Judicial opinions differ – sharply, so it seems – about the rules that apply to claims to adverse possession of tidal riverbeds. Port of London Authority v Ashmore [2009] EWHC 954(Ch) suggested that it might be possible for a barge floating on a river at high tide and resting on the riverbed at low tide to establish a claim to adverse possession of the riverbed. However, no decision was reached on the facts of that case.
By contrast, in Couper v Albion Properties Ltd [2013] EWHC 2993 (Ch); [2013] PLSCS 252 the court rejected the squatter’s claim. Guided by the rules that apply to public highways, Arnold J took the view that adverse possession is impossible where there are public rights of navigation.
One week later, in Port of London Auhority v Tower Bridge Yacht and Boat Company Ltd [2013] EWHC 3084 (Ch), Mann J accepted that it was legally possible to obtain adverse possession of a tidal riverbed, although the claimant failed to establish that it had been in exclusive possession in that case. The judge explained that he and Arnold J had each been aware of the other case, and of each other’s views. And, where their views conflicted, they had not been persuaded to change their minds.
The latest case in this saga is Port of London Authority v Mendoza [2017] UKUT 146 (TCC). It concerned a claim to a rectangle of riverbed big enough to contain a houseboat called the “Wight Queen”, which had continuously occupied the same mooring for the 13 years. The First Tier Tribunal found in favour of the occupier. But the Upper Tribunal has overturned the decision on the ground that a squatter’s intentions generally have to be inferred from his or her own actions: Tecbild v Chamberlain [1969] 209 EG 1069. And, in the judge’s view, mooring the vessel was an equivocal act which, by itself, was insufficient to establish the requisite intention to possess in support of an adverse possession claim.
The judge explained that the Wight Queen could have been moored where she was for any number of reasons. The casual observer, and likewise the paper owner, could not have known anything about the boat owner’s intentions from the boat’s presence. It was not possible to tell how long she had been there or how long the owner intended to stay, whether she was moored in exercise of an easement or public right or whether she was acquiring such rights, whether she had a licence to moor, or whether she was just trespassing for a few days or months. As a result, it had not been apparent to the world at large, initially at least, that the squatter was in possession of the riverbed and was there to stay, with the intention of keeping everyone else off that land.
Judge Elizabeth Cooke observed that the status of Ashmore was “somewhat uncertain” and that it was not an authority on the position. She was equally unhappy about the principle propounded in Couper that adverse possession is impossible where riverbeds are subject to public rights of navigation. The judge suggested that there was no such rule and that the analogy with public highways breaks down because highways, which have to be completely open to both traffic and pedestrians, are very different from rivers.
Allyson Colby is a property law consultant
