Can you acquire title to land over which a highway runs? There seems to be no reason in principle why not but R (Smith) v Land Registry (Peterborough)  EWHC 328 (Admin) — wrongly in my view — suggests otherwise.
The Claimant had occupied land with his caravan and its associated structures for in excess of 12 years. He applied to the Land Registry to register his title to the land by adverse possession. The land itself formed a part of a public highway open to all traffic. Accordingly the assistant land registrar refused the application for two reasons: (1) “title cannot be acquired to highway by adverse possession” and (2) the Claimant had not shown a sufficient degree of exclusive physical control over the land in question to found a claim for adverse possession.
The Claimant applied for judicial review.
At first glance the case seems quite straightforward. The Claimant accepted conclusion (2) which would (surely?) mean his claim would be bound to fail. Nevertheless the court thought it was useful (given that the Claimant intended to make another application to the registrar) to decide whether conclusion (1) was right.
Even at second glance the case seems relatively straightforward. As any student of land law knows, adverse possession only affects corporeal not incorporeal hereditaments (other than tithes and rentcharges, although a typical student might be forgiven for ignoring them). For example, if a squatter takes over my neighbour’s property, their adverse possession won’t affect any easements my property has over theirs such as a rights of light or way. See s.38(1) of the Limitation Act 1980.
What is more, no amount of obstruction to a highway, for however long will destroy the highway (Harvey v Truro Rural District Council  2 Ch 638). As the saying goes “once a highway always a highway”.
This is relevant because, unfortunately for Mr Smith, s.236 of the Highways Act 1980 provides that every highway maintainable at public expense (as was the one in question) vests in the highway authority “together with the materials and scrapings of it“.
In other words so long as the highway remained a highway the local highway authority (Cambridgeshire County Council) owned and continued to own the top surface of the highway and so Mr Smith’s attempt to acquire ownership of the same was doomed.
Unfortunately that relatively simple approach does not appear to have been enough for the court. Instead the court proceeded to decide that: (1) it is impossible to obtain title to a highway by adverse possession and possibly (2) possession which amounts to a criminal offence cannot found a claim for adverse possession.
The assistant land registrar had based his conclusion on a statement by Lord Justice Mummery in London Borough of Bromley v Morritt. There are two cases of that name, which were heard as conjoined appeals. Only the first was reported (as London Borough of Bromley v Morritt (No. 1)  E.H.L.R. 24), it is the second (case number CCRTF 1998/0956/2) which relates to adverse possession of a highway.
The judge 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.
One wonders why not. For example it is quite possible for the land subject to the highway to be held by a private individual who may then exercise rights (such as grazing of livestock) over the highway provided that exercise of those rights does not interfere with the right of the public to pass over the highway.
Possession, for the purposes of adverse possession, need only be possession that is consistent with the nature of the land in question. Provided I exercise the rights of the land owner, minimal though they might be, I should be able to establish possession of land subject to a public right of way.
Morritt is an unfortunate case because the Claimant was a litigant in person. There does not appear to have been any proper argument or consideration of the adverse possession claim, so that Mummery LJ’s conclusion must be treated with caution. Furthermore it is, at least technically, made by the way and not properly authoritative.
Recognising that Morritt was not binding authority, the trial judge relied on the case of Harvey that I referred to above. He said:
Joyce J concluded that this was an encroachment and said in relation to it:
“The possession of a squatter on the highway since 1886 cannot bar the public right.”
In other words, Joyce J held that adverse possession could not be asserted if (as is alleged here) the effect would be to exclude the public from part of a highway, and that was so even if the part concerned had not been used, as such, for a number of years.
Nonsense. In Harvey the Claimant had applied for a declaration that the land in question (part of the roadside waste) was not a part of the highway. Adverse possession was never claimed. In fact it was quite possible that the land formed a part of the Claimant’s estate. Joyce J did not think that had been proved to his satisfaction, but he did not determine the question because the parties wished him to consider the right of the public over the roadside waste.
