England and Wales Court of Appeal (Civil Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
HC 08C02172

		Royal Courts of Justice Strand, London, WC2A 2LL
		4th February 2010

Sir John Chadwick:

1. This is an appeal from an order made on 8 May 2009 by Mr Stephen Smith QC, sitting as a Deputy Judge of the High Court in the Chancery Division, on the trial of a preliminary issue in proceedings brought by The Port of London Authority ("the Authority"), against Mr Rupert Gerald Ashmore. Mr Ashmore is the owner of the sailing barge "Atrato": a vessel which is – and has been for the past twenty five years or more – moored at Albion Wharf, Battersea. The Authority claims as owner of the bed and foreshore of the River Thames adjacent to Albion Wharf. The river is tidal at that point and the vessel takes the ground at low water.
2. The Authority has sought to register at HM Land Registry (under Title number TGL 286947) its title to the bed and foreshore of the river immediately downstream of Battersea Bridge. The land to be registered is bounded, to the north, by Cheyne Walk and, to the south, by Albion Riverside and Thames Walk. Albion Wharf (formerly known as Anglo American Wharf) forms part of Albion Riverside. The Authority's application for first registration was met by a written objection submitted by Mr Ashmore. He claims to have acquired title by adverse possession to (at the least) that part of the bed and foreshore of the river on which the vessel rests at low water. The purpose of these proceedings – as appears from paragraph 1 of the particulars of claim – is "to determine whether and to what extent the Defendant has a right to moor the sailing barge 'Atrato' in the River Thames at or off Albion Riverside . . .".

The preliminary issue

3. The proceedings were commenced by the issue of a claim form on 31 July 2008. The relief sought included: (1) a declaration that the Defendant had no estate, right or title to moor or otherwise affix Atrato or any other vessel at or off Albion Riverside; (2) possession of that part of the riverbed or foreshore of the River Thames, the space above the riverbed or foreshore through which water flows and the air column above that - "which is presently occupied by 'Atrato'"; (3) an order requiring the defendant to remove Atrato from its moorings within 28 days; and (4) an injunction to restrain the defendant from trespassing upon the Claimant's land by mooring or otherwise affixing Atrato without the Claimant's licence.
4. On 1 September 2008 - before serving a defence – Mr Ashmore wrote to the Authority. He expressed the view that "this case will turn on whether it is possible to acquire land by adverse possession of the foreshore and/or the sea or river bed by reason of mooring"; and he suggested that, "with a view to limiting legal costs", that issue be tried as a preliminary point of law. That suggestion seems to have found favour with the Authority. On 3 November 2008 an order was made by consent for the trial as a preliminary issue:

"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."

The order went on to direct that the Authority prepare and serve on Mr Ashmore a statement of assumed facts "for the purpose only of the trial of the preliminary issue".

The statement of assumed facts

5. The trial of the preliminary issue came before the judge on 10 February 2009. The parties had agreed a statement of assumed facts; which the judge subsequently set out at paragraph [8] of his judgment, [2009] EWHC 954 (Ch):

"1. The Claimant is a statutory body which, under the terms of the Port of London Act 1968 ('the 1968 Act'), is charged with responsibility for the conservancy of that part of the River Thames that is tidal, as defined more precisely by section 2(1) and Schedule 1 of the 1968 Act.

2. Except where the ownership of the fee simple of the foreshore and bed of the tidal part of the River Thames is vested in some third person, it is vested in the Claimant. It was first vested in the Claimant's predecessor in title, the Thames Conservators, pursuant to the Thames Conservancy Act 1857. The Claimant succeeded to the rights and property of the Conservators pursuant to the Port of London Act 1908.

3. The part of the River Thames which is tidal is necessarily subject to the common law public right of navigation.

4. The Atrato, which is owned by the Defendant, is a sailing barge, believed to have been built in 1898 and rebuilt in 1945. It is approximately 84.4 feet long, 18.6 at the beam and has an internal depth of 6 feet. It is a vessel of some 63 tons or thereabouts.

5. Since at least June 1983, Atrato has been moored in the River Thames at or off Albion Riverside, Hester Road, Battersea, London SW11, adjacent to the part of Albion Riverside that was formerly Albion Wharf. For the purposes of the Preliminary Issue it is assumed that Atrato has been moored in the same place for an unbroken period in excess of 12 years. The vessel's position at its mooring (and therefore its footprint) will not have remained static but will necessarily have moved by reason of wind and tide.

