Under common law, the public has a right to fish in the tidal reaches of rivers and estuaries. However the State or its predecessor the Crown or a private fisheries holder may have acquired the right and excluded the public right. It may be vested by statute in a body.
There is no general public right of fishery in nontidal waters even if they are navigable. The fact that a river joins a public road gives no right to anybody to fish in it.
Generally rights cannot be acquired in nontidal waters other than by way of a fishery. In the absence of a customary right, right granted by statute or privately granted, the public has no right to fish on land above high-water mark. The public has no general right to use the foreshore, but they may cross the foreshore for access to and from the sea.
Because the fishery is a proprietary right, it cannot be abandoned but may be passed by deed. The use by the public or part of the public, may be evidence against the alleged right.
The public cannot acquire a general right to fish in tidal waters by long use which are the subject of a fishery. The right is considered too vague and incapable of definition. It may not be obtained by custom or Statute of Limitation.
Where a public right depends on ownership of the soil by the State, the right extends to the high watermark of ordinary tide and as far up a tidal river as in the ordinary course, it flows and recedes. There must be some tidal influence. Saltiness is a factor, but it is not critical.
A public right of fishing must be exercised reasonably and subject to law. The public may not use fixed engines, weirs or anything else that is incompatible with the ownership of the subsoil. Subject to this, the public may adopt and use ordinary methods of fishing. They may not claim exclusive rights to the use of any part of the foreshore. In relation to shore and banks, there may be special customs in a particular locality and possibly under local private legislation from the 19th century.
The public has no general right to use the foreshore but may be permitted to do so. There may be a right to cross the foreshore to and from the sea for the purpose of fishing where necessary and appropriate for o that purpose.
There is a public right of navigation over tidal waters presumptively. Similar rights may be acquired over non-tidal waters. Fisheries must not interfere with navigation.
A State body may have ownership of tidal waters and displace the public right. The authority may give a permissive right instead. At common law there is no right to fish in tidal waters that were once the subject of a several fishery.
Where the public right depends on the presumed ownership of the soil by the State the right extends to the mean high water mark of ordinary tides and so far as the tide rises in the ordinary course of things. This may change by accretion and loss of land.
The State, the Public and Fisheries
The State has no common law right to the fisheries of an inland non-tidal river or lake. Members of the public have no common law right to fish in it, even in the case of large lakes. The public right of fishing in nontidal waters is not recognised at common law. In Inland fisheries Island v OBaoill 2012 the defendants unsuccessfully claimed a public right of fishing in Gweebara river exercised for 90 years.
Before Magna Carta, the Crown could exclude the public from any particular place by granting a several fishery. The Crown also had power to bar fishing in any area whether fish, fresh water or sea water, until the King had taken his pleasure there. The powers cease to vest in the Crown after Magna Carta and may only be exercised by Parliament/the Oireachtas/ the State in succession.
In tidal waters, in the absence of evidence otherwise, it is presumed that the soil subject to the ordinary flow and reflow up to the line of the medium-high tide belongs to the State. Proof of ownership of a several fishery raises a presumption against the State that the soil under the fishery belongs to the fishery. The presumptive positions may be rebutted.
Special State Cases
In many cases the Irish Land Commission acquired title to the bed and soil of lakes and rivers. When they granted land to tenant purchasers, they often exempted fishing and sporting rights. These rights may now be vested in tthe Department of Agriculture, which succeeded the Irish Land Commission after it was wound up.
There is a procedure under the Wildlife Act by which the State can establish ownership of inland waterways. Where the Minister (for Culture etc) is of the opinion that there is doubt about an inland water title belonging or likely to belong to the State, he may publish a notice in the official journal and newspaper requiring persons who claim to have an interest to come forward.
They would be obliged to furnish evidence of the title they wish to assert. After a certain period, the Minister may declare that the fee simple of the entire part of the inland water belongs to the State. The Minister may be registered as full owner of the bed and soil of the lake free from rights including public rights charges and burdens.
Commonly fishing and sporting rights were reserved by the Irish Land Commission when land was vested in tenant farmers from the 1890s to the 1960s. Almost all agricultural land in the State was vested by the Land Commission. In some areas there still exists land retained by landed families and estates.
In some cases, fishing rights were excluded from the sale to the Land Commission and could subsist in the selling estate’s successors. In the absence of such agreement they were vested in the Land Commission which dealt with them under regulations. In most cases the rights were reserved to the landowners.
Under the Land Commission (Dissolution) Act 1992 fishing rights and fisheries which had been vested in the Land Commission became vested in the Central Fisheries Boards and ultimately in Inland Fisheries Ireland.