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You are here: BAILII >> Databases >> England and Wales Land Registry Adjudicator >> Lynn Lewis Ltd v The Environment Agency (Rivers, Waterways and Foreshore : Construction of relevant legislation) [2007] EWLandRA 2005_1068 (06 August 2007) URL: http://www.bailii.org/ew/cases/EWLandRA/2007/2005_1068.html Cite as: [2007] EWLandRA 2005_1068 |
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REF/2005/1068
The Adjudicator to Her majesty’s Land Registry
LAND Registration act 2002
IN the matter of a reference from hm land registry
BETWEEN
APPLICANT
and
RESPONDENT
Property Address: Land at Ferry Lane Shepperton Surrey
Before: Mr Rhys sitting as Deputy Adjudicator to HM Land Registry
Sitting at: Procession House 55 Ludgate Hill London EC4
On: 4th, 5th, 6th and 7th June 2007
Applicant Representation: Mr R Stewart-Smith of Counsel instructed by Messrs Carter Bells Solicitors
Respondent Representation: Mr T Jefferies of Counsel instructed by Messrs Kidd Rapinet Solicitors
DECISION
___________________________________________________________________________
1. On 23rd February 2005 the Applicant applied to the Land Registry for a possessory title to two adjoining parcels of land at Ferry Lane, Shepperton, Surrey. Ferry Lane runs southwards from the village of Shepperton towards and at a right angle to the course of the River Thames. Where it meets the river it turns west at 90 degrees, and thereafter runs parallel with the edge of the River Thames in an upstream direction. Ferry Lane, is a public highway, as is its western continuation which is known as “Towpath” for some of its length. At a short distance to the west of the bend in the road at the end of Ferry Lane, the road passes Shepperton Lock, which (together with some surrounding land) is in registered in the ownership of the Respondent. The Applicant is the proprietor of a commercial boatyard and the owner and operator of the Weybridge ferry, a passenger ferry crossing the Thames between Weybridge and Shepperton. The Applicant is also the registered proprietor of some land and premises at the end of Ferry Lane. First, a shop and chandlery knows as “Nauticalia” at the south-western end of Ferry Lane, in the angle formed by the sharp bend in the road and on its northern side. Secondly, a boatyard and other commercial premises on the opposite side of Ferry Lane, that is at the south eastern end. This land is registered under Title No SY635960. The two parcels of land subject to the application for possessory title (which I shall together refer to as “the Disputed Land”) comprise the following:
(1) An area of land situated between the end of Ferry Lane (at the point where the road turns 90 degrees as I have described) and the edge of the River Thames, and formed principally of the substantial concrete slipway at which (inter alia) the ferry embarks and disembarks. I shall call this area “the Slipway” and this area is marked “D” on the Plan attached to the Applicant’s application.
(2) An area to the west of the Slipway – that is, upstream of it – and to the south of the public highway, forming the bank and edge of the River Thames at this point. This area - which I shall call “the Bank” – extends from the retaining wall next to the Slipway as far as a fence (“the Fence”) which separates it from land to the west which is in the ownership of the Respondent, forming part of the curtilage of Shepperton Lock. There is a metal Armco barrier between the Bank and the public highway. The Bank is at a higher level than the Slipway – hence the retaining wall – and, as may be expected, slopes away from the public highway and Armco barrier to the north and down to the edge of the River Thames. This area is marked “E” on the Plan I have referred to
2. At this point I should say something about the parties. The Applicant company has been operating at this site since 1984. In that year, it acquired all the shares in a company known as Geo. Dunton & Co Ltd (“Duntons”). Duntons had operated a boatyard at this point since the late 19th Century, and also operated the Ferry, initially under the terms of a 1928 Lease, and (since 1955) as freehold owners. Duntons was founded by Mr George Robert Dunton, and was a well-known Thames boat-builder. The Applicant continued to run the boatyard and ferry after the acquisition in 1984, and also I believe also began a marine antiques business known as Nauticalia. In the course of the boatyard business, the Applicant uses the Slipway to recover and launch as many as 500 or so vessels a year, using a tractor to pull the boats out of the water. It also has moorings along the Bank, and maintains a jetty projecting into the river at this point at which boats are also moored. The Respondent is the successor in title to the National Rivers Authority (“the NRA”), which transferred its land and functions to the Respondent in or about 1995 or 1996. The NRA succeeded the Thames Water Authority in 1989 and had itself acquired its interest in the river from the Thames Conservators, who in turn had acquired their title from the City of London which, until the enactment of the Thames Conservancy Act 1857 (“the 1857 Act”), was the statutory undertaker in relation to the River Thames. The Respondent owns various parcels of land alongside the River Thames and claims to own the bed of the river. It also has various statutory rights and responsibilities with regard to navigation on the river. As I have said, it is the registered proprietor (under Title No SY657862) of certain land and premises adjoining the Disputed Land. This Title includes Shepperton Lock itself, and the river bank extending from the Lock as far as the fence at the western end of the Bank, as previously described.
