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"in which there shall be an agreement by one party to hold land "from or under another in consideration of any rent." None can contend that any agreement to hold land existed here in the meaning of the section. The fourth section does not purport to deal with a tenancy from year to year; it expressly excludes such tenancy, which would be legal without any writing under the provisions of this Act, if this Act repealed the second section of the Statute of Frauds. It is said in Bailey v. Cunningham (a), that the relation of landlord and tenant may be created by parol demise for three years. There it was decided that parol demise of right to fishing was good. Then the 104th section declares, "From and "after the commencement of this Act, the Acts and parts of Acts "in Schedule (B) to this Act annexed," &c., "shall be and are "hereby repealed;" so this section takes away repeal by implication, and shows further that it could not affect rights previously acquired. When the language of the statute is not clear, we cannot adopt a construction destructive of rights existing. To this effect is the dictum of Justice Perrin in Farran v. Ottiwell (b), mentioned in Ellis v. O'Neil (c), in the judgment of the LORD CHIEF JUSTICE.

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That is the rule in construing a statute interfering with Common Law right. Now, these are statutes interfering with Common Law right in this case: Buzzard v. Capel (d) and Swatman v. Ambler (e). Rent commonly issues out of a corporeal hereditament. Now, this third section says this relation shall arise where there is any agreement "in consideration of rent." Then they have recourse to the interpretation clause, where rent may mean any sum or "return in the nature of rent, payable or given by way of compen"sation for the occupation of land." But there is no authority for having recourse to the interpretation clause to eke out a meaning injurious to existing rights: The Queen v. The Justices of Cambridge (f). In Cunningham v. Bailey the judgment of Mr. Justice Christian is strongly in appellant's favour upon this point, as it

(a) 8 Ir. Jur. 213.

(c) 4 Ir. Com. Law. Rep. 467.
(e) 8 Exch. 72.

(b) 2 Jebb. & S. 97.

(d) 8 B. & C. 141.

(ƒ) 7 Ad. & Ell, 480.

H. T. 1865.
Queen's Bench

VANDELEUR

v. MALCOLMSON.

VANDELEUR v.

H. T. 1865. clearly shows that there is no repeal of the Common Law. In Queen's Bench M'Areavy v. Hannan (a) the third section of this Act was held not retrospective. Again, in the tenth section, which is intended to be retrospective, it is clearly so expressed, "where any lease has been "or shall be made, containing an agreement restraining or prohibiting assignment, the benefit of which has not been waived," &c.

MALCOLMSON.

66

Longfield, for the Commissioners for Irish Fisheries.

If these nets were erected under the new Act, the 19th section is the only one necessary to consider. The 18th section does not apply, as Colonel Vandeleur does not claim a several fishery. The words of this section contain an express proviso against the appellant's claim. This is a corporeal, not an incorporeal hereditament. It is provided by the Act of 1842 that these weirs shall not be a nuisance to navigation. See fifth section of 8 & 9 Vic., c. 108. There is no resemblance between this case and that of The Duke of Somerset v. Fogwell. Now it is expressly found here that the weir was let as a yearly tenement. Sheehy took out the license, and paid rent and taxes for the weir. In Malcolmson v. O'Dea occur the words of my LORD CHIEF JUSTICE :— "A fishery in concommitance with the soil." It is said this weir is part of the soil. In the same case Baron Fitzgerald says:-" He could not let the right to erect a weir."-[HAYES, J. If, after he erected the weir, the tide were some night to carry it away, would the right be gone?-FITZGERALD, J. Assuming that Colonel Vandeleur had a right to erect it, if he allows another person to use it, would it be a violation of the law? And, assuming it to be an incorporeal hereditament, show me that the right would be gone.]-If the owner in fee were to erect a net, and then cease to occupy, his right goes.—[HAYES, J. If the license was paid for by Colonel Vandeleur, it might be used by any one.]- This was a good parol demise at Common Law. Bailey v. Cunningham is an express decision that demise by parol is good under the Landlord and Tenant Act 1860. The fourth section implies that all estates not specially provided for may be created by parol.

(a) 13 Ir. Com. Law Rep. 70.

Shaw (with him E. Johnston) for respondent Malcolmson. All these Acts should be construed together, as forming a code of law. There is no intention to abridge in the weir-owner any lawful right. This 19th section only abridges a right of the public. In Templemore v. Allen (a), it is laid down that the rights of weirowners were to be tried strictly as being against public right. There, there was no consent of the landlord. Section 10 says:— "It shall be lawful for," &c., "but subject to the provisions of this Act." Now Sheehy cannot bring himself within the provisions of this Act. The object of this Act was to prevent strangers from erecting weirs, as the Scotchmen had done. The owner of a several fishery may do this by the 18th section. This 19th section says that, "Where no several fishery exists, it shall be lawful," &c. If there is a lease for fourteen years, then the tenant can erect the weir, with the landlord's permission; but, if the land is in possession of a yearly tenant, the landlord must either give a greater interest to the yearly tenant, or must turn the tenant out, and take the land into his own hands. The fifth section of the 8 & 9 Vic., c. 108, after referring to this Act as one that defines who may use those nets, goes on:-"If any person, other than those

