY. the Justices of Wexford under the Grand Jury Act ?—Yes. In the Grand Jury Act there is no clause like this about defect of form. [FITZGERALD, J. But this is substance.] Ryan, in reply, on the point about negativing exceptions, referred to Crepps v. Durdan, 1 Smith's Leading Cases, p. 649, and the cases there collected. Cur. adv. vult. T. T. 1865. LEFROY, C. J. We are all of opinion in this case that the conditional order should be discharged. There seems to have been a contrivance to violate the Act of Parliament. The statute was intended to prevent walls being erected within a certain distance of the centre of the road; but there was an exception in favour of houses which were built at the passing of the Act. Here, though the wall was built before the Act was passed, yet it was subsequent to the passing of the Act that the wall was raised so as to make it a portion of a house. We are, therefore, clear that the conditional order should be discharged; but as this Act contained an exception in the case of a house, that exception should have been negatived in the conviction, and, from this informality in the proceedings, we discharge the order without costs. O'BRIEN, HAYES, and FITZGERALD, JJ., concurred. H. T. 1865. CROFTON M. VANDELEUR, Appellant; WILLIAM MALCOLMSON and Another, Respondents.* Jan. 28, 31. THIS was an appeal from a decision of the Special Commissioners Fishery Apfor Irish Fisheries. The special case stated, pursuant to the 14th section of the 26 & 27 Vic., c. 114, contained the following facts material to the question before the Court:-That the appellant was seized in fee in possession of a considerable portion of the land adjoining the shore of the sea or estuary of the river Shannon, whereon the net in question was erected, and was so seized before the erection of the said net. That said net had been erected in or about the year 1815, by a tenant of the said appellant's family, who had fished same at a yearly rent to said appellant's family; and said net had been erected always in or nearly in the same site. That about eighteen years ago said weir had been surrendered to the appellant, and had been let some years ago by said appellant to Marcus Sheehy, as a tenant from year to year, by a parol demise, at a yearly rent of £4; and that the said Marcus Sheehy held the said weir as a yearly tenant under said appellant. The appellant had frequently supplied wood for the repairs of said weir; and said Marcus Sheehy paid rates and taxes for same, and took out a regular fishing license respect thereof in each year. That the net had been erected and fished for salmon in 1862, and previously by said Marcus Sheehy as such yearly tenant, and was a salmon net or weir; and any net or weir that had been erected or fished in or about the same site was also a salmon net or weir; and that the said appellant was the owner in fee and occupier of the land adjoining the shore whereon the said fixed net was erected. That the net projected into the river Shannon, where the same is public, tidal, and navigable, and was erected upon the shore of the lands of Mount Shannon, within the limits between high and low water in Before LEFROY, C. J., O'BRIEN, HAYES, and FITZGERALD, JJ. 72 L peal. A, owner in fee of the shore adjoining the river S., let to B, by yearly tenancy, a fixed net, erected in 1815, and continued down to pre sent time in the same site. Held, rever sing the deci sion of the Commission ers of Fisheries, that the letting to, and user by B, did not render the net illegal under the 5 & 6 Vic., c. 106, s. 19. VANDELEUR v. MALCOLMSON. H. T. 1865. mark, whereof the appellant was and is seized as aforesaid. That Queen's Bench it was admitted that Marcus Sheehy, who was the person actually fishing and using the said net in the year 1862 and previously, did not hold or occupy any land adjoining the shore of the estuary whereon said net was and is erected. That the appellant did not seek to make title to said net, under the 5 & 6 Vic., c. 106, s. 18, the appellant not laying claim to any several fishery along the shore whereon said net was erected. That the said net was held illegal, on the following grounds :-First, that the net was not legally erected during the open season of 1862, or at all in that year, or subsequently under 5 & 6 Vic., c. 106, s. 19;* for that said Marcus Sheehy was the person who fixed, erected, maintained, and used the said fixed net, within the meaning of the said 19th section, as explained by the 8 & 9 Vic., c. 108, s. 5, and the 13 & 14 Vic., c. 88, s. 16; and the said Marcus Sheehy did not hold or occupy any of the adjoining land. Secondly, that though said appellant was seized for an estate in fee in possession, and was in actual occupation of the adjoining shore, he was not, in contemplation of the statutes, the person who fixed, erected, &c.; whereupon the said Commissioners decided that said net should be removed. The 5 & 6 Vic., c. 106, s. 19, enacts :-"That it shall and may be lawful for every person who shall hold and occupy as tenant in fee-simple, or in fee-tail, or as tenant for life, or as tenant under any lease for a life or lives, or as tenant for a term of years, of which not less than fourteen years shall be unexpired at the time of first erecting such net, any land adjoining the seashore, or any estuary, not being within the limits of any such several fishery, but subject to the provisions of this Act, and to such regulations and restric tions as may be made by the said Commissioners as aforesaid, to fix or erect such stake net or other fixed nets as aforesaid, attached