Adverse Possession of a Highway II

Last year we reported the decision R (Smith) v Land Registry [2009] EWHC 328 (Admin) in which the High Court held (amongst other things) that it was impossible to acquire land by adverse possession if that land was subject to a public highway. At the time I expressed my concern about the soundness of that conclusion and so it is rather pleasing to find that on appeal in R (Smith) v Land Registry [2010] EWCA Civ 200, the Court Appeal agree with me.

To recap: the claimant lives in a caravan on land to the North of road which is a part of the public highway, even though it is not itself metaled. He claims that, by adverse possession, he is entitled to have his title to the land registered.

My view was that this was bound to fail because: (i) a highway cannot be extinguished by adverse possession (the “once a highway, always a highway” point); and (ii) section 263 of the Highways Act 1980 vests the surface of any highway maintainable at public expense (as this one was) in the local authority. The same analysis was applied by Elias LJ and Mummery LJ in the Court of Appeal. Orthodoxy, in my view anyway, is restored.

I had also doubted whether a statement by Mummery LJ in the earlier case of London Borough of Bromley v. Morritt [1999] EWCA Civ 1631 that property could not be acquired by adverse possession over land subject to a public right of way could be correct. Mummery LJ helpfully clear this up:

In the court below, counsel for the Land Registry cited a passage from London Borough of Bromley v. Morritt [1999] EWCA Civ 1631 in which, without any display of law, I said-

“As a matter of law, an adverse possession or squatter’s title cannot be acquired to land over which a public right of way exists.”

In that case the court had not had the benefit of clear legal submissions on the point — in particular the appellant was a litigant in person —. I think that “without any display of law” is a very neat and gracious way of the judge to put it.

My last post on this subject generated a lot of feedback – ranging from those who equated adverse possession with theft, to those who felt the court ought to have made the doctrine more expansive. I should make it clear that I am not unsympathetic to Mr Smith’s plight. Successive governments have passed laws making it increasingly difficult for people, especially Romani Gypsies, to exist in England and Wales lawfully, without providing them with any alternatives. That, on any analysis, seems irrational (since the alternative may be to house them using public funds which as readers know is not in generous supply) and unfair.

What seems to be the problem here is s.263 of the Highways Act 1980. Earlier acts, up to section 29 of the Local Government Act 1929, vested not the whole highway but the “road” in the local authority. While “road” did include the footway beside the road, it did not include roadside wastes such as Mr Smith inhabits (Curtis v Kesteven County Council (1890) 45 Ch D 504) and it might be useful — for legal certainty if nothing else — if that were still the situation. For some reason the drafters of the 1980 Act decided to extend the vesting to the whole of the highway beyond merely the road.

The court did not consider the “illegality” argument which had been put forward by the Council at first instance, namely that because Mr Smith’s occupation of his property was illegal, he could not thereby gain adverse possession of it.

Posted in Adverse possession, Uncategorized and tagged , , .

16 Comments

  1. Two corrections to Francis’s piece:
    1) you obviously meant to say s263 of the Highways Act 1980;
    2) Roma is a term generally used to describe Gypsies from Eastern Europe (who have not been nomadic for a very long time). However you are correct with regard to the difficult situation for Romani Gypsies (the normal term used for British Gypsies) like Mr Smith.
    And, as you point out, this case relates to highways maintainable at the public expense and the point that found favour in the high court ( cannot rely on a ‘criminal offence’ i.e. obstruction of the highway) was not relied on by the CA.
    I still can’t square the CA reasoning with the ‘river cases’ of PLA v Ashmore and Roberts v Swangrove but hi ho…
    OK back to the eviction cases and the civil bid maelstrom!

  2. Chris,

    Thanks for that. I’ve made both those corrections. I am afraid I was a bit hazy as to the correct ethnonym to use.

    The difference with river cases like Ashmore is that there’s an automatic statutory vesting of the land over which the highway runs into the hands of the local authority so that as if by magic any adverse possession is doomed to fail.

  3. Hi Francis
    Thanks. I’ve just learnt a new word!
    I am going to resist getting dragged into a discussion of the river cases!! Ever since the Land Registration Act, when I come to the (sometimes successful I hasten to add) end of an adverse possession case I think surely I won’t be instructed on another one…and then another one appears. So you never know!!

  4. Just got instructed today on another one!!?? (see previous comment). A case on dry land though I hasten to add.

  5. I am somewhat envious, they almost never come my way. I tend to get lots of easement prescription/long use/lost modern grant cases.

