Port of London Authority v Mendoza

Adverse possession – Riverbed – Houseboat – Intention to possess – Appellant having paper title to riverbed – Respondent claiming title to area of riverbed by adverse possession – Whether mooring of houseboat amounting to adverse possession – Whether demonstrating requisite intention to possess – Appeal allowed In November 2009, the appellant applied for first registration of its title to part of the bed and foreshore of the River Thames between Kew Bridge and Brentford Ait, based on a paper title deriving from an indenture and Act of Parliament dating from 1857. The objectors to that application included the respondent, who lived on a houseboat moored next to the bank of the Thames. He claimed to have acquired title by 12 years’ adverse possession to an area of the riverbed under and around the footprint of the houseboat. The respondent had first moved onto the houseboat in 1997 and had purchased it, along with any relevant mooring rights, in 1998. Although the boat had been turned around now and then, and moved from its moorings occasionally, it had mostly remained moored to a post and concrete piers standing in the river. Since the river was tidal at that point, the houseboat came to rest on the riverbed twice a day, moving back and forth a little with the wind and the tide. The first-tier tribunal (FTT) determined that the respondent had acquired title to an area of riverbed confined to the actual footprint of the boat. It directed the Chief Land Registrar, in giving effect to the appellant’s application, to exclude that area from its title. On appeal from that decision, the appellant contended that the respondent’s possession was too equivocal in nature to be capable of establishing the necessary intention to possess for the purposes of his claim. It submitted that the mooring might, for example, be interpreted as taking place pursuant to an easement; or with the permission of the local authority, which had a statutory licence to maintain the post and concrete piers to which the houseboat was moored; or in the exercise of the public right of navigation on that stretch of the Thames; or simply as an act of persistent trespass without any intention to take adverse possession. The appellant further contended that the existence of public rights of navigation made it impossible to acquire a title by adverse possession. Held: The appeal was allowed. (1) Adverse possession had two ingredients: factual possession and the intention to possess. The self-serving evidence of the adverse possessor as to his or her intention was to be treated with caution; it was unlikely, by itself, to support a finding of intention to possess and would need to be reinforced by other evidence. Intention to possess was often demonstrated by factual possession. However, for intention to be evident from the fact of possession, the possession had to be unambiguous. Possession that gave an ambiguous message and was open to more than one interpretation could not establish an intention to possess, since it would not demonstrate to the world an intention to possess the land to the exclusion of everyone else: Powell v McFarlane (1977) 38 P&CR 452 and Wretham v Ross [2005] EWHC 1259; [2005] PLSCS 129 applied. (2) There was no authority for the proposition that the mooring of a boat on a tidal river was capable, without more, of establishing the requisite factual possession and intention to possess so as to amount to adverse possession. That did not mean that the mooring of a boat in that way could not ever amount to adverse possession; instead, the question had to turn on the facts of each case: Port of London Authority v Ashmore [2009] EWHC 954 (Ch); [2009] PLSCS 150; [2010] EWCA Civ 30; [2010] PLSCS 36 and Moore v British Waterways Board [2013] EWCA Civ 73; [2013] PLSCS 52 considered. (3) All four of the potential explanations proffered by the appellant for the mooring were plausible. In light of those reasons why the houseboat might have been moored, it was hard to see how anyone could know that its owner intended to possess and control a rectangle of river bed and to exclude everyone else. The presence of a moored boat was as equivocal an act of possession as could be imagined. The casual observer, and likewise the paper owner, could know nothing of the boat owner’s intention from the boat’s presence. It was not possible to tell how long it had been there; how long the owner intended to stay; whether it was moored in exercise of an easement or of a public right; whether it was acquiring an easement; whether it has a licence to moor; or whether it was just trespassing for a few days or a few months. It might therefore be very difficult, in general, for someone who intended to take adverse possession of the river bed by mooring a boat there to make that intention clear to the world. (4) That ambiguity was not removed by the fact that the respondent occupied the houseboat as his home. A boat occupied as a home did not always stay in the same place. Moreover, there was no finding of fact to the effect that it was obvious to anyone looking at the boat that it was being used as a home. Even if it was, that would not have indicated an intention to stay for ever and to exclude others from an area of the riverbed. Nor was it a solution to say that the appellant knew, or could have discovered, that there was no easement or licence to moor the boat. Even if it had checked with the local authority, the ambiguity would not have been resolved. The absence of an easement or licence would not rule out the exercise of public rights of navigation or the simple case of persistent trespass. The act of mooring simply did not give anyone an insight into the boat owner’s intentions. Accordingly, the necessary intention to possess was not established. (5) The riverbed was vested in the appellant by statute for purposes including the regulation of public navigation. Those navigation rights could not be extinguished by adverse possession. However, there could be no absolute rule that adverse possession was impossible on the bed of a river that was subject to public rights of navigation. In the instant case, the presence of the houseboat had no effect on the public in the exercise of their right to navigate. The houseboat was moored on an arm of the river that was little used, with public navigation happening in the wider channel on the other side of the long island in the midst of the river. Accordingly, had the respondent been able to establish not only factual possession but also intention to possess, the existence of the public right of navigation would not have made any difference to his claim. Rivers were different in that respect from highways, which had to be completely open to traffic and pedestrians. A closer analogy was perhaps to the adverse possession of land through which a public footpath ran; adverse possession did not extinguish the footpath and the public’s rights over the path continued unabated: Couper v Albion Properties Ltd [2013] EWHC 2993; [2013] PLSCS 252, R (on the application of Smith) v Land Registry [2010] EWCA Civ 200; [2011] QB 413; [2010] 2 EGLR 1 and JA Pye (Oxford) Ltd v Graham [2002] UKHL 30; [2003] 1 AC 419; [2002] PLSCS 163 considered. (6) Since possession in the instant case was ambiguous, the respondent’s objection to the appellant’s application for registration was not substantiated. The registrar was directed to respond to the application as if that objection had not been made. Christopher Stoner QC (instructed by the legal department of the Port of London Authority) appeared for the appellant; Christopher Jacobs (instructed by direct access) appeared for the respondent. Sally Dobson, barrister Click here to read transcript: Port of London Authority v Mendoza