3. As I have said, the Applicant applied to register a possessory title to the Slipway and Bank in 2005. The application was opposed by the Respondent, on the grounds that it was the legal or “paper” owner of the land, and furthermore it disputed that the Applicant had been in adverse possession. As it happens, the Respondent had itself applied to be registered with title to the same land in 1998, but that application had failed. Nevertheless, the Respondent claimed that it could show a good unregistered title to the land. The dispute could not be resolved by agreement, and it was referred to the Adjudicator by the Chief Land Registrar under section 73(7) of the Land Registration Act 2002 in June 2005. I heard the case over a period of four days, and had the advantage of a Site View both before and after the hearing, in both cases without the parties or their representatives. The Applicant was represented by Mr Rodney Stewart-Smith, and the Respondent by Mr Thomas Jeffries, both of Counsel, and I should like to record my debt to them both for their extremely thorough and comprehensive submissions on the complex issues of law and fact that this case has raised.
4. The Skeleton Arguments identified the following issues for decision:
4.1 Boundary agreement. It was alleged that the Respondent’s predecessors in title – the Thames Conservators – had in 1958 agreed with Duntons (the Applicant’s predecessor in title) that the boundary between the Respondent’s land and the Disputed Land was in the position now marked by the Fence, and that this agreement was binding on the Respondent and prevented it from objecting to the application.
4.2 The Respondent’s title. An issue arose as to whether the Respondent’s predecessor in title, namely the City of London, acquired title to any land pursuant to Section VII of the Private Act (50 Geo.III cap.204) which in 1810 granted the City of London the right to construct four new locks on the Thames including Shepperton Lock. I shall call this Act “the 1810 Act”. The answer to this issue depends (a) on whether as a matter of fact the Disputed Land was incorporated into a towing path constructed by the City of London as part of the Shepperton Lock works and, if so, (b) whether as a matter of law and on the true construction of the 1810 Act ownership of the Disputed Land thereby vested in the City of London.
4.3 Adverse possession. If – which the Applicant denies– the Respondent or its predecessors did acquire paper title to the Disputed Land, the Applicant contends that its title had been barred under the Limitation Acts many years ago by the adverse possession of the Applicant and its predecessors in title. Although a Human Rights Act point was initially taken by the Respondent in relation to the claim to adverse possession, this was abandoned at the hearing, since (a) the Beaulane v Palmer [2005] 3 WLrR 554 [o1]case cited by the Respondent does not of course apply to unregistered land, and (b) in any event the Applicant was relying on acts of possession that would have barred the Respondent’s title long before the Human Rights Act 1998 came into force in 2000. Indeed, the Applicant’s case on adverse possession is advanced regardless of the identity of the paper owner: i.e whether or not the Respondent is able to show that it is has paper title.
4.4 Actual possession. Even if adverse possession as such could not be established, nevertheless the Applicant argues that since the Respondent itself had no title to the Disputed Land, the Applicant’s actual possession of the Disputed Land is a sufficient interest to enable it to be registered with a possessory title.
4.5 Public highway. The Respondent contends (in the alternative to its claim to ownership) that the Disputed Land actually forms part of the highway or highway verge and cannot therefore have been acquired by the Applicant by way of limitation. For the reasons which I explain below, this is not a claim which is pursued by the Highway Authority.
5. In addition to these issues, the Respondent raised a new point at the outset of the hearing, based on Rule 41(1) and (2)(a) of the Adjudicator’s Rules. The rule states that:
“(1) Where the adjudicator has made a substantive decision on a reference, the substantive order giving effect to that substantive decision may include a requirement on the registrar to –
(a) give effect to the original application in whole or in part as if the objection to that original application had not been made………
(2) A requirement on the registrar under this rule may include –
(a) a condition that a specified entry be made on the register of any title affected………..”
Mr Jeffries contended that – even if the Respondent was unsuccessful in all its objections to the application – any registration of the Applicant with a possessory title should be made subject to a notice on the register to protect the public towing rights which, as a minimum, it alleged still existed over the Disputed Land. Obviously, this point depends on the Respondent being able to prove that such rights subsist over the Disputed Land. The Applicant objected to this issue being raised so late in the day, but made submissions on its merits, to which I shall refer in more detail below. Accordingly, this substantive issue – including the forensic issue whether it should be entertained by me at all – is also to be decided.
6. The evidence which I heard can be divided into the following categories.
6.1 First, there was a considerable amount of historical documentation, including maps, photographs, written records from the archives of the City of London and the Thames Conservators, and Inclosure Awards and similar public documents. These were primarily directed to the issue of whether the disputed land formed part of a Towing path allegedly constructed as part of the Lock works in the 19th Century, and whether it was owned by the City of London and its successors in title.
