Mr Ashmore owns a boat, “Atrato”, which he has moored at Albion Wharf, Battersea, for twenty five years or more. The Port of London Authority (“the Authority”) sought to register title to the bed and foreshore of the river, to include that part of the river on which the Atrato was moored. Mr Ashmore objected to the Authority’s application for first registration on the ground that he had acquired title to, at least, that part of the bed and foreshore of the river on which the Atrato rests at low tide by virtue of his adverse possession of the same. Following his objection to registration the Authority commenced proceedings against Mr Ashmore seeking, amongst other things, an order requiring the removal of the Atrato and an injunction preventing its return without the Authority’s licence. Mr Ashmore responded to the issue of proceedings by saying that, in his view, the outcome of the case would depend upon the answer to the following question: whether it is possible to acquire land by adverse possession of the foreshore and / or the sea or river bed by reason of mooring. The Authority seemed to have agreed that this issue was central to the eventual determination of the dispute and so it was ordered, by consent, that the following should be tried as a preliminary issue:

Whether it is possible for the owner of a vessel that is moored in a particular place on a tidal river or other area of tidal water to acquire title by adverse possession to the sea or river bed or the foreshore for the footprint of that vessel where:

(a) the title to the sea or river bed or the foreshore has not been registered; and

(b) the vessel rests on the bed or the foreshore at low tide.

For the purposes of determining the preliminary issue the Authority was required to prepare and serve on Mr Ashmore a statement of assumed facts. It was on the basis of those assumed facts that the Deputy Judge of the High Court in the Chancery Division, Mr Stephen Smith QC, was to make his determination on the preliminary issue of law. During the course of the proceedings counsel for the Authority made what the Deputy Judge described as “two important concessions of law”: (i) that, in principle, title to the bed of a tidal river can be acquired by adverse possession; and (ii) that the fact that the River Thames where Atrato is moored is subject to the public right of navigation would not, of itself, prevent title to the bed or foreshore being acquired by adverse possession. This point will be returned to later.

Stephen Smith QC, in his judgment, reviewed some of the well known authorities such as Roberts v Swangrove Estates Ltd [2007] EWHC 513 (Ch), J A Pye (Oxford) Ltd and another v Graham and another [2003] UKHL 30, Powell v McFarlane and another (1977) 38 P & CR 452, Buckinghamshire County Council v Moran [1990] Ch 623 and Red House Farms (Thorndon) Ltd v Catchpole [1977] 2 EGLR 125, all of which dealt with the acquisition of title to unregistered land by adverse possession.  It was acknowledged that in order to succeed in a claim of adverse possession it is necessary to establish both factual possession and the intention to possess (the animus possidendi). At the risk of oversimplifying the decision of the lower court (by my omitting to set out in any detail the analysis which was undertaken by the judge), Stephen Smith QC determined that:

… it is possible for the owner of a vessel that is moored in a particular place on a tidal river to acquire title by adverse possession to a part of the river bed where the title to the river bed has not yet been registered and the vessel rests on the bed at low tide. Indeed, since I have heard full argument on the point, I would go further and find that in this case Mr Ashmore has established the necessary fact of possession and the intention to possess, to have acquired title to the relevant part of the bed of the Thames adjacent to Albion Riverside.

The problem in this case is that what was to be determined in the original proceedings was based upon the assumed facts which had been prepared purely for the purpose of adjudicating upon the preliminary issue. Sir John Chadwick, giving the judgment of the Court of Appeal, stated:

The task of the courts, as it seems to me, is to decide cases on their facts in accordance with principle. The principles applicable to the acquisition of title to unregistered land by adverse possession are well established. The proper course, in the present case, is to determine what the facts are – a task which should not be unduly difficult – and then to apply those principles to the facts as determined (para [21]).

The statement of assumed facts does not have the status of a pleaded case … it was produced only for the purposes of the trial of the preliminary issue “and without prejudice to the parties’ respective pleaded cases”. It cannot be treated as a definitive or exhaustive statement of facts which either party would wish to advance at a trial … A decision on assumed facts which are neither definitive or exhaustive could not be determinative of the outcome at a trial (para [24]).

The upshot being that the parties have now found themselves, to all intents and purposes, back at square one in respect of this issue. Stephen Smith QC’s declaration in response to the question whether it is possible to acquire title by adverse possession to the sea or river bed in the circumstances posed by the parties was set aside by the Court of Appeal. This was because he had made a declaration in response to the hypothetical question  (hypothetical because it was predicated upon assumed facts) but had, in his judgment, said that he found that Mr Ashmore had, in fact, established the necessary fact of possession and intention to possess to have acquired title to the relevant part of the bed of the Thames. Therefore, the Court of Appeal concluded that “the declaration … is in terms which do not properly reflect the judge’s conclusion”.

