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H. T. 1848. November 1844, in the name of the Marquis of Donegal, and Queen's Bench.

defence was taken “for so much of the lands and premises in the MARQUIS OF

GAL “declaration in ejectment as were in the possession of the defendant

v. “and his undertenants, and therein called all that,” &c. LORD TEMPLEMORE.

The question in dispute was, were the premises mentioned in the ejectment part of the ground and soil of the river Lagan ? The river flows south of the town of Belfast into the bay of Carrickfergus ; on its eastern side is the townland of Ballymacarrett, in the county of Down; and on its western side is Belfast, in the county of Antrim. To the south of Belfast the tide ebbs and flows about 2 miles, and at ebb tide there is a portion of mud banks which, until lately, were exposed at low water. The Harbour Commissioners of Belfast, wishing to extend the quayage, reclaimed these mud banks, and under a Local Act an inquiry was held to assess compensation to the owner thereof. The Marquis of Donegal and Lord Templemore respectively asserted a claim, whereupon the Harbour Commissioners paid the sum assessed by the jury into the Court of Chancery, and the present action was brought under an order of that Court to try the title.

In support of his claim, the plaintiff gave in evidence a patent made to his ancestor Sir Arthur Chichester, of the 9th of May 1604 (2 Jac. 1), wherein among other grants was one of “ The "said water of Lagan and the piscary of and in the river or stream called the Lagan, near the said castle of Belfast, in our said county of Antrim.And in another part of the same patent the grant was of “A free piscary or fishing in and through the whole river or stream called the Lagan.

An inquisition of the 6th of April 1621 was then given in evidence, by which it was found that “ The fishing and piscaries of every kind of the entire river of the Lagan, together with all weirs and customs of all things whatsoever upon the same river imported, transported or exported,&c., were held in trust for Sir Arthur Chichester. And another inquisition of the 10th of April 1620 (19 Jac. 1), found “ That there is a royal salmon "fishing within the river of Lagan, where the sea doth ebb and flow for the space of half-a-mile up above Belfast, within the

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said county of Antrim, and that the said river is navigable H. T. 1848.

Queen's Bench. with barkes and boates, and that the said fishing is in the pos

MARQUIS OF session of Arthur Chichester,” &c. A patent of 20th November 1620 (19 Jac. 1) was then given in

LORD TEMevidence, and on this patent the plaintiff mainly relied. After recit

PLEMORE. ing as a consideration for the grant the faithful services rendered to the Crown by Sir Arthur Chichester, it granted to him the castle and manor of Belfast, and among other tracts of country the tuoghs, precincts or territories of the Falls and Malone, and of the cynament in the county of Antrim aforesaid, in and within the mears and bounds following-viz., towards and near all the south part of the said territories, is lying and being the bay of Knockfergus and the river of Lagan,&c., which said river of Lagan, unto the bay of Knockfergus aforesaid, is the south mear of the said territories and parcels of land aforesaid, and also the fishings and fishing places of what kind soever of all the river of Lagan, and the ground and soil of all the said river, together with all weirs and customs for all things whatsoever which shall be transported or brought in or out upon the said river.” In the same patent was granted so much soil as the patentee might reclaim from the sea at any time thereafter, and it empowered him to constitute one or more ferry or ferries, passage or passages to go upon and over the water or river of Lagan and the bay or arm of the sea near Belfast, in the county of Antrim aforesaid, “ unto the lands or banks of the Upper Clandeboye, in the county of Down.The patent contained the usual non obstante clause as to misdescription or misrecital of places or counties. A confirmatory patent of the 22nd of September 1640 (16 Car. 1) was next given in evidence, and it described the bay of Carrickfergus and the river of Lagan as lying on “the southern side of the said territory;" and it confirmed to Sir A. Chichester “ All fishings and the fishing places of whatsoever kind of the said river of Lagan, and the ground and soil thereof,&c. Another patent of the 22nd of September 1667 (19 Car. 2) was also read, further confirming the grant under the patent of 1620.

A family settlement of the 19th of May 1792 was given in evidence, from which it appeared that Arthur then Earl of Donegal

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H. T. 1848. and his eldest son George Augustus, among other properties settled Queen's Bench.

All that the river of Lagan and the ground and soil thereof," MARQUIS OF

describing the whole as being in the county of Antrim. Under v. that settlement, the late Marquis George Augustus, on the death of PLEMORE. his father in 1799, became tenant for life, and the present Marquis

(the plaintiff) tenant in tail; but by a further settlement, executed between them on the 28th of October 1822, the present Marquis was made strict tenant for life. The late Marquis died in October 1844, and then the title of the plaintiff accrued. The settlement of 1792 contained a power enabling the tenant for life to make building leases; and a lease dated the 24th of April 1793, alleged to have been made in pursuance of that power to a person named James Holmes, “ of all that piece or parcel of strand or void ground, “ lying and being on the east side of the river Lagan, opposite to “the quay of the town of Belfast, being part of the ground and soil of the said river, and extending from the strand road leading “ from the east end of the bridge of Belfast towards Holywood, in “the county of Down, to the pier of the first arch of the said bridge, “westward,” &c., was also given in evidence, and proof of payment of rent under it to Arthur Earl of Donegal, from the date of that lease until his death, and that it was on this ground that Batt's and Gregg's quays were built. Prior to the settlement of 1792 Earl Arthur had purchased the townland of Ballymacarrett, in the county of Down, from Lord Avonmore (and the conveyance of that property to the Earl was given in evidence), and being thus entitled, after the above settlement he devised by will the townland of Ballymacarrett to his second son Lord Spencer Chichester, the grandfather of the defendant, in fee, subject to an annuity of £600 a-year, which he had charged on it as a jointure for his widow: and with this will and the reading of a patent in 1605 (the foundation of defendant's title), the plaintiff's documentary evidence closed.