6.2 Secondly, on the Applicant relied on two hearsay statements from Mr Wilfrid Ronald Davy and Mrs Doris Coleman. Mr Davy lives in Portugal and for that reason did not attend the hearing and could not be cross-examined on the statement. Mrs Coleman had sadly died since making her statement. Both statements deal with the use of the Disputed Land since the 1920s (in the case of Mrs Coleman) and the mid-1930s (in the case of Mr Davy).
6.3 Thirdly, on the Applicant’s side, there was oral evidence from Mr Lynn Lewis, and his son Lindon Lewis, directed to the use of the Disputed Land since 1984. Both witnesses had also made witness statements.
6.4 Fourthly, the Respondents relied on the hearsay statement of a Mr Walters, an employee. Mr Walters was not present at the hearing and could not be cross-examined. His evidence related to the use of the Disputed Land since the mid-1990s.
6.5 Finally, the Respondents called oral evidence from Mr Tom Christie, the Navigation Secretary, whose evidence consisted mainly of his commentary on the documents relied on by the parties and the history of the Disputed Land in particular and the Shepperton area of the river in general. In addition, the Respondents relied on the oral evidence of two other employees, Mr Newman and Mr Smith, whose evidence related to the use of the Disputed Land since the 1970’s or thereabouts. All three of these witnesses had also made witness statements.
7. The historical evidence, as I have said, relates to the issues identified above as 4.2, 4.5 and 5. Is the Disputed Land part of the Towing Path constructed pursuant to the 1810 Act, and therefore owned by the Respondent? Alternatively, even if not owned by the Respondent, is it (a) subject to highway rights or (b) public towing rights? By and large, the remaining evidence relates to the adverse possession issue, although there are of course some overlaps. Although the Respondent’s claim to own the Disputed Land has been raised in these proceedings, it is not directly in issue, since the adjudication arises solely out of the Applicant’s claim to be registered with a possessory title to that land. As I have stated, the Respondent did make a previous application to be registered as proprietor of the Disputed Land, in 1998, which was unsuccessful. That application has not been renewed, and is not therefore within the ambit of this adjudication. My principal task, therefore, is to decide whether the Applicant has made out its claim to possessory title. In conducting this exercise, the question whether or not the Respondent is the owner of the Disputed Land occupies only a secondary position. However, if the Respondent is the owner of the land, there may be certain implications for the adverse possession issue. For example, in considering whether the Respondent has retained possession of the Disputed Land for the period relied on by the Applicant, the required quality and extent of that possession may be different according to whether the Respondent is an owner of the land, or merely a rival squatter. Furthermore, in view of the Respondent’s fall-back claim to enter a notice of public towing rights in relation to the Disputed Land, the issue of towing rights (as distinct from ownership) may have to be considered in depth, even if the Applicant succeeds. For these reasons, it seems to me that I ought at the outset to consider whether the Respondent is the legal or “paper” owner of all or part of the Disputed Land, before turning to the adverse possession issue. This involves not only a consideration of the evidence, but also the authorities which were cited to me in regard to the 1810 Act and its effect.
8. Before I describe the evidence relating to the Respondent’s claim to ownership of the Disputed Land, I will make the following preliminary points.
8.1 First, at this stage I am considering the Respondent’s ownership of the Disputed Land, not simply whether the land is subject to public towing rights. The Respondent asserts (see Paragraph 1 of its Statement of Case) that the Disputed Land “is properly part of a larger area of public towpath land at Shepperton Lock..” and that “Shepperton Lock and the associated public towpath was constructed in 1813 under express statutory enabling powers..”. The Respondent is, therefore, resting its title firmly on the assertion that its predecessor in title, the City of London, created a towing path by virtue of the 1810 Act, which includes the land now forming the Disputed Land and which vested in the Thames Conservators under the 1857 Act. It would not be enough, for these purposes, simply to prove that the Disputed Land is part of the towing path. As was recognised in the Memorandum dated 7th February 1947 (“the 1947 Memorandum”) to which I shall refer in more detail elsewhere in this Decision, only a proportion of Thames towing paths are actually vested in the river authority as owner. A substantial proportion are enjoyed under licence, alternatively public towing rights may have grown up by virtue of long user, in the manner described in paragraph 14.26 to 14.28 of “Water and Drainage Law” ed. Bates cited to me by the Respondent. The burden on the Respondent, therefore, is to establish that the Disputed Land was incorporated into a towing path which was created under the terms of the 1810 Act, and further that as a matter of law ownership thereby vested in the City of London and ultimately in it.