6. The part of the River Thames where Atrato is moored is tidal and is within the limits set out in section 2(1) and Schedule 1 of the 1968 Act. Accordingly, unless the Defendant has acquired title to the fee simple of the bed of the River Thames by adverse possession, that title is vested in the Claimant. The title to this part of the bed and foreshore of the River Thames has not yet been registered at the Land Registry.

7. The depth of the River Thames immediately adjacent to the place where Atrato is moored is shown on the chart annexed to the Particulars of Claim and it indicates the depth of the water to be between 3 and 3.2 metres above the chart datum. The chart datum in this part of the River Thames is 2.29 metres below Ordnance Datum (Newlyn) which is approximately the level of the Lowest Astronomical Tide, which is the lowest low water that can be expected in normal circumstances. Accordingly, although the place where Atrato is moored is always under water at high tide, and there is clearance under that vessel at that and other times, it rests on the exposed foreshore at low tide."

The principles of law

6. The judge recorded, at paragraphs [10] and [11] of his judgment, what he described as "two important concessions of law" made by counsel for the Authority: (i) that, in principle, title to the bed of a tidal river can be acquired by adverse possession; and (ii) that the fact that the River Thames where Atrato is moored is subject to the public right of navigation would not, of itself, prevent title to the bed or foreshore being acquired by adverse possession. He noted that authority for the first of those propositions could be found in the decision of Mr Justice Lindsay in Roberts v Swangrove Estates Ltd [2007] EWHC 513 (Ch), [2007] 2 P&CR 17.
7. It is important to keep in mind that the Authority's title to the bed and foreshore of the River Thames off Albion Riverside has not been registered. The judge reminded himself of the principles of law – to be derived from the speeches of Lord Hoffmann and Lord Hutton in J A Pye (Oxford) Ltd and another v Graham and another [2003] UKHL 30, [2003] 1 AC 419; from the judgment of Mr Justice Slade in Powell v McFarlane and another (1977) 38 P&CR 452; and from the judgment of Lord Justice Slade (as he had become) in Buckinghamshire County Council v Moran [1990] Ch 623 – which were applicable to the acquisition of title to unregistered land by adverse possession. In particular, he identified the two elements which – as Lord Browne-Wilkinson had pointed out in Pye (ibid, [40], 435F-G) – a person asserting a claim to title by adverse possession will need to establish:

". . . (1) a sufficient degree of physical custody and control ('factual possession'); (2) an intention to exercise such custody and control on one's own behalf and for one's own benefit ('intention to possess'). What is crucial is to understand that, without the requisite intention, in law there can be no possession."

The judge's analysis

8. The judge addressed, first, the question whether Mr Ashmore had had factual possession of the relevant part of the river bed. He accepted (at paragraph [20] of his judgment) that "whilst Atrato rested on the bed every day at low tide, at other times there was clearance under it": he accepted that the vessel did not occupy "a defined portion of space in the water/air column above the bed because [it] went up and down with the tide"; he accepted that the lateral position of the vessel "also changed somewhat with the wind and the tide", so that "when it came to rest on the river bed it would not always occupy exactly the same 'footprint'". But he rejected (at paragraph [22]) the submission that "for a squatter to be able to establish sufficient possession for a claim of adverse possession, he must prove some physical contact with the relevant land at all times". He referred to the observation of Mr Justice Slade in Powell v McFarlane (ibid, 470-471) that "The question of what acts constitute a sufficient degree of exclusive possession depends in particular on the nature of the land and the manner in which land of that nature is commonly used or enjoyed". And he went on to say this:

"[22] . . . In my judgment, when that land is part of the bed of a tidal river which is flooded twice a day, the fact that the squatter's boat rises and falls with the flowing and ebbing of the tide does not mean that the squatter has relinquished physical possession of the land upon which the boat rests at low tide."

9. After considering the decision of this Court in Red House Farms (Thorndon) Ltd v Catchpole [1977] 2 EGLR 125 and that of Mr Justice Lindsay in Roberts v Swangrove Estates (supra), the judge concluded:

"[30]. In this case, Mr. Ashmore has without doubt enjoyed unchallenged control and possession of the relevant part of the bed of the Thames. That control and possession was much greater than spasmodic: it was for all practical purposes complete.

