Posted by: RM | February 5, 2010

Adverse Possession of the River Bed: The Saga, Part II

The Court of Appeal has delivered its eagerly awaited judgment in The Port of London Authority v Ashmore [2010] EWCA Civ 30.  The facts are, briefly, as follows:

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…


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