Port of London Authority v Ashmore [2009] EWHC 954 (Ch), [2009] All ER (D) 74 (May), Chancery Division
Stephen Smith QC sitting as a deputy judge of the High Court, 8 May 2009
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 (i) the title to the sea or river bed or the foreshore has not been registered; and (ii) the vessel rests on the bed or the foreshore at low tide.
Charles Harpum (instructed by the Port of London Authority) for the authority. The defendant appeared in person.
The defendant was the owner of the sailing barge Atrato.
In 1983 he moored the vessel near Battersea Bridge on the River Thames, where save for a short period in dry dock, she had remained at all material times. He had no permission from the claimant authority, which alleged that he had been a trespasser on their property since 1983. He had at all times lived on the vessel, and had never paid anything in respect of his residence.
The authority wished to register title to the bed of the Thames. The defendant objected to the application in so far as it concerned the area of the bed upon which the vessel came to rest twice a day at low tide, and alleged that he had acquired title to that part of the bed by way of adverse possession. The authority brought an action seeking possession of the part of the river bed or foreshore which was occupied by Atrato, together with the space above the bed through which the river flowed, and the air column above that.
Adverse possession
It was ordered that a preliminary issue be tried as to whether it was possible for the owner of a vessel moored in a particular place on tidal water to acquire title by adverse possession to the sea or river bed or foreshore for the footprint of that vessel where the title had not been registered and where the vessel rested on the bed or foreshore at low tide.
Stephen Smith QC:
The authority’s first submission was that the defendant did not have exclusive possession of the bed of the river.
While Atrato rested on the bed every day at low tide, at other times there was clearance under it. There was, it submitted: “no continuous, unbroken possession of the bed.” Nor did Atrato occupy a defined portion of space in the water/air column above the bed because Atrato went up and down with the tide. Atrato’s lateral position also changed somewhat with the wind and the tide; in other words, when it came to rest on the river bed it would not always occupy exactly the same “footprint” (though any difference was to be measured in feet only).
His lordship rejected the notion inherent in the authority’s submissions that for a squatter to be able to establish sufficient possession for a claim of adverse possession, he had to prove some physical contact with the relevant land at all times.
Exclusive possession
The question of what acts constituted a sufficient degree of exclusive possession depended in particular on the nature of the land and the manner in which land of that nature was commonly used or enjoyed.
When that land was part of the bed of a tidal river which was flooded twice a day, the fact that the squatter’s boat rose and fell with the flowing and ebbing of the tide did not mean that the squatter had relinquished physical possession of the land upon which the boat rested at low tide.
True it might be 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 facts for the preliminary issue contained no reference to frogmen having actually swum underneath Atrato (whether employed by the authority or otherwise), and the point was therefore in the instant case an academic one.
In any event, there was a part of Atrato which rested at all times on (perhaps in) the bed of the river, even at high tide, viz. its anchor, and if, contrary to his lordship’s view, some continuous physical contact were necessary, that contact could be established through the anchor.
Degree of possession
It was plainly not necessary for a squatter to build upon the disputed land before a sufficient degree of possession might be established. His lordship agreed with Bligh v Martin [1968] 1 All ER 1157 that a squatter could be in continuous possession even if he did not use the land continually.
In the instant case, the defendant had 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.
It followed that the defendant had established a sufficient degree of possession of the relevant part of the bed of the River Thames to claim title to it In principle it was 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, floated above that part and did not always rest on it.
His lordship turned to the second question and held that, on the facts, the defendant had demonstrated a sufficient intention to possess the relevant part of the river bed.
The preliminary question would therefore be answered “yes”.