[31]. It follows that in my judgment Mr. Ashmore has established a sufficient degree of possession of the relevant part of the bed of the River Thames to claim title to it. . . . I therefore reach the same conclusion as A T Lawrence J expressed in the Denaby and Cadeby Main Collieries case [Denaby and Cadeby Main Collieries v Anson [1911] I KB 171, 176]: that in principle it is possible to acquire title to part of the bed of a tidal river or to the foreshore through the occupation of a vessel which, at least for some of the time, floats above that part and does not always rest on it."

10. The judge then turned to the second question: had Mr Ashmore demonstrated a sufficient intention to possess the relevant part of the river bed? He reminded himself of Lord Hutton's observation in Pye (ibid, [76], 447E) that, where the evidence establishes that the person claiming title by adverse possession has occupied the land and made full use of it in the way in which an owner would, that use will normally make clear that he had the necessary intention to possess. He rejected the submission that a sufficient intention to possess had not been demonstrated in the present case because the mooring of a vessel was an equivocal act; capable of being attributable to an exercise of the public right of navigation, to an exercise of riparian rights by a riparian owner, to a licence (which might or might not be coupled with a lease of the moorings themselves) or to an easement for the benefit of the land on the shore or bank. Although he accepted that "a disinterested third party coming across for the first time a boat moored in a tidal river would not automatically assume that the owner of the boat was a trespasser intent on excluding the world at large from possession", that (he said) was not the correct test. The test was "what the possession by this 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". He pointed out that:

"[37] Equipped with that knowledge in this case one can readily discount each of the alternatives suggested by Mr. Harpum. Mr. Ashmore was not exercising a public right of navigation: if one ignores as de minimis the period when Atrato was in dry dock (which if it were necessary to do so, I would), for 26 years Mr. Ashmore has not navigated anywhere. Mr. Ashmore was not the riparian owner nor the owner of any other land in the vicinity for which he needed to enjoy an easement, and nobody has suggested that the Authority at any time believed that he might be. And Mr. Ashmore never had a licence or a lease relating to the river bed, as the Authority would at all times have known."

Accordingly, he found that Mr. Ashmore had established that he did have a sufficient intention to possess the relevant part of the river bed throughout the material time.

11. The judge went on to say this:

"[39] For all these reasons my answer to the question posed as a preliminary issue in the Order of Master Teverson, is yes, 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 a part of the river bed where the title to the river bed has not yet been registered and the vessel rests on the bed at low tide. Indeed, since I have heard full argument on the point, I would go further and find that in this case Mr. Ashmore has established the necessary fact of possession and intention to possess, to have acquired title to the relevant part of the bed of the Thames adjacent to Albion Riverside."

12. The judge explained that "the relevant part of the bed of the Thames" – to which he had referred in paragraph [39] and, earlier, in paragraphs [30] and [31] – could extend beyond the "footprint" of the vessel. He said this:

"[40] As regards the extent of the bed of the river to which Mr. Ashmore has acquired title, the preliminary issue speaks only of the 'footprint' of the vessel. It is in my judgment right that the total area between the extreme points where Atrato has had contact with the river bed over the years (including through her anchor) will be included in the area to which Mr. Ashmore has acquired title (together with the space above the bed through which water flows and the air column to a reasonable height above that).

[41] The question of whether any further part of the river bed beneath the outline of Atrato's deck (which Mr. Harpum referred to as 'the envelope') could also be said to have been in Mr. Ashmore's possession is not raised as such by the preliminary issue, but in principle I would have thought that it should be included, even though Atrato only rested over that part of the river bed and not directly upon it (especially as Mr. Harpum suggested in his skeleton argument that the extent of Atrato's protrusion over the river bed represents a trespass). Indeed, it seems to me to be at least very strongly arguable that much the same could be said for that part of the river bed between the outline (or envelope) and the bank of the river: the position of Atrato and the presence of its mooring ropes will have precluded anyone else from occupying those relatively few square feet of the bed."

The order of 8 May 2009

13. Notwithstanding the definitive view which he had expressed in paragraph [39] of his judgment, the judge answered the preliminary issue broadly in the terms in which it had been posed by the order of 3 November 2008. But, he confined his answer to the position in a tidal river: he did not answer the question (as posed) in relation to other areas of tidal water. His order of 8 May 2009 contains a declaration in these terms:

"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."

