Adverse possession – Mooring – Tidal river – Respondent mooring barge on tidal River Thames adjacent to bank – Appellant statutory authority applying for first registration as owner of riverbed and foreshore – Respondent claiming title by adverse possession to part of riverbed where barge moored – Preliminary issue tried as to whether such claim possible where title not registered and vessel resting on bed only at low tide – Issue determined in favour of respondent on assumed facts – Appeal allowed – Full trial on facts required
The respondent owned a sailing barge, which, since 1983, he had moored in the same place on the tidal River Thames. The appellant, a statutory body with responsibility for conserving the tidal Thames, applied to the Land Registry for first registration of the riverbed and foreshore, which vested in it by statute in so far as it did not vest in a third person. The respondent objected, claiming that he had acquired title, by 12 years’ adverse possession, to the part of the riverbed and foreshore on which his barge came to rest at low tide.
The appellant applied for a declaration that the respondent had no right to moor, and for possession of the part of the riverbed or foreshore occupied by his barge. By agreement between the parties, a preliminary issue was tried as to whether it was possible for the owner of a vessel that was moored in a particular place on a tidal river to acquire title to the bed by adverse possession, in circumstances where the title was unregistered and the vessel rested on the bed or foreshore at low tide. The appellant conceded that title to the bed of a tidal river, could, in principle, be acquired by adverse possession and that the common law public right of navigation over the tidal Thames did not preclude that from occurring.
The judge determined the issue in favour of the respondent on the basis of a statement of assumed facts agreed by the parties. He indicated that his decision applied only to a vessel moored adjacent to the riverbank. He made a declaration that it was possible for the owner of a vessel 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 the title had not been registered and the vessel rested on the bed or the foreshore at low tide.
The appellant appealed. It sought to set aside the declaration but did not seek a declaration in different terms. However, it advanced the propositions that adverse possession of the riverbed could occur only if it would not have been possible for the vessel, if released from its moorings, to float off at either mean high water or, alternatively, when the waters were at their average depth during the preceding calendar year.
Held: The appeal was allowed.
The declaration made by the judge could not stand since it did not truly reflect what he had decided. It was unsatisfactory so far as it purported to extend to vessels moored in a tidal river but not adjacent to the river bank, and so far as it was expressed in general terms. The court could not vary the declaration to state that it was made on the basis of the agreed statement of assumed facts. Given that the appellant did not accept that the respondent could have obtained a title by adverse possession on the assumed facts, any such variation would require the appeal court to decide whether the judge had been correct to reach the conclusion that he did. Such a decision could serve no useful purpose since the assumed facts: (i) did not have the status of a pleaded case; (ii) had been produced solely for the purpose of the preliminary issue; and (iii) could not be treated as a definitive or exhaustive statement of the facts that either party would wish to advance at a trial. A decision on assumed facts that were neither definitive nor exhaustive could not be determinative of the outcome of a trial.
Nor was it possible for the court to adopt either of the propositions put forward by the appellant, since that would involve laying down an arbitrary test that might have no application to the facts of the instant case, once these were known. The task of the court was to decide cases on their facts in accordance with principle. The principles applicable to the acquisition of title to unregistered land by adverse possession were well established. The proper course was to determine what those facts were and then apply the principles to them. The appellant did not dispute that it was possible, in appropriate circumstances, to acquire title by adverse possession of the foreshore and riverbed by reason of mooring. The question of whether the respondent had acquired such title on the facts as actually established, not assumed, needed to be determined at a trial. The case had not been suitable for a preliminary issue.
Charles Harpum (instructed by the legal department of the Port of London Authority) appeared for the appellant; the respondent appeared in person.
Sally Dobson, barrister