Lease / Licence Consent to Use
In almost all cases where the owner or persons entitled to a fishery, almost always the landowner, allows somebody to use the land, it is by consent or licence.
A lease of fishing rights is possible. Fishing rights may be leased to Angling clubs.
There may be a contract specifying the terms of access. The landowner may permit entrance and may apply terms and conditions to the consent to entry in accordance with general principles of trespass.
1971 legislation allows a sporting lease where a club has spent substantial monies (more than 15 timed the rent) in erecting permanent buildings or structures on the land which are used in connection with the land for that purpose, on reconstructing, altering, renovating or adapting any permanent buildings or structures on the land which are so used so as to render them more suitable for that purpose, or on developing, improving or adapting the land so as to render it more suitable for that purpose.
It applies where a club carries out some outdoor sport game or recreation under the terms of the lease. In one particular case it was decided that a fishing lease was outside the act allowing for new long-term sporting leases. The case has been doubted as it interpreted land to mean dry land. Fisheries is property in itself and will generally be within the concept of land for property law purposes
Easements Access to Waters
The owner of the fishery has to free passage fish to his fishery and the right to catch fish finding its way there. This is of course subject to fisheries legislation.
The owner of a fishery does not necessarily have a right to use the adjoining land / bank for the purpose of taking fish where this can be done without interfering with the adjacent shore, such as by a boat.
A right to use a fishing path or other right to use the banks can be acquired by as an easement to the fishery by 20 (12) years’ continuous use, provided the conditions for an easement are satisfied.
Where fisheries right is granted by deed over another’s land a right of access is usually implied. Generally the right will be for the full beneficial access of the right granted. Where the right granted is verbal, it will be implied to the extent that consent.
A property right to fish in a river implies a right of access unless the full beneficial use can be enjoyed by use of a boat. The right of access to the bank must be exercised in a manner that causes as little detrimental to the riparian owner as is consistent with the full beneficial use of fishing.
Where there is a property right to use a fishery, the holder can generally repair the access. This might involve removal of useless and injurious weeds in the bed of the river although its extent if any will depend on the circumstances.
The Land Act 1903 provides that where a fishing right is reserved to the seller of land on sale to the Land Commission , there is an attached right to enter land in respect of which the right is exercised . The benefit of this right of access can itself be granted by authorising persons to do so. Persons who entered land in pursuance of the right are liable to make reasonable amends and satisfy any damage done.
In an Irish case in the 1990s the plaintiff claimed the right to bring cars to the riverbank with rods and equipment for fishing. The court found that the right was limited to means of access of an ordinary person of average strength. Regard be had to the necessary equipment. In the circumstances as net fishing was illegal, the fishery could be enjoyed without access by motor vehicle.
Where a right to fish is allowed by consent byelaws or rules, then there is likely to be implied or granted a right of access to the watercourse. Its terms if not set out, would be implied in accordance with the circumstances.
All fishermen and persons employed by them may enter upon all such beaches, strands and wastes on or adjoining the seashore or any estuary as may be necessary for the purpose of sea fishing, and draw up and spread their nets and land their fish upon such beach, strand or waste.
All watchmen, directors and guiders of fishermen, and all such fishermen themselves, and all such other persons as shall necessarily attend the nets or fishings at the times of fishing for sea-fish may enter any lands ( not being an enclosed garden or any tillage land with a crop growing thereon) which lie near or adjoin any fishing place, fit, convenient and necessary to watch and to draw or carry fish on shore and there watch for the said fish and direct and guide the said fishermen who shall be upon the sea and sea coasts for the taking of the said fish. Obstruction or resisting persons in the exercise of such rights is a summary offence.
Where a transferable fishery in any water flowing through land surrounding or adjacent to a dwelling house has become vested in the Minister and the angling rights in such water have not been reserved under an angling rights (reservation) order, any person lawfully entitled to fish with rod and line on such water and his paid servants or attendants shall be entitled to pass along the banks of such water for the purpose of such fishing or of going to or returning from such fishing, but for no other purpose. This does not entitle any person to enter any enclosed yard or garden or any buildings.
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