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13 1943

DISTRICT OF FERGUS DRAINAGE ACT, 1943

FIRST SCHEDULE

AN CHEAD SCÉIDEAL.

ÉIRE.

HIGH COURT OF JUSTICE.

1937. No. 250 P.

BETWEEN:—

Patrick Glynn, Timothy Barron, James McCormack, Michael Hogan, Patrick Roughan, John Barry, Michael Kearney, John O'Loughlin, Mary McInerney, Patrick McCallin, Patrick McInerney, Patrick Barry, Patrick McInerney and Catherine Daly.

Plaintiffs.

and

The County Council of the County of Clare, The County Council of the County of Galway

and

The Commissioners of Public Works in Ireland,

Defendants,

and

BY ORDER TO PROCEED:—

Michael Glynn, Administrator of Patrick Glynn, deceased, Timothy Barron, James McCormack, Michael Hogan, Patrick Roughan, John Barry, Michael Kearney, John O'Loughlin, Mary McInerney, Patrick McCallin, Patrick McInerney, Patrick Barry, Patrick McInerney and Catherine Daly,

Plaintiffs.

and

Same

Defendants.

and

BY ORDER TO PROCEED:

Same

Plaintiffs

and

The County Council of the County of Clare,

The County Council of the County of Galway,

The Commissioners of Public Works in Ireland,

The Minister for Finance and the Minister for Local Government and Public Health,

Defendants

1. IT IS HEREBY CONSENTED AND AGREED by and between the County Councils of the Counties of Clare and Galway and the above-named Plaintiffs as testified by the respective Common Seals of the County Councils of the Counties of Clare and Galway hereunto affixed and by the signatures of their respective solicitors and by the respective signatures of the Plaintiffs and their solicitors as follows:—

(A) That subject to the necessary legislation enabling them in this behalf being enacted the County Council of the County of Clare shall acquire the lands shown coloured green on the map annexed hereto containing 272 acres, or thereabouts, statute measure. The said lands shall be acquired by the County Council· of the County of Clare at the price of £16 0s. 0d. per statute acre and shall be conveyed to the said Council in fee simple freed and discharged from all rents, annuities, charges and encumbrances whatsoever. The said price of £16 0s. 0d. per statute acre shall be paid and accepted in full satisfaction of all claims in respect of or in anywise arising out of such acquisition. The said lands when so acquired by the County Council of the County of Clare shall form part of the drainage works but shall not otherwise be included in the Charging Order hereinafter mentioned.

(B) That subject to the necessary legislation enabling them in this behalf being enacted the County Council of the County of Clare shall relieve the owners of the said lands to be so acquired from all liability for all arrears of rates due in respect of the said lands to be so acquired and shall take all necessary steps to relieve the Plaintiffs from such liability.

(C) That subject to the necessary legislation enabling them in this behalf being enacted the County Councils of the Counties of Clare and Galway shall provide a sum not exceeding £6,000 0s. 0d. in the proportions hereinafter mentioned to defray the payment of the following sums:—

Firstly—in payment of the balance of the purchase money of the said lands to be so acquired after allowing for the sum of £2,500 0s. 0d. hereinafter mentioned which is to be provided by the Commissioners of Public Works in Ireland towards the cost of acquisition of the said lands;

Secondly—in payment to the Plaintiffs of their costs of deducing title to the said lands to be acquired when taxed and ascertained;

Thirdly—in payment of the costs of the County Council of the County of Clare of acquiring the said lands and taking Conveyances thereof as taxed between solicitor and client ;

Fourthly—in payment of the Plaintiffs' costs of this action as taxed between party and party, subject to the right of the County Council of the County of Clare and the County Council of the County of Galway to set off pro tanto against the Plaintiffs' said taxed costs and to retain thereout the respective amounts of the taxed costs of the County Council of the County of Clare and the County Council of the County of Galway ordered to be paid by the Plaintiffs under the Order of the High Court dated the 14th day of November, 1938 ;

Fifthly—in payment of the costs of the County Council of the County of Clare of this action as taxed between solicitor and client and of the expenses incurred by the County Council of the County of Clare in connection with this action ;

Sixthly—in payment of the costs of the County Council of the County of Galway of this action as taxed between solicitor and client provided that if the sum of £6,000 0s. 0d. after making the payments herein-before mentioned shall be insufficient to discharge in full the said costs of the County Council of the County of Galway then the County Council of the County of Galway shall raise such sum of money by means of the Poor Rate as a County-at-large Charge on the County of Galway as may be required to meet the deficiency.