8.2 Secondly, there is no direct evidence that the City of London purchased the Disputed Land, or obtained a licence to create a towing path on it. I think it is common ground that the 1810 Act – the terms of which I shall consider in due course – does not contain any compulsory purchase powers. With one immaterial exception – the power to survey land – none of the City’s powers under the 1810 Act could be exercised “without the Consent of the Person entitled thereto first had and obtained in Writing for that Purpose..” (see Section V of the 1810 Act). It follows, therefore, that if the City of London used the Disputed Land to build a towpath, there ought to be a written record evidencing the landowner’s consent. No such record has been produced. Although of course the Respondent has disclosed all relevant documents – although not always at the appropriate time – inevitably the Applicant, and this tribunal, has not seen the entire archive. Accordingly, it is not known whether and to what extent other towpaths constructed under the 1810 Act are documented in writing.
8.3 As a third, and related point, the absence of any document either recording the construction of the towpath, or the consent of the landowner, has caused the Respondent to rely entirely on historical and archival information, from which it seeks to draw the inference that the Disputed Land is owned by it. This type of quasi-historical exercise is familiar to those who have ever been involved in public inquiries relating to highways, where reliance on ancient maps, tithe awards and similar material is the norm. However, it is important to approach the exercise in the correct way. In particular, caution must be exercised where there are a number of documents which are ambiguous, obscure or unclear, or where the material is contradictory. This is perhaps more so where (as here) the task is to ascertain the historic ownership, and not merely the historic use, of the Disputed Land. Ultimately, however, all the material must be looked at in the round, and a finding as to the ownership of the Disputed Land made on the balance of probabilities.
8.4 A complicating factor is that the original Shepperton Lock, constructed between 1810 and 1813, was re-located at the beginning of the 20th Century. It appears that the bank of the river may have been enlarged or re-aligned at this point, and it is therefore possible that at least some part of the Disputed Land actually formed part of the river when the original Lock was constructed. I shall refer to the documents from which this inference can be drawn, in my review of the historical documentation. However, there is no clear evidence available as to the precise extent of the work carried out which precisely identifies the areas of land which are said to be formed by this means. Furthermore, as its Statement of Case makes clear, the Respondent expressly relies on the works carried out between 1810 and 1813 as creating the towpath, doubtless on the basis that any subsequent physical extension of the embankment at this point would also be comprised in the towpath. In the event, therefore, the Respondent’s case on ownership has been focused almost entirely on the original construction of Shepperton Lock, and only peripherally on the re-construction of the lock in the early 20th Century.
THE HISTORICAL EVIDENCE 1810 to 1955
9. I shall now set out the principal items of historical, archival and documentary evidence relied upon by both parties. For obvious reasons, I have not mentioned each and every separate item, but I have concentrated on those which the parties identified as important. It will probably be convenient if I set out my conclusions with regard to each separate item as they arise.
10. 1813-1820
10.1 The Respondent relies on the history of the River Thames by Mr Fred Thacker, Volume II “Locks and Weirs” (“Thacker”). The book was originally published in 1914. At page 419 it is stated that Shepperton Lock was opened for traffic in January 1813, and this is not controversial. The first lock-keeper was a William Hatch. At pages 420 and 421 of Thacker there is reference to the Ferry at Shepperton. Apparently, in 1815 the operator of the Shepperton Church Ferry - a Mr Downton, possibly an ancestor of the Mr Dunton referred to above – complained that Mr Hatch was poaching his business by ferrying horses across the river. Mr Hatch was instructed to desist. In 1820 it appears that the same complaint was made. On this occasion Mr Winch – the largest owner of barge horses in the area – supported Mr Hatch’s Ferry “at the Lock”, since the alternative route (via the Church Ferry) “would delay the Barges very materially”. Mr Hatch was required to limit his ferry to barge traffic only, and to take no passengers.
10.2 The Respondent relies on these passages in the following way. It says that it demonstrates that the ancient Thames ferry, from the Church, was being superseded by the “new” ferry operated from Shepperton Lock. The Respondent draws two inferences from this. First, that the new ferry was operated from the position of the existing Weybridge Ferry. Secondly, that this new ferry could only have been reached by horses if the Disputed Land had been part of the towpath constructed by the City of London.
10.3 In my view, these conclusions, or inferences, are not justified. There is no indication from these passages as to where the “pirate” horse ferry embarked and disembarked. It could equally have embarked at a point closer to the Lock, or even from the Lock Island itself. Furthermore, even if it did leave from the same point, that does not necessarily mean that towing continued along the river bank. There is no evidence that barge horses, once uncoupled from the barges, would need a towing path in order to reach the ferry.
10.4 I do not think therefore that this historical information assists in determining the ownership of the Disputed Land, although it provides useful background material.
