In a recent decision of the High Court, Port of London Authority v Ashmore, it was held that a claim to title of part of the river bed of the River Thames should succeed on the basis that the defendant, Mr Ashmore, had been in adverse possession of it for 26 years.
Mr Ashmore owned a flat bottomed boat, Atrato, which he had moored at Albion Wharf (now Albion Riverside), close to Battersea Bridge, from 1983 until the present day. During that time the boat was permanently moored there with the exception of a two month period five years ago when the boat was moved to dry dock for an overhaul. Otherwise the boat was secured in position by way of an anchor and tethering to the bank. Atrato would come to rest on the river bed twice a day at low tide.
The Port of London Authority wished to register title of the bed of the Thames. However, Mr Ashmore objected to the registration of that part of the river bed upon which his boat had come to rest twice a day. He objected on the basis that he had adversely possessed that part of the river bed for the requisite period prescribed by section 15(1) of the Limitation Act 1980 which contains the relevant provisions regarding unregistered land.
Mr Stephen Smith QC, sitting as a Deputy Judge of the Chancery Division, rejected the notion that a squatter must prove some physical contact with the land at all times. He observed that when the land which is the subject of the claim is part of the bed of a tidal river which is flooded twice a day, the fact that the squatter’s boat rises and falls does not constitute the relinquishment of physical possession of the land upon which the boat comes to rest at low tide. Concluding that Mr Ashmore had demonstrated both factual possession and the intention to possess the land, he succeeded in his claim to title of the land by adverse possession.
Two points which were not addressed in the judgment were (1) the question whether the public right of navigation will be obstructed by Mr Ashmore’s successful claim to title of the part of the river bed of which he had been in possession, and (2) whether the riparian owner (who is not the Port Authority) could prevent Mr Ashmore from gaining access to his boat from the river bank or from tethering his boat to the mooring rings thereon.
Postscript:
For another (more detailed!) discussion of this case see Nearly Legal’s blog here and for discussion of a claim of adverse possession of a highway, see here.
One can compare and contrast with R (Smith) v Land Registry (Peterborough) [2009] EWHC 328 (Admin), decided at about the same time, which was about adverse possession of a highway.
We have a detailed view on why this is wrong by Francis Davey on Nearly Legal
http://nearlylegal.co.uk/blog/2009/05/adverse-possession-of-a-highway/
(and the case is going to appeal).
By: Nearly Legal on June 5, 2009
at 12:04 am
Thanks NL – I shall look forward to the appeal on that one. As you say, the comparison is interesting in that in Port of London Authority v Ashmore the court was clearly prepared to accept that a claim under the principles of adverse possession could succeed even if the nature of the possession actually constitutes an offence. However, I am not quite so sure that the applicability of the principles in Bakewell Management Ltd v Brandwood should be dismissed on the basis upon which they are. FD’s post identifies that the Bakewell case concerned the acquisition of a right by prescription rather than adverse possession, notes that it is contextually different and that there is a distinction between rights based on wrongs and rights based on right.
However, given recent developments in the law on prescription I do not think that the “as of right” and “as of wrong” divide is so clearly defined any longer. The as of right test clearly requires user to be “as if by right” but Lord Walker in R (Beresford) v Sunderland City Council [2004] 1 AC 889 said that in order for use to be as of right, it must be trespassory (thereby making it nec precario), which is, of course, use which is wrong.
That said, it seems to me that there are robust arguments for distinguishing Bakewell, not so much because the tests for adverse possession and prescription are fundamentally different because I have some difficulty accepting that they are. However, the fact that adverse possession is concerned with a claim to title to land (subject to any incorporeal rights which exist) and prescription is concerned with claiming a right over land may well provide the means of distinction given that the issues of legality do not arise in the context of ownership whereas in the context of exercising rights legality is clearly relevant.
By: RM on June 5, 2009
at 9:34 am
You are quite right to point out that there might not be such a clear distinction between adverse possession and prescription as I (rather dogmatically) claimed but I do think its important to remember that they have completely different juristic bases: the former is a species of limitation of action, the latter originates in a presumption of grant (however fictitious). I am well aware that in some places (such as most US jurisdictions I believe) there has been a total merger of the concept and one reads of “adverse easements”.
I agree completely with the rest of your comment.
I like the new blog by the way! Just what I need to complement Nearly Legal’s housing input. I’ve added you to my feeds. I hope it goes well and I will be keenly watching what you do with it.
By: Francis Davey on June 17, 2009
at 11:28 pm
Francis, thanks for dropping by and leaving a comment. I have no knowledge of the US system – the concept of “adverse easements” sounds fascinating! I shall have to do a bit of reading up on that one. RM
By: RM on June 18, 2009
at 10:00 am
You raise questions which have puzzled me for some time.
It seems there are several distinct points:
1 Bakewell turned on lawful authority and a presumed grant. A claim to an easement over a village green might fail if it involved a breach of S12 Inclosure Act1857 or s29 Commons Act 1876.
2Adverse possession is not a grant . The Statute of Limitations merely prevents the paper owning asserting his title. There is no transferof title from O to S. So say S fences in part of a common and cultivates the land within the inclosure. Nothing is done for over 12 years( the title is unregistered.)Would either of those activities enable him to claim title.Or would he be defeated by the principle ex turpi causa non oritur actio?
By: Angela Sydenham on July 22, 2010
at 9:21 pm