(D) That subject to the necessary legislation enabling them in this behalf being enacted the County Council of the County of Clare and the County Council of the County of Galway respectively shall raise by way of loan as hereinafter provided the aforesaid sum not exceeding £6,000 0s. 0d. the repayment whereof shall be secured by the respective County Funds of the said Councils and by means of the Poor Rate as a County-at-large Charge on each of the said Counties in the proportion of ·01159 for the County of Galway and ·98841 for the County of Clare, or the County Council of the County of Galway may, if it so desires, pay its proportion of the said sum not exceeding £6,000 0s. 0d. out of revenue instead of raising such proportion by way of loan.

2. AND IT IS HEREBY CONSENTED AND AGREED by

and between the Plaintiffs, the Commissioners of Public Works in Ireland and the Minister for Finance and the County Councils of the Counties of Clare and Galway as testified by their respective Common Seals hereunto affixed and by the signatures of their respective solicitors as follows:—

(A) That subject to the necessary legislation enabling them in this behalf being enacted the Commissioners of Public Works in Ireland shall out of moneys to be provided by the Oireachtas contribute the sum of £2,500 0s. 0d. towards the cost of acquisition of the lands coloured green on the map annexed hereto.

(B) That the capital sum of £11,172 11s. 3d. expended in the Fergus Drainage District under the Drainage Maintenance Act, 1924 , with the addition of a sum equal to 75 per cent. of the total amount of the costs and expenses of and incidental to the preparation and completion of the Charging Order hereinafter mentioned, shall be a charge on the lands included in the Fergus Drainage District, other than the said lands hereinbefore referred to which are to be acquired by the County Council of the County of Clare, and be repaid by the Proprietors of such lands in such proportions as shall be determined by a Charging Order to be made by the Commissioners of Public Works in Ireland, the proportion of the said sums of £11,172 11s. 3d. and the costs and expenses aforesaid for which the County Councils of Clare and Galway shall respectively be liable for the repayment of under such Charging Order when made to be a Charge on the County Fund of each of the said Councils and repayable to the Commissioners of Public Works in Ireland by the respective Councils by half-yearly payments over a period of twenty years.

(C) That subject to the necessary legislation enabling them in this behalf being enacted the Commissioners of Public Works in Ireland shall waive their claim to interest accrued to the date of the Charging Order mentioned in the last preceding paragraph hereof on the capital sum of £11,172 11s. 3d. expended by them in the Fergus Drainage District pursuant to the provisions of the Drainage Maintenance Act, 1924 .

(D) That subject to the necessary legislation enabling them to do so being enacted the Commissioners of Public Works in Ireland shall out of moneys to be provided by the Oireachtas execute and carry out under the supervision of an Engineer appointed by them such works as they may deem necessary to give effect to the recommendations contained in paragraphs 1, 2 and 4 of the Report made by Messrs. P. H. McCarthy, F. Dowling, George Lee, J. P. Candy and Alfred D. Delap on the 25th day of May, 1939, a copy whereof is annexed hereto AND ALSO to provide an automatic tidal sluice or sluices at Clarecastle Bridge in order to shut out the tide from the embanked section as recommended in paragraph 3 of said Report all of which said works are estimated to cost £21,500 0s. 0d. PROVIDED ALWAYS that such sluice or sluices can be procured and PROVIDED FURTHER ALWAYS that in the opinion of such Engineer the provision of such sluice or sluices will not cause danger to persons or property in the neighbourhood of the river AND IT IS FURTHER AGREED that in the event of the non-erection of the said sluice or sluices the said Commissioners will consult with the County Councils of the Counties of Clare and Galway with a view to the provision within a limit of cost of £12,000 0s. 0d. (being part of the said sum of £21,500 0s 0d.) of a suitable alternative safeguard for the embanked section aforesaid and will, if possible, provide such suitable alternative safeguard AND IT IS HEREBY AGREED AND DECLARED that a Certificate under his hand given by the Engineer for the time being employed by the Commissioners of Public Works in Ireland that the works aforesaid have been completed shall be conclusive, final and binding evidence that such works have been completed and carried out in every respect.