Not content with misconstruing Harvey the judge went on to consider what he called the “illegality” point. The Defendant and the Council had argued that there was a principle of public policy which prevents a party acquiring a legal right by illegal activity. Mr Smith’s taking possession of a part of the highway with his caravan etc would amount to an obstruction of part of the highway contrart to s.137 of the Highways Act 1980. Public policy would intervene to prevent him from claiming adverse possession on that ground.
By an extremely convoluted route, the judge found support for the existence of such a proposition in the House of Lords decision in Bakewell Management Limited v Brandwood  2 AC 519. That case was about rights acquired by prescription not by adverse possession. They are quite different legal principles. As Edward Burn my old land lecturer used to say: prescription is based on use as of right, but adverse possession is use as of wrong.
The decision in Bakewell concerned whether the Defendants could acquire a prescriptive right of way over a common for their vehicles. They had been driving over the common to their properties for at least 20 years but that action was criminal in nature because it was done without the consent of the owner of the commons. The Lords found that, even so, they could acquire a prescriptive right under the doctrine of lost modern grant which presumed that use as of right for 20 years implied the existence of a grant from the land owner (now unfortunately lost). If they owners of the common had granted a right to the Defendants their use would not have been criminal.
At first sight Bakewell looks rather unpromising as a case to found a general principle of public policy that a party cannot acquire a legal right by illegal activity because that is exactly what the Defendants were found to have done. Nevertheless the trial judge appeared to be able to so find on the basis that Bakewell was an exception to a general principle. In Mr Smith’s case the local authority could not have granted him a right to obstruct the highway and so he fell outside the Bakewell exception and could not succeed. Of course that is not how the decision in Bakewell operated and in any event referred to prescription not adverse possession which is based on wrong not right.
Worse was to come. The judge relied on Glamorgan County Council v Carter  1 WLR 1 (which has absolutely no relevance whatsoever but that should be no surprise to readers by now) on the basis that it was approved by Lord Scott in Bakewell. He said (my apologies for the length):
In his opinion in B akewell , Lord Scott approved Glamorgan County Council v Carter  1 WLR 1 in these terms:
“ Glamorgan County Council v Carter  1 WLR 1 was the next case cited by Dillon LJ. The question at issue arose out of the provisions of the Town and Country Planning Act 1947 . The question was whether planning permission was required for the use of certain land as a site for caravans. Section 12 (5) ( of the Act said that planning permission was not needed in order to authorise the use of unoccupied land for the purposes for which it had been last used. The last use that had been made of the land was as a site for caravans but at the time this use was taking place it had been an illegal use. This was a context in which Salmon LJ, at page five, made the statement cited by Dillon LJ, namely: “It seems to me plain on principle that Mrs James could not acquire any legal right by the illegal use to which she was putting the land.” Salmon LJ made this statement in a planning context. Mrs James could not establish legal rights of use for the purposes of 1947 Act by relying on use that was unlawful under the 1947 Act. The proposition was plainly correct. ”
In my judgment it is the principle stated in the Glamorgan County Council case and approved by Lord Scott in Bakewell (rather than the exception to it by which Bakewell was actually resolved) that applies in a case of this sort.
It is regrettable that the judge ended his citation of Lord Scott at that point for he continues:
But the case had nothing to do with prescriptive use. It was, in my opinion, an unconvincing use of authority to take Salmon LJ’s statement out of context and treat the principle he expressed as applicable to prescriptive use.
In my view the judge’s use of the authority was equally unconvincing.
I do not think I need to go on. In my view the judge was either badly mislead by counsel or did not properly understand the authorities that were put before him. That is very unfortunate as he appears to have stated a general principle which does not, on closer examination, stand up.
Readers have fellow blogger “J” to thank for this lengthy diatribe. I am about to blog about an elegant case involving the acquisition of tidal foreshore in the Thames by adverse possession but, before I was permitted to do so, I was told I had to report this case.