Adverse possession of the river bed II

Port of London Authority v Ashmore [2010] EWCA Civ 30 is a really odd decision by the Court of Appeal to the extent I had to read it through carefully twice to be sure I understood its effect. I am still not sure that I do.

You may remember that we reported on Mr Ashmore’s attempts to resists the Port of London Authority’s attempts to register their ownership of the bed of the River Thames on the ground that he had acquired title to it (well a part of it) by adverse possession where the judge at first instance found that he had established factual possession and an intention to possess.

Unfortunately that decision was taken by the judge the hearing of a preliminary issue. The order for a trial of a preliminary issue was made by consent. The issue being:

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.

An agreed statement of assumed facts for the preliminary issue only was agreed and submitted to the judge.

Here things start to get odd. At the trial of the preliminary issue the Port of London conceded that title to the bed of a tidal river can (in principle at least) be acquired by adverse possession. That would seem, almost, to be a concession that the preliminary issue should be found in Mr Ashmore’s favour (indeed it would cease to be an issue). While it might be possible to find some very narrow difference between the preliminary issue as stated and the authority’s concession, they do not appear to have taken that position. As far as I can tell (and I am happy to be corrected) the authority agreed with the proposition to be tried, so the preliminary hearing would seem to be pointless.

Not to be deterred by this, the parties argued whether Mr Ashmore had in fact (based on the agreed assumed facts) established both factual possession and an intention to possess. The points taken are dealt with in my earlier post. Having found for Mr Ashmore on this issue, the judge was bound to answer the preliminary question in the affirmative. If, on the assumed facts, Mr Ashmore had established adverse possession, then it was clearly possible for someone to do that in principle because the judge found that someone had. The judge’s order included the following statement:

1. 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 the river bed or the foreshore for the footprint of that vessel where:

(a) the title to the river bed or the foreshore has not been registered; and

(b) the vessel rests on the bed or the foreshore at low tide.

This isn’t quite the same wording as that used in the original order since it omits the phrase “or other area of tidal water”. But, strictly speaking, the judge’s narrower statement implies the more general one: if A is possible then surely one of A or B is possible.

The Port of London Authority decided to appeal this decision. Why they should do so given that they appear to accept the point in issue I do not know. They were given permission. At the hearing, counsel for the Port of London Authority explained that the authority conceded that there could be circumstances in which the owner of a vessel moored on a tidal river might acquire title by adverse possession to a part of the river bed or foreshore. What he wanted the Court of Appeal to do was to indicate in its judgment what circumstances those might be.

He suggested the following:

(1) An owner of a vessel that is moored on or over the bed of tidal waters will only be capable of being in adverse possession of the bed by reason only of that mooring if he can prove that it would not have been possible for the vessel to float off at Mean High Water if released from its moorings.

(2) An owner of a vessel that is moored on or over the bed of non-tidal waters will only be capable of being in adverse possession of the bed by reason only of that mooring if he can prove that it would not have been possible for the vessel to float off if released from its moorings where the waters were at their average depth during the preceding calendar year.

(3) The principles set out above do not prevent the owner of the vessel from showing by other acts that he was in possession of the land upon or over which the vessel was moored or which included such land.

Unsurprisingly the court refused to make a judgment in those terms. First because it did not think it appropriate to set down an arbitrary test for the acquiring of adverse possession to the river bed and second because principles (1) and (2) could not be applied to the case before it since the agreed statement of assumed facts did not give sufficient information to decide whether they did or did not apply.

For myself I would have refused the appeal on the basis that the order made by the judge on a preliminary issue had been conceded by the appellant. End of story.

Perhaps because of the peculiar nature of the case before it, the court decided it needed to do some peculiar reasoning as well.  The court discerned in the trial judge’s decision a qualification to the declaration he made, namely that it was not intended by the judge to be made in general terms, but was confined to the agreed statement of assumed facts. The court appears to have thought it should not have been made in the general terms it was.

With the greatest respect to the Court of Appeal, who must have struggled with the peculiar way the case was presented before them, that must be a nonsense. If on specific facts a judge finds that X is the case, then it must be true as a completely general proposition that it is possible for X to be the case. The judge’s decision cannot be faulted for its generality which follows inevitably for his finding on the facts before him and the question he was asked to resolve.

The court decided that there was no useful purpose in deciding whether the judge’s decision on the facts before him was right. The court also felt that it could not, in allowing the appeal, qualify the order that the judge made by confining it to the agreed statement of assumed facts. There was nothing for it but to set aside that part (paragraph 1) of the judge’s order. Unfortunately there is no report of the rest of the order, so it is impossible for us to see what state the case is left in. Very nearly back to square one by the sounds of it.