Given that the judge recorded in his judgment  that counsel for the Authority had made two important concessions of law, the first being that, in principle, title to the bed of a tidal river can be acquired by adverse possession, it is highly questionable whether it was ever actually necessary to then adjudicate upon the preliminary question. The Court of Appeal’s judgment concluded:

…The issue raised in general terms [by Mr Ashmore] … is no longer contentious (if it ever was). It is accepted by the Authority that it is possible, in appropriate circumstances, to acquire title by adverse possession of the foreshore and river bed by reason of mooring. The question in this case has been, and remains, whether – on the facts as established (not on assumed facts) – Mr Ashmore has done so. That question needs to be tried. If I may say so, delay and expense would have been saved if it had been appreciated that (given the Authority’s decision to accept, in principle, that the title to the foreshore and river bed could be acquired by reason of mooring) this was not a suitable case for a preliminary issue.

Back to the High Court for the Authority and Mr Ashmore then. Watch this space…

The claimant (“C”) claimed damages for trespass against the first defendant (“D1″) in relation to a hoarding which had been erected on a shared boundary wall between C and D1′s properties (D1 was a long leaseholder who subsequently appears to have acquired the reversionary interest in the freehold). The C’s land had originally been owned by the Railway Executive which had granted D1′s predecessors in title consent to erect such a hoarding. The second defendant third party (D2) had obtained planning permission to erect the hoarding (which permission had previously been refused by the planning authority) and D1 had granted D2 an exclusive licence for D2 to do so. D2 removed the hoarding when requested to do so by the C’s predecessor in title and played no part in the proceedings.

D1 defended the claim on the basis that (1) the Railway Executive’s original consent had lapsed and D1 had, by operation of the doctrine of adverse possession, acquired possession of what was otherwise C’s airspace; and (2) in the alternative, D1′s right to maintain a hoarding on the boundary wall had passed to D1 by operation of section 62 of the Law of Property Act 1925 upon conveyance of the reversionary interest in the freehold to D1.

Both defences were rejected by the court. In response to (1) it was held that the consent originally granted by the Railway Executive (a previous owner of C’s land) was not limited in its terms and subsisted until such time as it was expressly revoked by C’s immediate predecessor in title (who had assigned any right to damages arising from an action in trespass to C). Therefore, even if possession of airspace was theoretically possible, in this case such possession was by consent and, therefore, not adverse to the owner. The limited analysis which I have been able to find (Lawtel and Westlaw) says that there was obiter to the effect that it was doubtful whether title to an area of airspace not contiguous to land under it could exist at law; the right to airspace was contingent on the right to own the land under it. These responses by the court raise a couple of interesting questions (the absence of a full transcript of the judgment makes it impossible to determine whether these issues were fully explored by the court). Firstly, can the consent which was given by the Railway Executive really be said to have endured (at least) two subsequent changes in ownership, unless expressly renewed? And secondly, why would there be doubt that is it theoretically possible to be in possession of airspace?

In answer to the first point, clearly it would be necessary to know the full facts but it seems unlikely that a permission which is personal and revocable could survive a change of ownership without something more (say, the operation of section 62 which I will come to shortly). Regarding the second point, if real property is capable of ownership, it is surely capable of being adversely possessed, subject to the test for actual possession which is adverse to the paper owner and the requisite animus possidendi being met. Whilst they are rare in practice, flying freeholds demonstrate that it is not necessary, in order to own property, to own the actual soil over which the property concerned is situated.

In respect of (2) the court held that section 62 could not be established to have applied because the conveyance concerned (ie the conveyance of the reversionary interest in the freehold) had not been put in evidence and it was, therefore, impossible to determine whether there was anything in the conveyance to expressly exclude the operation of section 62 as required by section 62(4). It was also said that, in any event, even if the section did apply (which it had been held not to), the enjoyment of the right would not have afforded itself to D1 as lessee (which it was prior to acquiring the reversionary interest in the freehold) but would have been for the benefit of the freehold owner.

It is very difficult to make any further comment on this case given the woeful lack of information available. However, it does appear that it may well raise some extremely interesting points which might warrant further consideration if the transcript of the judgment ever becomes widely available. If anyone out there finds it before I do, please pass it on!

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.