In Port of London Authority v Ashmore [2009] EWHC 954 (Ch); [2009] 19 EG 111 (CS), the High Court upheld a claim that the owner of a vessel, which had been moored in a particular place the River Thames for many years, had acquired title to the riverbed below the vessel through adverse possession.
The decision had potentially wide implications for the authority, which is applying to register its title to the freehold of 95 miles of the tidal bed of the River Thames. It appealed against that decision, but unfortunately, the issues between the parties have still not been resolved.
The authority did not ask the Court of Appeal for a declaration that it was not possible for the owner of a vessel moored on a tidal river to acquire title by adverse possession to part of the riverbed or foreshore for the footprint of that vessel. It simply asked the court to set aside the previous judgment on the ground that the declaration made by the High Court did not truly reflect what the judge had decided. The Court of Appeal agreed, and the case will be reheard: see [2010] PLSCS 36.
Interestingly, the authority accepts that in some circumstances the owner of a vessel moored on a tidal river might acquire title by adverse possession to part of a riverbed or foreshore. However, it does not accept that the barge owner could have obtained title by adverse possession on the basis of the facts that were assumed for the purposes of the trial in this case. Consequently, when the case is reheard, the court will need to establish the facts before deciding whether the barge owner has a valid claim.
In this case, the squatter’s boat rose and fell with the flowing and ebbing of the tide. At high tide, a frogman could have gained access to the riverbed beneath the boat, which came to rest on land only when the tide was low. In other words, the barge owner claims ownership of the soil, even though the barge was not in constant contact with it.
At first sight, this might appear a strange anomaly. However, although they are rare in practice, the law recognises a particular type of interest in land, known as a “flying freehold”. This exists where part of a property extends physically over land belonging to a third party. Where each property is freehold, the property that is not in direct contact with the soil below is known as a “flying freehold”.
The existence of flying freeholds demonstrates that it is not necessary to own the soil below to acquire an interest in the airspace above. Conversely, if the barge owner’s claim proves successful, he will have established title to the soil beneath, even though his barge spends lengthy periods floating on the water above. Perhaps, in due course, this novel form of interest will become known as a “floating freehold”.
Allyson Colby is a property law consultant