14. The declaration made in the order of 8 May 2009 is not linked, in terms, to the assumed facts set out in the agreed statement. Nevertheless, it is clear that the judge intended that his decision should be confined to those assumed facts; and that he did not intend that the declaration which he was persuaded to make should have any wider effect. There are, at least, three passages in his judgment which point to that conclusion:

(1) At paragraph [22] – in rejecting "the notion inherent in Mr Harpum's submissions that for a squatter to be able to establish sufficient possession for a claim to adverse possession, he must prove some physical contact with the relevant land at all times" – the judge said this:

". . . True it may be, as Mr. Harpum submitted, that at high tide a frogman could have gained access to the bed of the river underneath Atrato, but even if that were not to be regarded as a legitimate use of the public right of navigation, the agreed statement of assumed facts contains no reference to frogmen having swum underneath Atrato (whether employed by the Authority or otherwise), and the point is therefore in this case an academic one." [emphasis added]

(2) At paragraph [33] – after referring to matters of history advanced by Mr Ashmore in the course of his oral submissions – the judge observed that:

". . . none of this information forms part of the assumed statement of facts, nor was it said in the witness box and therefore subject to cross examination. I shall, therefore, ignore it for the purposes of my decision." [emphasis added]

(3) At paragraph [42], the judge said this:

"Finally, I should make clear what I have not decided. My decision relates to the facts of this case, which involve a vessel moored adjacent to the bank of a tidal river. Whether, and if so how, my decision translates to a case of a vessel continuously moored for the necessary period away from the riverbank, . . . [is] for others to ponder: . . ."

This appeal

15. The Authority obtained permission to appeal from the order of 9 May 2009 from this Court. In granting permission on the papers the single Lord Justice Aikens expressed the view that the case raised an issue of public importance: "whether an owner of a vessel which is moored in a tidal river or other area of tidal water can acquire, by adverse possession, title to the river bed/foreshore for the footprint of the vessel where (a) the title to the riverbed/foreshore has not been registered and (b) the vessel rests on the bed/foreshore at low tide?".
16. It may be said, I think, that that is to state the issue too widely. The appeal is from the order which the judge actually made. The declaration in the order of 8 May 2009 relates only to a vessel moored on a tidal river: it does not extend to vessels moored in other areas of tidal water. Further, the judge made it clear (at paragraph [42] of his judgment) that he did not decide what the position would be in the case of a vessel moored away from the river bank: he intended to confine his decision to the facts of the case before him "which involve a vessel moored adjacent to the bank of a tidal river".
17. The appellant's notice, filed on 28 May 2009, invited the Court to set aside the order of 8 May 2009: it did not seek a variation of that order or the substitution, for the declaration in paragraph 1 of that order, of a declaration in different terms. In particular, the Authority did not, by its appellant's notice, seek a declaration to the effect that it was not possible for the owner of a vessel moored on a tidal river to acquire title by adverse possession to a part of the river bed or the foreshore for the footprint of that vessel. In those circumstances, the outcome of a successful appeal would be that the preliminary issue would remain formally unresolved.
18. When the appeal was opened before this Court counsel for the appellant was invited to consider whether that was, indeed, the outcome which his client sought. By way of response, counsel advanced three propositions. On the basis of those propositions, counsel accepted that it was not open to the appellant to seek a declaration to the effect that it was not possible for the owner of a vessel moored on a tidal river to acquire title by adverse possession to a part of the river bed or the foreshore for the footprint of that vessel. He accepted 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; and, in effect, invited the Court to indicate in a judgment what those circumstances might be.
19. The three propositions advanced on behalf of the appellant were these:

"(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."

It is, I think, plain that propositions (1) and (2) are advanced in the alternative.