to that part of the shore adjoining such land; provided always, that no tenant under any lease for a life or lives determinable, or for years, of which less than one hundred shall be unexpired, shall be empowered to fix or erect such stake nets or other fixed nets as aforesaid, without the previous consent in writing of the chief landlord or lessor seized of any rent and reversion in such land; and provided also that the placing or erection of such stake nets or other fixed nets as aforesaid shall not give or confer any right or title to the occupancy of the said shore (except for the purpose of attaching the said fixed nets thereto during such occupancy of the land as aforesaid); saving to the Queen's Most Excellent Majesty, and all the subjects of this realm, the free and full exercise and enjoyment of all other rights of fishing, or other rights whatsoever, in or along the said sea-shore or coast, or the shore of such estuary as aforesaid, subject to the provisions herein contained." 66 Exham, with him Tandy, for the appellant. There was no allegation that the weir was injurious to navigation. Colonel Vandeleur is still the owner, and the use of the stake net only an easement by Sheehy. It was an incorporeal right only. The respondent maintains that an incorporeal right can be granted by parol under the new Landlord and Tenant Act 1860. All these nets, which are called indifferently stake nets, weirs, fixed nets, were legal until the Act of 1842. All through the Acts, fixed nets mean not only stake nets, but every stationary engine for the purpose of catching salmon. Section 18 of 5 & 6 Vic., c. 106, regulates the rights of the owners of several fisheries in regard of stake nets; but under this section Colonel Vandeleur claims nothing. It is under section 19 that his claim arises. The second proviso of this section is as follows:-"Provided also, that "the placing or erection of such stake nets, or other fixed nets as aforesaid, shall not give or confer any right or title to the occupancy of the said shore except for the purpose of attaching "the said fixed nets thereto during such occupancy of the lands as "aforesaid." This guards against conferring any right to the sea-shore. In granting the right to erect legal nets on the shore, which belongs properly to the Queen, it became necessary to guard against the supposition that this conferred any right to the shore itself; so that when an incorporeal right was thereby created, and so given as an easement, the title to it was unconnected with the right to the land. This grant was of the same character as a grant by deed, only for this clause excepting right to the soil itself. This right is just like that discussed in Drewell v. Towler (a). There the right claimed was to fasten holdfasts in a wall to erect clothes lines thereon. Just like the case of an owner of a several fishery provided for by the 18th section. This right is to an incorporeal hereditament, and so lying in grant, it can only be conferred by deed, and it cannot be the subject of a parol demise. Therefore, we contend that this fishing was by Colonel Vandeleur's servants. In Hall's Rights of the Crown on the Sea-shore, p. 50, after stating that fishing may be of two kinds-with nets or other movable (a) 3 Bar.& Ad. 735. H. T. 1865. VANDELEUR v. MALCOLMSON. VANDELEUR บ. MALCOLMSON. H. T. 1865. apparatus, or by means of weirs and fixed inclosures, he goes on:— Queen's Bench "Now, the public cannot claim the soil under the sea or of the "shore itself; the public fishing of the subject is a floating liberty "of fishing with nets, hooks, &c., whereas the several or private "fishery may be claimed either as an individual personal right "of fishing with nets in loco, the soil or shore whereof belongs "to the King or to any private subject, or it may be claimed as "appendant or appurtenant to the ownership of an adjoining manor or "freehold." Duke of Somerset v. Fogwell (a), Holferd v. Bailey (b), where a statement that ownership of the soil was in a third party was held not to vitiate the right to the fishery. The case of The King v. The Inhabitants of Chipping-Norton (c) proves that if there be no deed to grant incorporeal right, it is a mere license. Lord Ellenborough there says:-"It was a mere license to collect the tolls, the right to which still remained in the corporation." The case of Wood v. Leadbitter (d) is to the same purpose; the marginal note there states :- Right to enter and remain for "certain time on the land of another can be granted only by deed; "and parol license to do so, though money be paid for it, is re"vocable at any time." They say, admitting your argument, that this is an incorporeal hereditament; yet, by Landlord and Tenant Act, an incorporeal hereditament from year to year may be granted by simple writing, and under a year by parol. They contend that, under the 3rd and 4th sections of the 23 & 24 Vic., c. 154, rent must make Sheehy a tenant. They must contend that this fourth section is an implied repeal of the Common Law, and also of the second section of the Statute of Frauds. The title of the Act is, "To Consolidate the Law of Landlord and Tenant;" and surely there was no intention to change the settled law of the land. Then, is this Act retrospective? The words of section three are, "The relation of landlord and tenant shall be deemed to "be founded on the express or implied contract of the parties, and "not upon tenure or service; and a reversion shall not be neces"sary to such relation, which shall be deemed to subsist in all cases (a) 5 B. & C. 875. (b) 13 Q. B. 426. |