    • If You would like an to do 1 I am currently fighting the PLA the courts. PLA took me to court as a squatter on the thames just upriver from Ashmore…. I defended saying tied to riparian land that is not pla property therefore not the business of pla – See para 4 & 35b,c&d of ashmore and para 2 sect. 690 of halsbury 87-97 vol 101 See also the legal opinion of Robin Purchas QC taken from the PLA study on houseboats and moorings,,,,
      County ct jDJ ruled for pla that I am squatter.

      I countered and applied to set aside judgments and strike claim out for following reason…. As the court had judged for the pla that I am squatter I claim the rights to title as I had been moored for 14 and half years before they began action therefore must be struck out due to LA 1980. s15(1). DJ who made judgment refused to set himself aside and ruled that I must appeal… However he refused leave to appeal at original hearing…. Surely where I have demonstrated with google earth pic and statements from neighbours that I had been there since 97 at the latest and they took action in 2011 it is for the PLA to appeal the Lim Act …

      Any help with this very welcome as I am back in court to try and get boat back for the second time tomorrow….

      Urgent business office QBD court 37 West green bldg RCJ tomorrow at 10am…..

        • I am afraid we don’t generally respond to requests for help through the website simply because we are generally very busy and making the time to help can be difficult, especially on such short notice as this.

          I hope your case went well.

          • Hi Thames Cruiser… Text me asap on 07568 517946 and will call you back…

            Have a hearing at the Court of Appeal on 2/12/2014

            Am having so much trouble with this – none of the courts will acknowledge the Limitation Act and keep dismissing nt applications for a ruling on Limitation… Even Court of Appeal application rejected on as having no merit… What is the point of Limitation Act if Courts won’t acknowledge it exists and is a preliminary issue to be tested not an issue for appeal after judgment has been given. … Dangerous Times for people

  6. can a legal right of way over private land be extinguised by adverse possession where the claimant himself has a legal right of way over that land in common with the freeholder of the land, but the claimant has built something over part of it for 20 years?

    • @Sam, that sounds dangerously close to asking us legal advice about a specific case (which of course we don’t do). A couple of pointers though:

      – Rights of way (and in fact all easements) cannot be extinguished by adverse possession. If there is an easement in favour of blackacre over whiteacre and X adversely possesses whiteacre, they take it subject to the easement.

      This is (I think) pretty orthodox law. There was a recent case in which someone was prevented from enforcing (the total extent of) an easement via a form of estoppel because they had allowed the servient owner to build on the pathway. A complicated case and I’m not sure what to make of its facts.

      – There’s no reason why the owner of the dominant tenement could not also adversely possess the servient tenement, and in fact that might often happen, but of course the extent of their adverse possession would have to go beyond mere use of the easement.

      • Funny you should bring that up, Francis, as I was talking to a colleague only the other day about the logic of the rule in your second paragraph. We both agreed it was illogical, but my mind wandered and now I can’t remember why. What’s your view?

      • Hi all, I just found this and thought I would add my 2p worth. The Adverse Possession possibility of Easements leaves a lot to be desired. I will describe our particular situation, because it is a clear example, but I am not looking for legal advice on this circumstance. I would just be interested in the views on the principle…

        We have a private, unadopted lane serving a number of properties. The title to the lane is unregistered and the “owner” cannot be located (the land either side of the lane was first sold off almost a hundred years ago – I don’t think this is an uncommon circumstance).

        Now, one of the landowners with frontage on the lane extends their fence into the lane by a few feet. A bit of a nuisance, but not enough to classify as a “substantial interference” (Waterman v Boyle and several precedents). After 12 years, title to it is claimed by Adverse Possession. The fence is then moved another few feet into the lane, etc.

        If it was initially moved 10 feet, say, then it would immediately be arguable that it was a private nuisance. But three feet probably doesn’t qualify. When does it reach the stage that it becomes actionable?

        I suspect there is no answer – it would have to be tried. In any case, though, by the time someone was ready to risk testing it in Court, the land grabber would already have 6…8…10 feet that could no longer be returned to service the Easements because (a) the land grabber would have title and (b) because others could not demonstrate they had previously been able to enjoy the benefit of the Easement over that grabbed land… Without the lane owner in the picture, there is nothing anyone else can do about it!

  7. Dear Nick
    This sounds very, very late in the day and probably too late already, but, WITHOUT ANY PROMISES WHATSOEVER (plus we only do legal aid cases) you could try phoning the Travellers Advice Team National Advice Line on 0121 685 8677 Monday to Friday 9am to 5pm. Just speak to whoever is on the phone. However if you are not eligible for legal aid we will only be able to suggest other firms you can try.
    Hope NL don’t mind us doing a bit of advertising here but this is a very esoteric area and very few people deal with it.

  8. By the way this is not touting since Mr Hale is effectively responding to a post from me, albeit that post was 3 years ago!!

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