Judge rejects legal challenge over access to Lough Eskragh near Dungannon

Eskragh Lough
Eskragh Lough

A Dungannon land owner has lost a High Court battle over access to a nearby lake used for fishing and water sports.

Joseph McNulty was seeking declarations that he and other members of the public have a right of way to Eskragh Lough for recreational, domestic and agricultural purposes.

He also claimed trespass on his land by Donovan Ross, owner of the stretch of water outside Dungannon.

But on Friday, a judge dismissed his legal action after rejecting all grounds of challenge. Lord Justice Gillen held there was no evidence of any right of passage having been dedicated to the public.

He said: “The tolerance of swimmers or fishermen from time to time strolling in this area did not in my view amount to such dedication.”

Mr Ross and his wife acquired the lough for £100,000 back in 2001.

Since then he has developed it for commercial purposes, including trout fishing and water-based activities.

The lough has since been operated as a fishery and outdoor pursuits centre.

Casual swimming is no longer permitted due to the requirement for a lifeguard and insurance issues, the court heard.

Mr McNulty, whose family roots are in the area, lives on land adjoining fields that run down to the shores.

The two men were said to have been in a long-running dispute over Mr Ross’ decision to fence off the water from the fields.

According to Mr McNulty that interfered with his rights to access and use Eskragh Lough.

In an action first rejected by a County Court judge, he claimed Mr Ross had trespassed on his land.

He also sought declarations and an injunction to stop the defendant preventing access through the land.

It was asserted that generations of his family had got down to the lough through his back for a range of purposes, including:

:: To draw water for domestic use.

:: For cattle to drink.

:: For swimming, sunbathing and fishing - pursuits shared by members of the local community.

In a case based on alleged prescriptive rights, the plaintiff had to show continuous use for a period of at least 20 years.

Lord Justice Gillen ruled that no trespass had been proven, pointing out that conveyance of the land to Mr Ross unequivocally stated the lough’s bed and soil were within his ownership.

Rights to swim, sunbathe, or fish in the lough were not established, he held.

Rejecting further claims about the entitlement of cattle to drink, the judge said this may have been “sparingly tolerated” while water would have needed to be clear and sterile.

Dismissing Mr McNulty’s appeal, Lord Justice Gillen said: “It is inconceivable that the public could have had a right of way across this area in the circumstances.”