66

so entitled to exercise such right as aforesaid, shall erect, use, "or fish with any stake, weir," &c.; showing that the Act contemplated the erection and use by the same person. If summons had issued against Sheehy before the Magistrates, he would have been liable to a penalty of £10.-[LEFROY, C. J. Then, if any friends were permitted to fish by Colonel Vandeleur, he would be liable to £10 penalty.]-The question of agency would then arise, whether he would not be considered as fishing himself.-[O'BRIEN, J. In strict construction, weirs legal before the Act are now made illegal; but, once weirs are erected, then a liberal construction should be adopted.]-This Act is much the same as if it said, "If any one who is not the owner of adjoining land, or who has "not erected it himself, shall," &c., he shall incur a penalty of £10. The words "erecting, using," &c., in this section, support this view. Secondly; this weir is not an incorporeal hereditament,

(a) 8 Ir. Law Rep. 199.

H. T. 1865.
Queen's Bench

VANDELEUR

v. MALCOLMSON.

VANDELEUR

v. MALCOLMSON.

H. T. 1865. but a chattel. A weir consists only of poles and a net, from the Queen's Bench time the net is first erected in the early spring time, and so remains till the end of the season: quiquid plantatur solo, solo cedit. There was an easement existing to put a weir in that place; but, as soon as the weir was erected, then it was no longer an easement. Sir J. Davies, p. 154, sec. 3:-"The city of London, by charter "from the King, hath the river Thames granted to them; but "because it was conceived that the soil and ground of the river "did not pass by that grant, they purchased another charter, "by which the King granted them solum and fundum of the said "river; by power of which grant the city to this day receives rents "of those who fix posts, or make wharfs or other edifices on the soil "of the said river:" Wood v. Hewitt (a). The owner of the weir would have, under this Act, so much soil of the ground as is necessary for his weir.-[O'BRIEN, J. Take the case of Drewell v. Towler, about a staple in a wall: whilst it remains in the wall it keeps the right in abeyance, but it belongs to the person who places it there.]-Lancaster v. Eve (b); Harvey v. Smith (c).

Tandy, in reply.

We claim no right created by this section of the statute. The case of Lancaster v. Eve was decided upon statutory right. He cited, further, the judgment of Mr. Baron Parke, in Cattley v. Arnold (d); The Duke of Devonshire v. Smith (e).

Cur. adv. vult.

Jan. 31.

LEFROY, C. J.

In this case a great many questions of law have arisen, and have been fully discussed. We have considered all these points; and the decision arrived at unanimously is, that we ought to reverse the decision of the Commissioners. My Brother O'BRIEN will deliver the judgment of the Court.

(a) 8 Q. B. 913.

(c) 22 Beav. 299.

(e) 2 Hud. & Br. 512.

(b) 5 C. B., N. S. 717.

(d) 1 John. & Hem. 651.

O'BRIEN, J.

This case comes before the Court on an appeal from the decision of the Special Commissioners for Irish Fisheries, whereby they decided that a certain fixed net, to which the appellant was entitled, was, under section 19* of the Salmon Fishery (Ireland) Act, and the Salmon Fishery Acts, illegal and void, and should be abated and removed.

The case has been fully argued before us; and we are all clearly of opinion, as it has been already stated by my LORD CHIef JusTICE, that the decision of the Commissioners was erroneous, and that the net was not illegal, on the grounds stated in the special case. The two grounds of objection appear substantially to involve the same question. The Counsel for the respondent, in support of the decision of the Commissioners, contended that, supposing that the net was legal originally, it continued legal so long only as the owner of the net and occupier of the adjacent land continued to be the same person; that if, by the letting or disposal of the net in any other manner, the owner and occupier of the land ceased to be entitled to the use of the net, the net was illegal; and, in order to bring the present case within that rule, the respondent's Counsel further contended that the letting of the net to Marcus Sheehy, made by the appellant, as stated in the case, connected with the subsequent payment of rent, amounted to such a severance of the net from the ownership and occupation of the land as, according to the principle of the rule, rendered the net illegal. To support that view, they sought to establish three propositions; first, that the net, and the right of fishing therein, was in the nature of a corporeal, and not an incorporeal hereditament or right; secondly, if that was so, that the parol demise of the net by the appellant to Sheehy, followed by the enjoyment of the right of fishing, and the payment of rent by him, created a tenancy from year to year in Sheehy; and that, accordingly, Colonel Vandeleur ceased to be the person in actual possession and enjoyment of the right of fishing. It was further contended that, supposing the right of fishing in the net was to be considered not a corporeal, but an * See section and case in the statement, ante, p. 570. VOL. 17

73 L

H. T. 1865.
Queen's Bench

VANDELEUR

v. MALCOLMSON.

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