Can anyone throw any light on how this muddle came about, or why the Court of Appeal felt compelled to make the very odd decision that they did?

Posted in Adverse possession, Uncategorized and tagged , , .

17 Comments

  1. This is, perhaps, a little impish, but isn’t that what you get when an academic (or a former academic) acts up as counsel. In this case, the former academic is Charles Harpum, editor of Megarry & Wade and former Law Commissioner …

  2. I think what the Court of Appeal was driving at was that the case should not establish a precedent wider than its own facts. It refused to uphold the declaration that in principle someone could establish title to part of a river bed by anchoring his vessel to the river bed, in mid stream, as that was not what happened in this case.
    The case was concerned only with a vessel moored at the river bank. Only the preliminary issue has been decided, and the Court of Appeal did not decide whether on the facts, the respondent should win. The Port of London Authority will need to argue more strongly that navigeable waterways and associated wharves and quays are for the use of the maritime and general public and that it is established by Act of Parliament and has a statutory duty to ensure the waterway and quays remain open for public use. There must have been an implied licence whereby the respondent was allowed to continue to occupy the quayside for so long, no doubt because the particular vessel was thought to be picturesque or of historical interest. If the respondent is allowed to acquire a valuable piece of Central London real estate in this way it will be most unfair to the public. An interesting question is whether the acquisiition of title to part of the river bed in any way affects the common law right of navigation over that river bed. Surely the PLA could get an injunction requiring removal of the vessel on the grounds that it is an obstruction to shipping, irrespective of who owns the river bed.
    It is like someone parking his old car on the road and just because it is not towed away, claiming that the road now belongs to him. This is different from the case where someone builds an extension encroaching on the highway, in which case title by adverse possession has been held to affect the public right of way over that part of the highway.

  3. I’m sure Mr Ashmore doesn’t think it’s a farce.
    And with regard to Mr Hall’s points, I haven’t managed to find those elaborated in the leading case of Pye v Graham – perhaps he could point us to the relevant paragraphs?

  4. DT
    I would refer you to paragraph 35 of the report of the House of Lords 2002 decision in Pye v Graham, about the nature of adverse possession. It is about going into possession of land without the consent of the owner. Thames Barges do not need the permission of the Port of London Authority to exist on the Thames. That is where they belong. There is no law requiring owners of Thames sailing barges to sail them regularly or at all, in order to retain their right to allow their vessels to continue to exist on the river. The PLA made the mistake of claiming that the owner of the barge had been trespassing on its land. The PLA was not the riparian owner and the barge owner did not need the PLA’s permission to moor up to the Albion Wharf. There were no mooring fees to pay. This was unlike the case of Pye v Graham, where a grazing licence fee had previously been charged, so there was no implied licence. It was not breaching any of the Port of London regulations and was not actually causing any real obstruction to anybody. The use of the river is free – it is a public space for everybody to enjoy. So the barge owner was not doing anything wrong, and he should not be held to have acquired squatters’ rights, which can only be acquired by trespassers. The public right of navigation does not necessarily involve sailing up and down. A Thames barge has the right to exist on the Thames.

  5. Michael, I think the point was that you are arguing a completely different case to that actually put before the court of first instance and the Court of Appeal by both parties. So, however valid your points are, and I have my doubts about that, you are not actually talking about this case.

    When you suggest things like ‘there must have been an implied licence, undoubtedly because the vessel was thought to be of picturesque or historic interest’, you are a) inventing things and b) relying on something expressly denied by the Port Authority. From the first instance judgment:

    “Mr. Ashmore had no permission from the Authority to do what he did: the Authority claims that he has been a trespasser on their property since 1983. Nor did he have any express permission to use the mooring rings, though that is not a concern of the Authority because the Authority is not the riparian owner [of the river bank].”

    I’m afraid that everything else you put forward falls away because of this – Mr Ashmore was a trespasser and the PLA was the title holder (pursuant to the Thames Conservancy Act 1857) – and most certainly because of the Port Authority’s admission that it is possible, in certain circumstances, to acquire title by adverse possession of the foreshore and river bed by reason of mooring.

    And it appears you are probably wrong that a public right of navigation includes a right to moor up for any length of time beyond ‘temporarily in the course of navigation’ – see Moore v British Waterways Board [2010] EWCA Civ 42, which contains an unappealed preliminary finding to that effect.

    As for your suggestion the the PLA should get an injunction on the basis that the boat is a hazard to navigation, they would have a hard time arguing for that after 26 years. I would also presume that Mr Ashmore would take title – if indeed he does – subject to the common law public right of navigation.