(E) That the Minister for Finance and the Commissioners of Public Works in Ireland shall bear their own costs of this action.

(F) That the Commissioners of Public Works in Ireland shall out of moneys to be provided by the Oireachtas expend a sum not exceeding £10,000 0s. 0d. in carrying out such works of restoration and minor improvements in the upper reaches of the River Fergus as the Engineer for the time being employed by the said Commissioners may deem necessary.

(G) That subject to the necessary legislation enabling them in this behalf being duly enacted the Commissioners of Public Works in Ireland shall out of the Local Loans Fund and at such interest as the Minister for Finance shall direct advance on loan to the County Council of the County of Clare and the County Council of the County of Galway such moneys as the said Councils shall respectively require to meet their respective obligations hereunder and that the sums so advanced with interest as aforesaid shall be repaid to the said Commissioners by the said County Councils respectively by half-yearly instalments over a period of twenty years from the date of such advance, or the County Council of the County of Galway may, if it so desires, pay out of revenue the amount which it is bound to contribute hereunder.

3. AND the Minister for Finance hereby AGREES testified as aforesaid with the Commissioners of Public Works in Ireland and the County Councils of the Counties of Clare and Galway that he will submit to the Oireachtas such Bill or Bills as may be necessary to enable the Commissioners of Public Works in Ireland and the County Councils of the Counties of Clare and Galway to give effect to this Agreement.

4. AND IT IS HEREBY CONSENTED AND AGREED by and between the above-named Plaintiffs and the above-named Defendants the County Councils of the Counties of Clare and Galway, the Commissioners of Public Works in Ireland and the Minister for Finance testified as aforesaid that this action shall be settled and all claims by the Plaintiffs be waived and surrendered on and in consideration of the terms mentioned above and that this Consent shall be received by the Court and this action be stayed until further Order with liberty to all parties to apply as the case may require.

IN WITNESS WHEREOF the Plaintiffs have hereunto signed their names and the County Council of the County of Clare, and the County Council of the County of Galway, the Commissioners of Public Works in Ireland and the Minister for Finance have caused their respective Common Seals to be affixed hereto and the respective solicitors for the said parties have hereunto signed their names.

Signed by the said Michael Glynn, James McCormack, Michael Hogan, Patrick Roughan, John Barry, Michael Kearney, John O'Loughlin,

(Signed)  Michael Glynn

Timothy Barron

James McCormack

Michael Hogan

Patrick Roughan

Mary McInerney, Patrick McCallin, Patrick McInerney, Patrick Barry, Patrick McInerney and Catherine Daly in presence of:—

Gerald J. O'Donnell,

Ennis,

Co. Clare,

Solicitor.

Catherine Daly

Michael Kearny

John O'Loughlin

Mary Mclnerney

Patrick McCallin

Patrick McInerney

Patrick McInerney

Patrick Barry

John Barry.

Signed by the said Timothy Barron in the presence of:—

James O'Mara,

Beech Lawn, Ennis,

Commercial Traveller.

Signed by Messrs. Kerin, Hickman & O'Donnell, Solicitors for the Plaintiffs, in presence of:—

John J. Coghlan,

Law Clerk, Ennis.

(Signed) Gerald J. O'Donnell, for Kerin Hickman & O'Donnell.

The Common Seal of the County Council of the County of Clare affixed hereto in presence of:—

/images/en.act.1943.0013.13.1.png

(Signed) Seán O Brádaigh,

Chairman of said Council.

M. J. Carey,

Secretary to said Council.

(Signed) William Murphy,

Member of said Council.

(Signed) Edward F. Kerin,

Member of said Council.