20. It is impossible, on the basis of the agreed statement of assumed facts, to say whether the vessel in the present case would, or would not, "float off . . . if released from its moorings" either (1) "at Mean High Water" or (2) "where the waters were at their average depth during the preceding calendar year". All we know is that the foreshore dries some 3 metres above chart datum at the point where the vessel is moored; that chart datum is 2.29 metres below Ordnance Datum (Newlyn); and that "there is clearance under [the] vessel at [high tide] and other times" (item 7 in the statement). We know neither the draft of the vessel, nor the height or rise of tide at Mean High Water (Springs or Neaps). Nor do we know whether the vessel rests on a hard foreshore at low water or sinks into a mud berth. We know that "the vessel's position at its mooring (and therefore its footprint) will not have remained static but will necessarily have moved by reason of wind and tide" (item 5 in the statement); but -notwithstanding the Authority's concession that the movement was to be "measured in feet only" (which the judge recorded at paragraph [20] of his judgment) - we do not know the extent to which the vessel moves within its "footprint" (whatever meaning is to be given to that word for the purposes of the declaration).
21. It is plain, therefore, that the Court is invited by the appellant to lay down an arbitrary test – by adopting one or other of propositions (1) or (2) – which may have no application, on the facts when they are known, to the present case. For my part, I do not think it appropriate to accede to that invitation. Convenient as it may be to have a "rule of thumb" test which can be applied in cases of this nature, I am not persuaded that it is for the courts to prescribe what that test should be. The task of the courts, as it seems to me, is to decide cases on their facts in accordance with principle. The principles applicable to the acquisition of title to unregistered land by adverse possession are well established. The proper course, in the present case, is to determine what the facts are – a task which should not be unduly difficult – and then to apply those principles to the facts as determined.
22. Nevertheless, it is unsatisfactory to leave the order of 8 May 2009 in its present form. It is clear that the declaration, as made, does not truly reflect what the judge actually decided: in that, first, it purports to extend to vessels moored in a tidal river but not adjacent to the river bank (notwithstanding paragraph [42] of the judgment) and, second, it is expressed in general terms (notwithstanding paragraphs [22] and [33]).
23. It would have been open to Mr Ashmore to invite this Court to vary the order of 8 May 2009 by the addition of words to the effect that the declaration was made on the basis of the agreed statement of assumed facts. But, he has not done so. Further, the appellant would object to an order in that form: because it does not accept that Mr Ashmore could have obtained a title by adverse possession on the basis of the assumed facts. So it would be necessary to decide whether the judge was correct to reach the conclusion that he did. And, third, it is open to doubt whether a declaration in that form would serve any useful purpose.
24. The statement of assumed facts does not have the status of a pleaded case; as the judge recognised (at paragraph [8] of his judgment), it was produced only for the purposes of the trial of the preliminary issue "and without prejudice to the parties' respective pleaded cases". It cannot be treated as a definitive or exhaustive statement of the facts which either party would wish to advance at a trial. That is demonstrated by the submissions which Mr Ashmore made to the judge (to which reference has already been made at paragraph [14](2) of this judgment) and by the skeleton argument prepared on his behalf for use in this Court. In those circumstances there is, as it seems to me, no useful purpose to be served by this Court addressing the question whether the judge was correct to reach the conclusion that he did. As I have said, the appellant accepts, in principle, 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. A decision on assumed facts which are neither definitive nor exhaustive could not be determinative of the outcome at a trial.

Conclusion

25. Given that it is unsatisfactory to leave the order of 8 May 2009 in its present form – for the reasons that I have explained – and that the Court could not vary that order by the addition of words to the effect that the declaration was made on the basis of the agreed statement of assumed facts without deciding that the judge was correct to reach the conclusion that he did on those assumed facts – a decision which would serve no useful purpose – I am satisfied that the only sensible course is to set aside the declaration in paragraph 1 of that order. But I would make it clear that the declaration is set aside only on the basis that it is in terms which do not properly reflect the judge's conclusion; and that the Court is satisfied that it would serve no useful purpose to decide whether the judge was correct to reach the conclusion that he did on assumed facts and expresses no view on that question. I would leave paragraphs 2 and 3 of the order of 8 May 2009 undisturbed.
26. That will cause no prejudice to Mr Ashmore. The issue raised, in general terms, by his letter of 1 September 2008 is no longer contentious (if it ever was). It is accepted by the Authority that it is possible, in appropriate circumstances, to acquire title by adverse possession of the foreshore and river bed by reason of mooring. The question in this case has been, and remains, whether – on the facts as established (not on assumed facts) - Mr Ashmore has done so. That question needs to be tried. If I may say so, delay and expense would have been saved if it had been appreciated that (given the Authority's decision to accept, in principle, that title to the foreshore and river bed could be acquired by reason of mooring) this was not a suitable case for a preliminary issue.
27. Subject to any submissions that the parties may wish to make, I take the view that the Court should make no order as to the costs of this appeal.

Lord Justice Richards:

28. I agree.

Lord Justice Longmore:

29. I also agree.