11. 1832: Plan showing new lock and towpath extending to New Road
11.1 This document seems to have been drawn primarily to identify land ownership in the area of Shepperton Lock and Ham-Haw (or Hamhaugh) Point. It appears to be the earliest available map showing Shepperton Lock. The Respondents assert (see paragraph 1 of the Statement of Case) that “The plan indicates that alongside the new lock a new towpath had been made, including [the Disputed Land]”. This plan is interesting for a number of reasons. First, it identifies by verbal description a number of Towpaths and old Towpaths. The old Towpaths follow the bank around Hamhaugh Point – ie from a point upstream of the new Lock to just short of “the Commissioners’ Wharf”, the wharf just to the south of the Lock. The only towing paths marked as such are those which run along the Weybridge side of the river. It is true that there is an area, coloured brown, running along the northern (Shepperton) bank of the river, which, certainly upstream from the Lock, would have been part of the towpath, although it is not marked as such. Equally, public roads are marked with the same colouring. It is not therefore possible to tell whether the area of the Disputed Land is meant to be shown as a road, or as a towpath. Additionally, the towpaths on the Thames (as opposed to the Wey) are much wider than the narrow strip of brown colouring which the Respondents claim to be a towpath on the Disputed Land. Furthermore, the Disputed Land is not identified as being in the ownership of the City of London, unlike several other parcels of adjacent land. For instance, part of the Lock itself is marked “A”, which the key indicates as meaning “Corporation of London”, and another part of Hamhaugh Point is also shown as belonging to the Corporation (unlike the disused towpath). Interestingly, this land (marked “B”) includes the old towpath. Other parcels – on Docket Ait, and Keene’s Ait – are also identified as belonging to the Corporation of London. The parcel of land being No 79 on the Inclosure Award (see below) is identified as belonging to Earl Portmore.
11.2 In my view, this plan does not assist the Respondent. If anything, it undermines its case, since, as late as 1832, it fails to identify the Disputed Land as belonging to the City of London. I would also draw attention to the “Towing Horse Road”, running diagonally from the Thames north-easterly towards Shepperton Village. This suggests that barge horses were still crossing the river from the Church Ferry in 1832, to the extent that a road had been constructed (or at least was proposed to be constructed) from the towpath to carry them. This demonstrates that, in some cases at least, it was intended that barges would have entered the Lock without being towed by horse, and crossed over the river downstream of the Lock where they would have picked up their horses. Whether or not Mr Hatch was running a “pirate” ferry, it seems that the Church ferry was to some extent still being used in 1832 insofar as one can tell from this plan.
12. 1842: Inclosure Award
12.1 This document contains an allotment of Inclosures, by reference both to a verbal description and also to a map. Inclosure 15 is Shepperton Lock Footway, described as follows; “One other footway of the width of six feet commencing in the Millett running through and over the Allotment to William Vincent and terminating in the Towing Path near Shepperton Lock”. In the same instrument, there is an allotment of Inclosure 79, owned by the City and described as follows: “Brewers Mead” with the following abuttals; “N.Allottment to Vincent. E S & W The Thames Towing Path”. This may be contrasted with Inclosure 78, which was also in the ownership of the City of London and is described as abutting to the north on “City Land”. Once again, it seems that a distinction is being drawn between “Thames Towing Path” and “City Land” which would be consistent with the Towpath at this point not having been constructed as part of the Lock scheme, and not being regarded as within the ownership of the City of London but perhaps reputed to be a towpath as the result of long user by the public. The delineation of the alleged towpath on the Allotment plan is also worthy of note: unlike the area of towpath immediately to the north and west of the Lock, the brown coloured land between the eastern end of the Lock and the start of the new road is very narrow and seemingly the same width as the new road itself. – namely 6 feet.
12.2 Accordingly, whilst these documents provide some support for the Respondents’ contention that the Disputed Land formed part of the towpath, there are ambiguities present. First, the appearance of the area on the plan and secondly, the distinction between the description “City land” and “Thames Towing Path”. Taking the document and plan together, they do not in my judgment establish that the area in question was (in 1842) regarded as being owned by the City of London. To this extent, they are consistent with the 1832 map I have referred to above.
13. 1861: Allotment Award
This records the widening of the New Road to “Lock Bridge Road” between A and B on the map. There is no reference to the Towing path in this document: nor to the Ferry, and the suggestion is that the land alleged to be the towpath is known as “Lock Bridge Road”. In later years, of course, the road to the west of Ferry Lane became known as “Towpath”. In my view, this document does not provide any assistance in deciding whether the Disputed Land is in the Respondent’s ownership.
