Agnew & anor -v- Barry [2009] IESC 45 (28 May 2009)

Agnew & anor -v- Barry [2009] IESC 45 (28 May 2009)

The defendant/appellant did not establish a prescriptive right to the fishery as the use was with permission from the owners, and the requisite period of uninterrupted use without consent was not met. The correspondence and conduct indicated no claim to a prescriptive right, and the High Court's findings of fact and law were upheld.

Citation
[2009] IESC 45
Parties
Plaintiff/respondent: Ian Agnew; Plaintiff/respondent: Georgina Agnew; Defendant/appellant: Kay Barry, Personal Representative of John Barry Deceased
Jurisdiction
Ireland
Judgment Date
28 May 2009
Procedural Posture
Appeal / Supreme Court Judgment
Outcome
Appeal dismissed; High Court order affirmed.
Legal Topics
Prescription, Several Fishery Rights, Riparian Ownership, Abandonment of Rights, Profit À Prendre
Property Law Civil Procedure Prescription Several Fishery Rights Riparian Ownership Abandonment of Rights Profit À Prendre

Case Brief

Summary, issues, holding and outcome

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Parties

Ian Agnew

Plaintiff/respondent

Georgina Agnew

Plaintiff/respondent

Kay Barry, Personal Representative of John Barry Deceased

Defendant/appellant

Procedural Posture

Appeal / Supreme Court Judgment

Legal Issues

  1. 1 Whether the defendant/appellant acquired a prescriptive right to fishery under the Prescription Act, 1832
  2. 2 Whether the plaintiffs/respondents abandoned their rights to the fishery
  3. 3 Whether fishing by the defendant was by permission or as of right

Ratio Decidendi

The defendant/appellant did not establish a prescriptive right to the fishery as the use was with permission from the owners, and the requisite period of uninterrupted use without consent was not met. The correspondence and conduct indicated no claim to a prescriptive right, and the High Court's findings of fact and law were upheld.

Court Disposition

Appeal dismissed; High Court order affirmed.

Orders

  • Counterclaim dismissed
  • Declaratory, injunctive, and monetary reliefs in favour of plaintiffs/respondents upheld