  6. I am no longer suggesting that the PLA should get an injunction. I have looked at the scene using Multimap, and can see that the boat is not causing a real obstruction.
    It appears the only reason why these proceedings were taken was that Mr Ashmore objected to the PLA’s application to register its title. By claiming he was a trespasser, the PLA has shot itself in the foot. The judgment does not include information about the dealings between Mr Ashmore and the PLA, which he spoke about in court but not from the witness box. If he was a trespasser, his trespassing was tolerated for many years. There is no reason to think the riparian owner regarded him as a trespasser.
    It is not explained why he was given notice of the Land Registry application, whether the LR took the initiative in this, or the PLA.
    It is certainly true that Thames sailing barges are rare and of historical interest, and that is why, if you look at the Wandsworth Council website, you will see there is planning permission for an exhibition of Thames barges. I have not invented this.

    • Michael, you invented an implied licence ‘undoubtedly’ for reasons of historic interest. You insisted that there had to be one and there wasn’t. Would I be right in presuming that you are not a lawyer, by the way?

      The owner – the PLA – stated that it regarded him as a trespasser. That is a pretty clear reason to think that he was regarded as a trespasser. Whether the PLA did anything about it or not doesn’t change that position.

      How Mr Ashmore got wind of the intention to register title by the PLA is neither here nor there. Any relevant dealings between the parties will have to be raised in evidence at trial. I don’t think the PLA had much choice except to say he was a trespasser. There was no licence and he could not be there for 26 years under public navigation rights.

      All in all, I think your view that this is properly not an adverse possession case doesn’t really go anywhere, I’m afraid. This is not to say that Mr Ashmore will necessarily succeed at trial, of course.

  7. I think what Rowena means is that having had a high court and court of appeal hearing, the case doesn’t appear to have advanced very much. In particular the result of the court of appeal hearing was that one part of the judge’s order (possibly the only useful part) was quashed without being found to be wrong and without being replaced by anything else. So not very satisfactory.

    • Didn’t take too long. Really. And I don’t want to give the impression that I’m up on the law pertaining to public navigation rights. I just happened to read Moore v British Waterways as it came up, via judicial synchronicity, in the Bailii feed.

      And that is definitely what Rowena meant…

  8. Alas, I get no credit :-(

    I had thought of blogging about Moore but thought it was probably unedifying because it is another case where essentially nothing was decided on appeal, all that was achieved was that a ruling of the judge on a preliminary issue was left to trial. Moral: sometimes it doesn’t save time to take preliminary issues.

    • Francis – the credit for the post is all yours, of course. I rather presumed that DT was referring to the spat-let with Michael Hall. If not, then all credit is duly yours.

  9. Yes I confirm that interpretation. Anyway, Francis, you are right about Moore. The only interesting thing about it is the reference to the right to moor (or not)- as NL picked out.

  10. The riparian owner granted an implied licence to moor, by placing mooring rings on the wall, and no notice objecting to anyone mooring. My front path has no locked gate on it, which means there is an implied licence for the postman and any other visitors to walk along it. The PLA has a website through which mooring places are made known, and these include this wharf, though it is not one of their “safeguarded” wharves.
    As far as I know, Mr Ashmore had no reason to believe the PLA objected to him remaining moored there. You do not know that the PLA regarded him as a trespasser throughout the time he was there. Presumably at some point, they asked him to leave, and when he did not, thereafter he was regarded as a trespasser.
    By the way, I am a practising solicitor, and live in Orpington, and object to my professional reputation being impugned by people who hide behind a cloak of anonymity. Such offensive remarks should be taken off the website.

    • Michael, I’m happy to be corrected on my presumption. I couldn’t find a Michael Hall on the Law Society site, or one who was a barrister, who appeared to fit the bill, but as has been pointed out to me, not every practising solicitor appears on the Law Society site. No slur was intended and apologies if offence was taken. I have no wish to upset anyone who lives in Orpington.

      But you seem to be doing the same thing again, you are arguing on the basis of ‘what presumably happened’ rather than than what either party pleaded. PLA stated that Mr Ashmore did not have their permission to occupy that part of the river and was a trespasser throughout the time that he was/is there. There is nothing in either judgment about evidence of dates being given to leave etc.. While there may well be more to come out in evidence at the trial, speculation about what ‘presumably’ happened doesn’t get us anywhere, least of all support your initial argument that this couldn’t/shouldn’t be an adverse possession case.