14. Minutes of 1st May 1863 and 7th August 1863
These derive from the Thames Conservancy archives and contains the following records: “That permission be given to work a Horseboat below Shepperton Lock to cross the river opposite the new road from Shepperton the working of the said boat to be under the supervision of the lock-keeper; and on condition that the horses employed in towing be taken across at a charge not exceeding 2d per head…and that the Towing Path be adapted by the Conservators for the……..” (May) and “The solicitor attends Thames Conservators and it is recommended he write to Mr Lindsay informing him that it is not intended to give him any right of Ferry at Shepperton Lock, but that Thames Conservators will give him a licence, revocable at pleasure, to embark and disembark on their towing path at £1 per year” (August) These items tie in with the known history, namely that the Church ferry was gradually replaced by the lockkeeper poaching trade upstream from the Church Ferry. The reference to the Towing path in each case could relate to the Weybridge side of the ferry – there is nothing which specifies that it refers to the Shepperton side. It may also be noted that the ferry is not stated to start on the towing path, but “opposite the new road from Shepperton”, and that the boat is to be kept on the Middlesex side of the river, which may suggest that it was not owned by the Thames Conservators. These minutes – apart from identifying the commencement date of the Weybridge ferry – do not assist greatly in establishing whether the Disputed Land was owned by the Respondents’ predecessors in title.
15. Map dated 8th November 1863
15.1 This plan derives from the Thames Conservancy archives, and relates to an application by Mr Lindsay (the owner of the Ferry) to rent some unoccupied space. The Respondent relies on it because the words “Towing Path” are written on the north bank of the river Thames bank at a point below the Lock, more or less where the western point of Plot 79 (see above) reaches the river. The Respondent contends that the words are apt to describe all the north bank of the river up to the junction with Ferry Lane. Is this contention justified? Does it show the area as part of the Towing Path? The same colour is used, but the verbal description does not extend past the Lock.
15.2 It seems to me that this plan is ambiguous at best. The only area which can confidently be said to be described as Towing Path is the area up to the Lock, and it is common ground that this was part of the Towpath (and some of this land is now registered in the name of the Respondent). Indeed, the public road which now runs past the Lock and westwards is to this day known as “Towpath”. This road is frequently separated from the river bank, and may be as much as 100 metres from the water. Clearly, the mere designation of the road as "Towpath" does not prove that it is subject to towing rights. This map is in my view of little assistance in deciding whether the Disputed Land belongs to the Respondents.
16. 1894 – Thames Conservators’ Minutes re Trellis
These record that Dunton & Co agreed to move back a trellis which projected over the Towpath. No indication is given as to precisely where this is: and of course it is common ground that there is a towpath west of the Lock. The Thames Conservators recommended that Duntons be allowed to retain the platform which encroaches on the towpath. The platform – the entrance to the Bungalow – is marked. However, this may actually be within the Respondents’ land – compare the filed plan of SY657862. This item is ambiguous.
17. June 1898 - The plan of the New Lock [MSOffice2]
As I have already explained, the original lock was reconstructed around the beginning of the 20th Century. Remarkably, no records or specifications relating to the works have been produced. All that seems to remain is a plan dated June 1898 which shows the proposed works. The plan is, naturally, focused on the new lock itself, showing views of the proposed lock in both plan and section form. However, insofar as the plan shows the Disputed Land, it is not wholly clear, in the sense that it shows a number of parallel lines which may or may not indicate new embankments or other works. Interestingly, it does include an area marked “Towing Path” but this is identified to the west of the new lock – no such words appear anywhere downstream of the lock. The Towing Path on the Weybridge side of the river is also marked. It is difficult to draw any firm conclusions from this plan with regard to the ownership of the Disputed Land.
18. 1899 – Minutes
Duntons applied for permission to affix a Notice board to railings above Weybridge Ferry. There is no clear evidence linking this to the Shepperton side – it could equally apply to the other side of the river. I did see some photographs of the position at around the turn of the last century. There are wooden rails along the southern side of the roadway on the Shepperton side, and there is some wooden structure on the towpath on the Weybridge side adjacent to the ferry landing. I do not consider that I have sufficient evidence before me to make any findings as to where, in 1899, the Notice Board stood, whether on the Shepperton or the Weybridge side. [o3]
19. 1900 – Minutes re Steps
Duntons asked the Thames Conservators for permission to place steps in the bank between the boatshed and the Lock. These are almost certainly the steps which can be seen in the Photograph at page 15 of the exhibits to Mr Lynn Lewis’s witness statement. The Respondents contend that this request recognises that the bank belonged to the Thames Conservators. The Applicant contends that the permission was only required for the section of the steps that were actually placed in the river. It does appear from the photograph that part of the structure extends into the river, at least beyond the embankment. It is possible that the licence relates to that part of the step that lies in the water. It is more probable, I think, that the parties, at this moment at least, considered that the Bank belonged to the Respondent. That does not, of course, necessarily indicate that the bank formed part of the towpath.
20. 1910 – Gate
This records permission given by the Thames Conservators to Mr Dunton to place a gate “in front of his property at Shepperton”. However, it is not clear which part of his property this relates to and, of course, it is common ground that the Thames Conservators owned land in front of the westerly boathouse.
