Last year we reported the decision R (Smith) v Land Registry  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  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  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  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.