ii8 MINUTES OF EVIDENCE TAKEN BEFORE THE Sir R.
De Burgho, terden differed from Bayley and Holroyd, and says, ' reasonable space being allowed (Rex Bart.
-y.
Russell), that it leaves sufficient room for two carriages to pass is not any justification for
— placing a waggon across part of the street.'
The Court say, 'the principal object of the 8 March 1849.
street was for the free passage of the public, and anything which impeded that free passage was a nuisance.'"
As to objection that the obstruction should be substantial and a great public inconve¬ nience, Mr.
O'Hea and Sir C.
O'Loghlen distinguish the case of Rex v.
Ward.
"The obstruction here was to lighters and small boats, but it was proved that the poles of nets were useful in pointing out to larger vessels the navigation of the channel, and that that counterbalanced the obstruction to the small boats, and that the Chief Baron refused to leave it to the jury," &c.
8cc.
The evidence was that at certain periods of the tide and wind it would be injurious to small boats.
Mr.
Corbet, in reply, cited several cases.
* Chief Justice Pennefather then delivered judgment as follows :— " The Court are of opinion that the verdict is quite right, and that there are no grounds to set it aside, either with reference to the charge of the Chief Baron or the finding of the jury.
It is needless to go through the cases.
Here is a class of men, the owners of small boats, who are entitled to the navigation of the river; and it is an injustice which the Court will not sanction, that another class of vessels being advantaged will do away with the injury to smaller vessels.
Every person has a right to use the King's highway, and no one can obstruct that by making an erection which causes an obstruction.
This is not the case of building an erection in certain places which may injure a few individuals, but, on the whole, is perhaps an advantage to the public ; but here a person erects private weirs, to the injury of a class of persons who must not be injured by private speculations of this description.
If the Chief Baron had directed the jury, as the counsel for the traverser considers he should have done, he would have done wrong.
No person had a right to say, I will leave the public a portion of the highway, and take the rest to myself."
Justices Burton and Crampton concurred.
Justice Perrin added, " Nothing was withdrawn from the jury here.
If the same thing-was done to a road, an injury to foot passengers, it would be no excuse that it had benefited carriages."
Mr.
Bennett prayed judgment, and that the weirs should be protected forthwith.
Allowed.
At Waterford Summer Assizes, 1844, in the trial of The Queen v.
Dobbyn and others, an indictment precisely similar to the above, Baron Pennefather, in charging the jury, said,— *' Wherever the tide ebbs and flows is a highway open to all Her Majesty's liege sub¬ jects ; their rights are not to be abridged, and an interference with public rights is a nuisance at common law."
The jury found the traversers guilty; fined Qd.,
undertaking to remove the nuisance.
i 848.
Chairman].
Are those papers the whole of the further information which you have to supply ?—There
is also a report of the trial of a conceived offender at the city sessions court of Limerick, dated 15th May 1840.
1849.
Will you hand it in as part of your evidence ?—Yes.
[ The Witness delivered in the same, which is as follows:] Sir, North Strand, Limerick, 20 May 1840.
I am one of the many poor fishermen who have been for years prosecuted at the suit of the lessee of the Corporation of Limerick for fishing in the Lower Shannon, and I have within these few days been tried and convicted, under an Act called the Qualification Act, at the prosecution of the Shannon Commissioners.
You will perceive by the defence in the annexed report of the trial, that my case em¬ braces the question of the title of the corporation, and goes to establish that the River Shannon, from Limerick to the sea, is a free fishery, and the common right of all.
If I can now only find means to sustain a defence in the higher courts, 1 hope not only to be the instrument of relieving my unfortunate brother fishermen and fellow-sufferers, but of establishing and'confirming the right of fishing for all the landed proprietors along the shores of the Shannon to the sea.
The merits of my case, and the misery to which the unfortunate fishermen have been re¬ duced by repeated prosecutions, have occasioned such a feeling of commiseration for us in Limerick, that seveial gentlemen have declared themselves ready to subscribe to establish the river as a free fishery, provided the landed proprietors and the farmers of weirs on both banks of the river will also come forward with their assistance, with a view of establishing a right, in which not only the poor fishermen but the public at large are so vitally inte¬ rested.
Mr.
Reuben Harvey has consented to receive subscriptions, and such persons as wish to subscribe will please to lodge the amount in the Provincial Bank to his credit.
I remain, sir, respectfully yours, Timothy Tobin.
The following is the report of my trial before the Limerick bench of magistrates:—
Important
