Posted by: RM | June 2, 2009

Adverse Possession of River Bed

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.


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.


  1. 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
    (and the case is going to appeal).

  2. 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.

  3. 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.

    • Articles like this just make me want to visit your wsebtie even more.

  4. 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 🙂

  5. 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?

  6. Sincere apologies for the delayed response to your comment – have been exceptionally busy for a while and have only just found the time to think properly about what you have said!

    Regarding your first point – a claimed easement over a village green – I suspect you may well be right about the potential for breaching the provisions of the Victorian statutes. Whilst in Bakewell it would have been possible for there to have been a grant of an easement, in the context of a village green, once it is registered, it seems quite probable that the landowner would not be able to grant an easement if it would constitute a nuisance (contrary to the Inclosure Act) or an interference (contrary to the Commons Act). I suspect that each case might end up turning on its own facts to some extent depending upon whether any claimed right would be unlawful for these reasons.

    Your second point – regarding adverse possession of a common (unregistered title) – yes, I quite agree that the notion of a grant has no relevance here (nor does in relation to the operation of the rules of prescription in every context in which those rules operate – in the context of the registration of new greens, of course, there is no underlying fiction there, unlike in relation to easements, say). I am not aware that the principle ex turpi causa non oritur actio applies in the context of claims based upon adverse possession. Given that those who claim title to land by adverse possession will have been in occupation of that land without lawful authority, their occupation will have been unlawful (whether or not it offends statutory provisions which prevent inclosure, for example, as well as violating the landowner’s property rights). I think that as long as the requirements for a successful claim based upon adverse possession are met then it will succeed (to the extent that the adverse possessor will be able to claim title to the land). Of course, even if title is ultimately transferred because of a successful claim in adverse possession, that would not preclude those who have rights (of common perhaps) from complaining and then demanding that any unlawful inclosure is removed. I think I would view these two issues as being distinct (although in practice a court may not do so – it is always difficult to think about these things in the abstract – much more helpful if one has a set of ‘real facts’ against which to consider such issues – however, if an adverse possessor has been in occupation of land for 12 years and those with rights of use have not complained, a court may not be quite so sympathetic if it is felt that they have ‘sat on their rights’ for such a long time).

    I think you have identified two very difficult issues and I am not sure that I will have added anything helpful! Thanks for taking the time to comment…


  7. Interestingly Defra makes a distinction between a civil wrong ( not just trepass on which adverse possession is of course based but also breach of statutory requirements eg s194 LPA1925 or s38 Commons Act 2006) and a criminal act eg S12 Inclosure Act 1857 or s29 Commons Act 1876 ( when it may be the courts would not uphold a claim to adverse possession). This seems to me quite convincing.

  8. Yes, I agree that there is a distinction here which might well be relevant as far as a court might be concerned. I suppose that in practice I would find it hard to imagine that anyone could successfully adversely possess part of a village green for the requisite period without someone who has a right to use that green kicking up a stink! That said, if they did, then I think the criminal / civil wrong distinction might well be quite a compelling one.

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