River – Mooring – Possession – Defendant mooring boat beside river bank for 26 years – Claimant port authority wanting to register title to river bed – Defendant claiming title by adverse possession to part of riverbed where boat moored– Whether possibility of boatowner acquiring title by adverse possession where title not registered and vessel resting on bed or foreshore only at low tide – Preliminary issue determined in favour of defendant
The defendant owned a sailing barge that had been moored in the River Thames near Battersea Bridge since 1983. He dropped anchor and tethered the boat fore and aft using the mooring rings set into the wall (which constituted the bank of the river at that point) and it had remained there since 1983, save for two months when it was moved to dry dock for an overhaul.
The defendant had moored his boat without obtaining permission from the claimant authority, a statutory body that was responsible for conserving the tidal part of the River Thames. The claimant said that he had been a trespasser on its property since 1983. The defendant had always lived on the boat and had paid nothing in respect of his residence, except for the premium on the boat’s insurance policy and its registration fees.
The claimant applied to register title to the riverbed. The defendant objected in so far as it concerned the area of the bed upon which his boat came to rest twice a day at low tide. He claimed that he had acquired title to that part of the river bed by adverse possession, the limitation period being 12 years.
The claimant sought possession of that part of the river bed or foreshore that was occupied by the defendant’s boat, together with the space above the bed through which the river flowed and the air column above that. It also sought an injunction to restrain further trespasses and declaratory relief, contending that the defendant had not been in sufficient factual possession of the relevant area and that the acts of possession relied upon did not unequivocally demonstrate an intention to possess.
The question that was tried as a preliminary issue was whether the owner of a vessel moored in a particular place on a tidal river or other tidal water could acquire title by adverse possession to the sea or river bed or foreshore for the footprint of that vessel where such title had not been registered and the vessel rested on the bed or foreshore only at low tide.
Held: The preliminary issue was determined in the defendant’s favour.
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 that, at least for some of the time, floated above that part and did not rest on it at all times: Denaby & Cadeby Main Collieries Ltd v Anson [1911] 1 KB 171 followed.
A squatter did not have to prove physical contact with the relevant land at all times in order to establish sufficient possession for a claim of adverse possession. The question of what acts constituted a sufficient degree of exclusive possession depended in particular upon the nature of the land and the manner in which it was commonly used or enjoyed. When that land formed part of the bed of a tidal river that 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. The fact that, short of building on it, a squatter could not be present physically on the foreshore every minute of the day was not a bar to a claim to adverse possession of it: Powell v McFarlane (1979) 38 P&CR 452; Red House Farms (Thorndon) Ltd v Catchpole [1977] 2 EGLR 125; (1976) 244 EG 295; and JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 considered.
The correct test was what the possession by this occupier would say to someone with the knowledge of the paper owner if it were aware of what was happening to its land. In the instant case, the mooring of the vessel was not attributable to anything other than an intention to possess that part of the river bed. The defendant was not exercising a public right of navigation, he was not the riparian owner, nor the owner of any other land in the vicinity for which he needed to enjoy an easement, and he had never had a licence or a lease relating to the river bed, as the claimant would have known. Accordingly, the defendant had established not only the necessary fact of possession but also a sufficient intention to possess the relevant part of the river bed throughout the material time.
Charles Harpum (instructed by Port of London Authority) appeared for the claimant; the defendant appeared in person.
Eileen O’Grady, barrister
