In Port of London Authority v Ashmore [2009] EWHC 954 (Ch) the Defendant had, since 1983, tethered his sailing barge to Albion Wharf on the Thames close by Battersea Bridge. The Authority wished to register title to the bed of the river Thames but Mr Ashmore opposed this, claiming that, since his barge rested on the river bed twice each day (with the falling of the tide) he had acquired title to it by adverse possession.
The Authority raised two objections to Mr Ashmore’s claim.
First, it was argued that Mr Ashmore did not have and had not had exclusive possession of the river bed because he had “no continuous, unbroken possession of the bed.” His barge was of course rising and falling. Not only did it sit on the river bed only at low tide, it also failed to occupy any defined area of space (for what one might call a “floating freehold”).
The judge disagreed. He relied on a useful encapsulation of the law by Slade J in Powell v. McFarlane (1977) 38 P & CR 452, in particular the ruling that what constitutes a sufficient degree of possession depends on “the nature of the land and the manner in which land of that nature is commonly used or enjoyed”.
The famous case of Red House Farms (Thorndon) Ltd v. Catchpole [1977] 2 EGLR 125 makes the point. The land in question was marshland. Adverse possession was successfully claimed on the basis of using the land for shooting. Clearly in that case there was no need for continuous occupation of any kind.
The House of Lords approved Powell in J A Pye (Oxford) Ltd v. Graham[2003] 1 AC 419 in which Lord Hutton approached the question by asking “what an occupying owner of the disputed land might have done over and above what was done”. The judge found that a useful test and thought that, short of building a structure on the river bed, Mr Ashmore could have done nothing more. Given that a squatter does not have to build on land to demonstrate adverse possession he felt that Mr Ashmore had done enough.
The Authority’s second objection was that Mr Ashmore had not demonstrated sufficient intention to possess the river bed, no animus possidendi as we used to say. The Authority’s argument was that what Mr Ashmore was doing could equally well have been compatible with the exercise of some other right that was less than possession, for example:
- an exercise of the public right of navigation
- an exercise of riparian rights by a riparian owner
- a licence, which might or might not be coupled with a lease of the moorings themselves
- an easement for the benefit of the land on the shore or bank
(for those who aren’t familiar with this slightly arcane area of law, you can translate “riparian” by “river bank”).
Well that much is true if the test were what a casual passer-by might think, but the judge found that the test was what the
occupier would say to someone with the knowledge of the paper owner “if he took the trouble to be aware of what was happening to his land”
On which basis the judge found that Mr Ashmore had the requisite intention to possess.
What is interesting to me is that counsel for the Authority conceded that the existence of a public right of navigation did not prevent Mr Ashmore’s asquiring the river bed by adverse possession. As the judge commented, Mr Ashmore’s victory might be pyrrhic because it would neither give him a right to obstruct the public right of navigation nor any right of access to the river bank.
That is, in my view, exactly right and contrasts with the wholly mistaken view taken by the court in R (Smith) v Land Registry (Peterborough) [2009] EWHC 328 (Admin).