      The mooring is, I think, a bit of a red herring. Mr Ashmore is not claiming adverse possession of the quayside and the owner of the quayside cannot give permission for the occupation of the PLA’s land.

  11. Having accidentally come across these comments, I’d quite like to add to the references to Moore v BWB. As the Moore in question, I believe that I am in a position to contribute.

    The contributor who said that the Appeal was yet another case where essentially nothing was decided is perfectly correct of course. I believe that the appeal judges SHOULD have made a positive decision, because all I asked on a positive note [beyond having the relevant issue quashed] was for the relevant findings of the court below to be incorporated into the Order – but they felt they had insufficient material before them to decide whether those findings were correct.

    Leaving that aside [and it is coming to trial soon anyway], the unappealed moorings issue should be clarified for those of you who find the topic of interest. The case adds nothing to previous case law. The issue was one I objected to being listed, as it was of nil application to my case, but I was over-ruled by the Master. The issue as worded was not contested, which is why there was no appeal.

    What so many judges fail to appreciate in deliberating on a case like this as presented by BW, is the clear distinction to be drawn between the act of mooring, and the construction of mooring apparatus. The vast bulk of case law on public rights of navigation [PRN] vis-à-vis moorings has to do with disputed rights to install permanent mooring apparatus in the bed of the navigable sea or river; it has nothing to do, for example, with the act of mooring to a riverbank or wall [as in Ashmore and myself], or even, arguably, with mooring to some permanently installed apparatus.

    The case relied upon by BW in this instance was Fairlie Yacht Slip Ltd, in which it was found that a PRN did not contain any ancillary right to lay permanent moorings in the riverbed. That was the wholly irrelevant [seeing that I was moored to the riverbank] context in which the judge agreed that the PRN included no right to moor ‘other than temporarily’.

    The phrasing is meaningless in any context outwith the fixture of permanent riverbed apparatus, as the meaning of ‘temporary’ is as flexible as the length of a piece of string and a boat itself, being by definition a moveable chattel, can never be considered other than temporary in any event [as per Chelsea Yacht & Boat v Pope].

    In presenting the issue to the court, BW noted that both of us were agreed as to the issue as worded, and that the only difference between us was the length of time that might be considered reasonable to qualify as temporary. Their suggestion was 14 days. The suggestion is peculiar [although I recognise the genesis and purpose of the declaration they were seeking in that respect].

    What entirely escaped the judge [as did most things] was the fact that in the relevant context of the preliminary issue as it affected the case before him, my position had been that the PRN gives no right at all, even momentarily, to moor to private riparian property. It does not even give the right to allow a passenger to embark or disembark onto that property without the boat making fast to the bank. To put the matter another way, the PRN gives no right to moor even temporarily, to private riparian property.

    In the event, the judge forgot to address the difference between us at all; he simply gave the nod to the issue as had been agreed between us. So the case is not even of interest to those considering someone in Ashmore’s position. It was no business of the PLA whether Ashmore had permission of the relevant landowner; permission to moor to the bank was in his gift not theirs.

    So leaving aside the irrelevant issue of permanent mooring apparatus as being agreed, and leaving aside the inapplicable issue of mooring to the riverbank as being decided by all previous case law and no finding as to that being made in this case, Moore v BWB still leaves up in the air the question of how long a boat may remain temporarily moored [to whatever] as an ancillary right of the PRN – and I believe it is right that it should; I believe that the answer will be different in and special to, each individual circumstance.

    The only case law of which I am aware that addresses that particular issue [of how long a vessel may reasonably moor pursuant to the PRN] is the very rare nineteenth century one that decreed that the master of a vessel in such circumstances “may moor for so long as he please” providing only that in so doing he does not disturb the PRN of others, nor unreasonably disturb any private rights affected by the exercise of his public right. One prior case on the same issue was referred to in the report of the case.

    It is of interest that in the latter case the master was found guilty of abusing the rights of an adjacent wharf owner, because he obstructed access to the wharf in circumstances where he might just as easily have moved his boat a short way up or down stream without discommoding himself or others, instead of choosing to moor just outside the private wharf and obstinately insist upon his right to moor wherever he chose for as long as he chose in exercising the PRN. The prior case quoted had reached a different result, but each resolved the question on the identical basis – that no fixed time could be deemed appropriate, the finding as to reasonableness depended upon the individual circumstance of each case.

    Those being the only relevant case law examples that I have ever been able to find, it suggests that the contributor is perhaps inadvertently misleading in suggesting that another was ‘probably wrong that a PRN includes a right to moor up for any length of time . . .” – “beyond temporarily” being in virtually all cases a rather meaningless definition.

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