Fishing & Sporting Rights

Sporting rights.

The ownership of land includes the right to kill and capture wild animals on it and to fish in its waters. These rights, or any of them, can be owned separately to the land by means of a “profit” in favour of a third party. A profit can be created by the landowner by deed or may be acquired by long use. These common law rights are limited by Wildlife and Fisheries protection legislation.

As with other profits, they carry the right to enter the land to the extent necessary to exercise the relevant right. Accordingly, the person who is entitled to the profit may enter the land, fish or shoot etc., and take the relevant animals or fish away in accordance with its terms. A profit may be leased or licensed.

Sporting rights were commonly reserved unto the landlord under older leases. Sporting rights in this context, include rights of hunting, shooting, taking game and fish.  Even after the Land Purchase Acts, many such rights were retained by the original landlord and passed to the Land Commission.

The Land Commission commonly reserved sporting rights onto itself, when it vested land in the tenant farmer. The rights commonly remain registered on the title to agricultural land. Sporting rights may be cancelled on application to the Registrar of Titles where the relevant rights have not been exercised for upwards of 12 years.

Fisheries

Fisheries are rights to fish in a particular place. Sometimes the word is used to describe the place itself. It is presumed until the contrary is shown, that tidal waters are public fisheries in which every person may fish.

Private fisheries are interests in property which generally belong to the river or seabed owner but may become detached from it. The owner of property in which a river is situated is entitled to fish and take the produce of it in much the same way as any other benefit of the land. Fisheries usually carry the right to the attendant soil of the river.

The public is entitled to fish in the sea, estuaries and tidal rivers. These rights are subject to restrictions under the  Fisheries Acts.

There is no right for the public to fish in rivers beyond the tidal section. This is so, notwithstanding that the river may have been fished for a very long time and notwithstanding that a right of navigation may exist. The public rights are derived from the State’s rights in seas and tidal waters.

The public right of fishing includes rights to take certain shellfish. There is no public right to take seaweed from the foreshore. Floating seaweed may be taken under a right of fishing. A profit to take seaweed can be established against the State and against private owners.

In common with fishing, the removal of things from the foreshore is regulated by statute, so that the common law rights may be regulated or displaced. Aquaculture licenses are required to carry out fish farming.

A right of piscary may be appurtenant to a particular property. In this case, it will be limited to the requirements of the owners of that property. A commons of piscary is a right for several persons to fish. Commons of piscary exist, where owners of two halves of the river such as adjoining riparian owners, enjoy the whole river in common.

A several fishery is a right to fish in a particular place. It may or may not carry the underlying property in the soil. A several fishery which exists with the ownership of the bed or soil of the river is not a profit a prendre.

The profits of a river may be divided in accordance with different rights for different classes of fish, such as riverbed fish and swimming fish. Rights may exist in oyster beds, separate from the rights of the public to fish swimming fish.

It is presumed that all non-tidal waters are the subject of fishing rights. Most such waters are owned by the owners of the adjoining land. Some are owned by  Inland Fisheries Ireland. The general presumption is that the owner of land abutting a non-tidal river or stream owns the soil to the midpoint and may fish to this point. Where he owns both sides, or it is enclosed, he has an exclusive right to fish. The owner of a several fisheries is presumed owner of the riverbed concerned unless the contrary is shown.

The State does not have title to inland waters at common law. Accordingly that no automatic public right exists.

A several fishery may be established in tidal waters. There are instances of where this has been provided by legislation.

In theory, prior to Magna Carta, the Crown could grant a right in the exercise of the prerogative to individuals or to groups, to fish in tidal waters, to the exclusion of the public. It must be shown that the several fishery was appropriated by the Crown or a subject, prior to 1189.

A private several fisheries may be proved by long possession,  giving a presumption of lawful origin. This may be rebutted by showing that the fishery did not exist since 1189.

The existence of a profit to fish implies he requisite right of access and everything necessary to give enjoyment to it. In common with other profits, it must be exercised in a way that causes as little detriment to the owner as possible. Such equipment as is necessary to enjoy the fishery to its extent may be brought to the relevant place.

The owner of the fishery may take such measures as are necessary to procure access to it, including clearing of weeds etc. The owner of the fisheries is not obliged to take positive steps to keep the means of access in repair.

Wild and Domestic Animals

A domesticated animal is deemed the property of its owner. A wild animal is not deemed owned until killed, tamed or if it is confined to the owner’s land by reason of its age.

The right to catch and reduce wild animals into possession will generally be vested in the owner of the soil. However, as with other profits, it may be separated from the land, as a profit. Sporting rights may be reserved on to the Land Commission or may be reserved on to freehold owners from whom the estates were acquired. The Land Commission tended to reserve such rights on vested agricultural land in tenant farmers under the Land Act.

The right to take game must be exercised in a reasonable manner. The holder of the right must not unnecessarily damage the land. The fact that the normal use of the lands might diminish or be limited, will not usually be grounds for legal action. However, the use may not be so extensive as to destroy or substantially destroy the right. The reasonableness of the land owner’s actions will be relevant.