21. 1925 – Permission for Cable to be laid
This minute dated 25th April 1925 records that the Thames Conservators gave the Woking Electric Supply Company permission to lay a cable under the towpath “between Ferry Lane, Shepperton and Dockett Eddy Lane”. Of course, at least part of the public highway between Ferry Lane and Dockett Eddy Lane is currently known a “Towpath” and may well have been known by the same name in 1925. This minute shows that the electricity company, and the Thames Conservators, believed that the Thames Conservators owned the “towpath”. To that extent, it is of some relevance. Today, of course, the public highway is regarded as being vested in the Highways Authority, including the road known as “Towpath”. [o4]
22. 1928 – Lease to Long and Batty
Messrs Long and Batty operated the Duntons business at this time (they were relatives of the original Dunton) and took a lease of the ferry and associated premises from the landowner. The description of the field included in the lease refers to “frontage to the Towing Path at the West Side”. On the plan, there is a frontage of 105 feet on the West side (ie at some distance from the Disputed Land) and it is common ground that it adjoins the Thames Conservators’ land. By contrast, the field is said to be “bounded on the South and West side by waste land the property of the Thames Conservancy”. This draws a clear distinction between the Towing Path and the waste land – which recalls the same distinction drawn in the 1842 Inclosure Award - which may be potentially significant. The description of the ferry is as follows:
“thirdly the right of conveying passengers carriages cattle and goods whatsoever over the said River Thames at that point where the New Road commonly known as the Lock Road abuts and terminates on the bank of the said River Thames in a direct line South to the Surrey side of the said River Thames abutting on the Public Highway or towing path leading to the village of Weybridge including the right to use the foreshore within the Manor of Shepperton..”
This is not, of course, a document to which the Thames Conservators were party. It may be noted, however, that whereas the Weybridge end of the ferry is said to terminate on the “Public Highway or towing path”, the Shepperton end terminates where “the New Road commonly known as the Lock Road abuts..”. This may lend some support to the claim that the Slipway forms part of the public highway, but it is not consistent with the parties considering that the towpath extended as far as the ferry on the Shepperton side.
23. 1935 – Statement of Facts for arbitration
It appears that there was a dispute between the operator of the Weybridge Ferry – Mr Wilfred Meirion Davy, the father of the Mr Davy whose evidence I have referred to – and the Thames Conservators, with regard to compensation. In the Statement of Facts prepared by the ferry operator, it is stated in terms that “The owners [Mr Davy’s lessor] also own the landing stage of the said ferry known as the Weybridge Ferry on the Middlesex side.”
24. Assignment of Lease 26th September 1936– Long to Davy
The 1928 Lease was assigned to Mr Wilfred Meirion Davy. The description of the parcels is the same as in the Lease itself.
25. 1938 – Permission to lay a slipway
This may be the key to the adverse possession claim. If the Applicant has always paid a fee for the part of the slipway that is not within the river, it is clear that the occupation of the slipway can never have been adverse. It is a question of construing the document in order to ascertain whether permission was given for the whole slipway, or merely the part which lies in the river. In my view, the proper meaning of the Licence is that only the part of the slipway that enters the Thames is covered by it. The licence to Dunton and Co is to “place a slipway extending 30 feet into the river off their boathouse at Shepperton, as shown on the plan”. The plan shows no dimensions for the “iron rails on concrete base” or indeed any part of the slipway situated on the bank of the river: dimensions are only given for that part of the slipway that lies in the water, namely the 30 foot length already referred to. My reading of this document is that the licence was only intended to relate to the part of the structure within the river.
26. 1939 – Settlement of the Dispute
By an Agreement dated 18th November 1939, and made between the Trustees of the Lindsay Estates (the owners of the ferry)(1), Mr W.M.Davy (2) and the Thames Conservators (3), the arbitration between the parties was compromised. The agreement recites that the Lindsay Estates is the owner of the Weybridge Ferry. No specific reference is made to ownership of the landing stage on the Shepperton bank of the river, but there is no rebuttal of the claim made in the Statement of Facts referred to above.
27. 1947 – Memorandum by George E. Walker
27.1 This document was prepared “by the Conservators with a view to assisting representatives attending the Conference to be held …..in order to consider the future maintenance, repair, upkeep and other relevant matters concerning the towing paths along the river Thames from Teddington to Cricklade within the Conservators’ jurisdiction.” Mr Walker was the Secretary to the Conservators and (as appears from the correspondence I shall refer to below) a Solicitor. The material parts of the document begins in this way:
27.2 Appendix A of the 1947 Memorandum gives “PARTICULARS OF TOWPATHS NOW OWNED BY THE CONSERVATORS” and also of those leased by the Conservators. Under the entry for Shepperton, the following words appear: ”From above Dunton’s Ferry to above Shepperton Lock (used as public road)” and a dimension of 790 feet is given. Appendix B gives details of ferries, including privately-owned ferries. This latter category includes the Weybridge Ferry.