Several witnesses were examined, sea-faring people acquainted with the port of Belfast and the river Lagan, to prove that the premises in question lay between high and low water mark before they were reclaimed from the sea, and that they were part of the river Lagan: and then the plaintiff closed his case.

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The defendant gave in evidence a patent of the 3rd of November H. T. 1848.

Queen's Bench. 1605 to James Hamilton, afterwards Lord Clandeboye (given in een

MARQUIS OF evidence also by the plaintiff), by which were granted to Hamilton “All those regions, countries or territories of the Upper Clan

LORD TEM“deboye and Great Ardes, in Clandeboye, in the said county of" “Down, in the province of Ulster, &c., and all other castles, “manors, lands, tenements and hereditaments in the countrie of “Clandeboye and Great Ardes, of which Neale M'Brien Fertagh “O'Neale, or his father Brianus, otherwise Fertagh O'Neale, in the “time of their lives was or were possessed of or received the rents, “dues and impositions, called in English “cuttings,' in the said “province of Ulster,” &c.; and also “all other manors, castles, towns “and villages or hamlets, lands, tenements and hereditaments what“soever, lying and being in and within the limits, mears and “ bounds of the said territories of the Upper Clandeboye and Great “Ardes, to wit, towards and adjoining to the north and western “ parts of the territory aforesaid the river of Lagan, which hath its course immediately into the bay of Knockfergus, is the most noted mearing of the territory aforesaid, and runs between the lands “thereof and other parcels of territories or countries called Malone, “Falfelough or Falls, Killultagh, and Mac-Shane-Oge's country in “Killultagb, in the county aforesaid, and the said river runs between " the territory aforesaid for eight miles or thereabouts, to wit, from the passage or ford of Belfast until the said river joins another called Garrycloth,&c.—[Then follow the boundaries of these territories until they return to the sea coast.]—“And from the shore “of the sea aforesaid towards the east and north is held to be the “most noted mears and bounds of the territory aforesaid, and unto " the rock of Carnanleagh, which is situated upon the coast of the “sea between the Upper Clandeboye and the Great Ardes aforesaid : “and the coast of the sea aforesaid, towards the east, and the bank of the bay of Knockfergus aforesaid, towards the north, is held to “ be the most noted mears and boundaries of the territory aforesaid, unto the passage, otherwise the ford of Belfast above mentioned.An inquisition of the 3rd October 1623 was then read, by which it was found that Lord Clandeboye had died seised of the territories or countrie called the Clandeboye estate, &c. [repeating the words of the

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H. T. 1848. patent], and of the several fisheries of salmon, and all other kinds of Queen's Bench.

fish in the loughs, rivers, bays, ports, roads, sounds and creeks of MARQUIS OF

the sea following; and, amongst others, in the river and bay of V. Owen O'Corke, and in the bays and point of Ballymacarrett ;

and that he had been entitled to anchorage, wharfage, cranage and PLEMORE.

other duties on vessels arriving, casting anchor, loading or unloading upon any of the wharfs, quays, banks or soil of him the said Lord Clandeboye. A confirmatory grant of the 20th of April 1630 (5 Car. 1) was also given in evidence, whereby all the lands mentioned in the original patent, including the townland of Ballymacarrett, were granted to Viscount Clandeboye, his heirs and assigns for ever, as fully as could be found to appertain to said Viscount by the said inquisition of the 3rd of October 1623; and amongst other things, “all the tithes of all the fish taken or “imported on the south shore of the bay of Knockfergus or Carrickfergus, from the Copeland Isles to the passage of Belfast, and the ferry from the town of Bangor to and from Knockfergus and Antrim side.

The defendant then offered in evidence, as acts of ownership over the premises in question, leases of portions of the strand of Ballymacarrett, one of which was ninety-two years old, receipt of rent under these leases, subleases and fee-farm grants made by the owners of Ballymacarrett, holding under the Hamilton patent. He proved the granting of liberty by himself and his father to persons to take gravel and sand off the strand; and that under these instruments large reclamations had been made and valuable buildings had been erected thereon.

To this evidence the plaintiff's Counsel objected that these acts were subsequent to the grant to Chichester, and that they could not construe his patent; and also that they were acts during the estate of the tenant for life, and could not affect the remainderman.

The case was tried before Perrin, J., at the Spring Assizes of 1847 for the county of Down,* who held that the evidence offered by

* The case had been tried on two previous occasions ; hut as the verdicts were set aside, more on the ground of mistrials than on any legal points, the Reporters have deemed it advisable not to report the arguments or decisions. The present arguments were heard in Easter Term 1847 and Hilary Term 1848, and the case should have been properly inserted in the 10th volume of the Reports.

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