Disputes about the ownership of river beds are quite unusual and consequently, the decision in Port of London Authority v Ashmore [2009] EWHC 954(Ch); [2009] PLSCS 150 is likely to attract interest.
The rules that apply to waterways depend on their status. Landowners own the land that lies underneath the water, but not the water itself. The general presumption that applies to non-tidal waterways is that the adjoining landowner owns the riverbed up to the middle of the waterway. Consequently, where a single landowner owns the land on both sides of a non-tidal river, the presumption is that the landowner owns the entire river bed as well. By contrast, the ownership of tidal waterways is independent of the ownership of the land adjoining the river. The presumption is that the beds of tidal waterways vest in the Crown.
Port of London Authority concerned a claim by the owner of a barge that was moored on the River Thames. He resisted the PLA’s attempts to register title to the part of the river bed where the barge was moored. He claimed that he had been in adverse possession of that particular part of the river bed because his barge had been moored there for many years, and the vessel came to rest on the river bed at low tide. The High Court upheld his claim.
Many will regard this as an odd decision. Others will argue that it is a logical development of the decision in Roberts v Swangrove Estates Ltd [2007] EWHC 513 (Ch); [2007] PLSCS 56, which concerned a claim for adverse possession of parts of the tidal estuary of the River Severn. In Roberts, the court refused to allow the fact that an area was often entirely covered by water in order to prevent the Crown from asserting a claim to adverse possession of the land.
It is interesting to contrast Port of London Authority with R (on the application of Smith) v Land Registry [2009] PLSCS 57, in which the court ruled that squatters cannot acquire title to land that is subject to public rights of way.
Tidal rivers are subject to public rights of navigation, and it is not clear why the PLA conceded that the fact that the River Thames was subject to public rights of navigation would not prevent the barge owner from acquiring title to the river bed. None the less, the judge did indicate that the barge owner may have won a pyrrhic victory, because the river would continue to remain subject to public rights of navigation.
It could be argued that the existence of public rights of way should not be allowed to affect the principles that apply to the ownership of the land beneath. Consequently, it ought to be possible to obtain adverse possession of subsoil, or a river bed, in the same way one can obtain adverse possession over any other land. Others might argue that it would be nonsensical to allow squatters to obtain title to land subject to public rights of passage that they are unable to obstruct. Practitioners will hope that the Court of Appeal will be given the opportunity to consider the matter further.
Allyson Colby is a property law consultant