Signed by Thomas A. Lynch, Solicitor for the County Council of the County of Clare, in presence of:—

(Signed) T. A. Lynch.

John B. Lynch,

5 Bindon St., Ennis,

Solicitor.

The Common Seal of the County Council of the County of Galway affixed hereto in presence of:—

/images/en.act.1943.0013.13.1.png

C. I. O'Flynn,

Secretary to said Council.

(Signed) P. Beegan,

Chairman of said Council.

(Signed) Patrick Fury,

Member of said Council.

(Signed) Tomás Mac an Ríogh,

Member of said Council.

Signed by L. E, O'Dea, Solicitor for the County Council of the County of Galway in presence of:—

(Signed)

Lughaidh E. O Deaghaidh.

John J. Concannon,

Solicitors Assistant,

Galway.

The Common Seal of the Commissioners of Public Works in Ireland affixed hereto in presence of:—

(Signed) Geo. P. Fagan,

Secretary.

J. G. Lonergan,

S. S. Páircéir.

Office of Public Works,

Dublin, Civil Servants.

/images/en.act.1943.0013.13.1.png

The Common Seal of the Minister for Finance affixed hereto and was authenticated by the signature of

J. J. McElligott,

(Signed) J. J. McElligott.

a person authorised to act in that behalf in presence of:—

Brian Ο Brolcháin,

Government Buildings,

Upper Merrion St.,

Dublin.

Civil Servant.

/images/en.act.1943.0013.13.1.png

Signed by Patrick Coll, Solicitor for the Commissioners of Public Works in Ireland and the Minister for Finance in presence of:—

(Signed) Patrick Coll.

FERGUS DRAINAGE DISTRICT.

Glynn and Others versus Clare County Council and Others.

Following upon the recommendation made by Mr. Justice Gavan Duffy, at the adjournment of the above case on the 24th January, 1939, we, the engineers representing all parties in this case, met in conference at the Office of Public Works on 25th May, 1939, to consider various proposals prepared by the Chief Engineer, Office of Public Works, for dealing with the embankments problem in the Ennis-Clarecastle section of the Fergus Drainage District.

Due to the peculiar natural conditions obtaining in this section of the Drainage District the hydraulic problem presented is one of great complexity. These conditions render the stability of the embankments precarious. We are of opinion that to afford reasonable protection to the lands behind the embankments it is essential that the water level within the embanked area be controlled.

We are agreed that the most suitable means of effecting this solution is as follows:—

1. To abandon the area north of the Ennis-Quinn Road on the east bank, approx. 272 acres (coloured green on map), thereby providing a reservoir for the flood waters.

2. To construct protective works along the Ennis-Quinn Road from Doora Bridge to Crows Bridge (marked A-B on map) in order to exclude flood waters from entering the area south of the Ennis-Quinn Road (east bank) coloured yellow on map. The present opening at Crows Bridge to be closed and the flow through this bridge to be diverted northward to the Gaurus River.

3. To provide automatic tidal sluices at Clarecastle Bridge in order to shut out the tide from the embanked section.

4. To make good the remaining embankments in the section, viz., the portion from C to D on the west bank and the portion A to E on the east bank and recondition drains and sluices.

Signed: P. H. McCarthy,

Consulting Engineer.

Signed: F. Dowling,

County Surveyor,

Co. Clare.

 

For Clare and Galway

County Councils.

Signed: G. Lee,

County Surveyor,

Co. Galway.

Signed: J. P. Candy,

Chief Engineer,

Office of Public Works.

For Commissioners of

Public Works.

Signed: A. D. Delap,

Consulting Engineer.

For Messrs. Glynn and

others.

Messrs. McCarthy and Dowling and Lee were of opinion that having regard to the peculiar conditions obtaining in the Ennis-Clarecastle section of the Fergus Drainage District the County Councils should be relieved of their maintenance obligation for the drainage works in this portion of the district for the future.

Signed: P. H. McCarthy,

Consulting Engineer.

Signed: F. Dowling,

County Surveyor,

Co. Clare.

Signed: G. Lee,

County Surveyor,

Co. Galway.