It is accepted by the Respondent that the dimension of 790 feet exactly coincides with the extent of its registered title, terminating on the eastern boundary at the Fence – that is, where it adjoins the Disputed Land. In other words, it entirely excludes the area comprised within the Disputed Land.
27.3 Perhaps unsurprisingly, the parties adopt very different positions with regard to this document. The Applicant relies on the fact that the list of Towing Paths either owned or leased by the Conservators excludes the Disputed Land. This, it contends, demonstrates that the Respondent’s predecessor in title did not – in 1947 at least – consider that it owned the land. The Respondent points out that the document was prepared in 1947, shortly after the end of the war, and the records will have been disturbed by the war. It also points to the words of the document – “The whole subject is extremely involved and singularly lacking in definition…” – as indicating that the Thames Conservators even in 1947 were uncertain as to the extent of their land holdings. Furthermore, this Memorandum is designed as a briefing paper and was not intended to have any legal effect. Accordingly, I am invited to discount it.
27.4 There is some force in the Respondent’s submissions on this document but I am not persuaded by them. The document does not, on my reading, suggest any uncertainty on the part of the Thames Conservators with regard to the extent of the towpaths in their ownership or control. The reference to the subject being “lacking in definition” refers, I think, to the historical origin of the towpaths, and the various classes of rights referred to elsewhere in the paper. The actual identification of the towpaths is clear and precise and no doubt is expressed on this score. The total mileage of the towpaths is given to the nearest ¼ mile, and the descriptions contained in Appendix A are equally precise. By way of example, the descriptions are precise enough to distinguish between “alongside Molesey Lock”, “above and below Bray Lock” and “above Shepperton Lock”. The Memorandum, and the list of Thames Conservators’ towpaths, has all the appearance of a carefully considered document, which must presumably have been based on the archives and records of the Thames Conservators available at that time and on the understanding of the officials of the organisation. The confidence with which the towpaths are identified is not qualified by any reservations concerning the lack of records or problems caused by wartime disruption. Mr Walker, the Secretary, and those charged with the preparation of this document, were specifically directing their minds to the issue of towpath ownership, and clearly concluded that the Disputed Land was not included. The Thames Conservators were the immediate successors to the City of London, which built the first lock, and had itself been responsible for the construction of the new lock in 1899. It seems to me that the Thames Conservators in 1947 were in a better position to know whether the Disputed Land was in their ownership than is the Respondent some 60 years later. The Memorandum does not of course conclude the issue in favour of the Applicant, but I do regard it as an important document which must be given due weight when considering the totality of the historical material.
28. Transfer dated 7th September 1955
The Ferry and associated land was transferred to Davy at this time. There is no specific mention of the slipway, although there is an express exclusion of the soil on the Weybridge side. The Applicant has referred me to paragraph 894 in the Ferries volume of Halsbury’s Laws (4th Ed), which suggests that the soil of the landing place is automatically included in a conveyance of a ferry. This may be so, but it is curious that the Disputed Land was not expressly included, particularly since the ownership of the landing stage was expressly asserted as long ago as 1935. It may suggest some doubt as to the ownership of the land. Following this Transfer, the land comprised therein was registered under Title No SY635960.
29. Photographic and other material
29.1 There are numerous photographs of the Disputed Land, dating back as far as 1897, which are itemised in Mr Lynn Lewis’s witness statement at paragraph 11. These consistently show the Disputed Land – particularly the Bank – as crowded with punts or other vessels moored there. They also show the steps in the bank below the Duntons Café (to the west of Ferry Lane) and the presence of wooden rails at the top of the bank and separating it from the roadway. My impression from these photographs is that, certainly by 1897, there was no use of the Disputed Land as a towpath. It would have been practically impossible to use it for this purpose in view of the various obstructions. I may add that Mr Lewis, in his statement, has given an explanation of the methods of towing vessels on the river which was not, as I understood it, challenged (although some of his conclusions were).
29.2 The Applicant relies on two etchings, that of J.C.Varrall published between 1813 and 1832, and that of W.R.Wollen dated 1885. Of course, such material comes with a health warning: they are not photographs and some artistic licence must be expected. Mr Lynn Lewis makes various points about these illustrations (see paragraphs 152 to 155 of his Witness Statement). In particular, the Varrall etching shows no signs of a towpath on the Shepperton bank, and indeed the fact that barges are lying up next to the D’Oyly Carte Island (downstream of the Lock) supports the theory that the Shepperton bank was not used for this purpose. In the Wollen drawing, the appearance of the bank on the Lock island is quite different from that of the Shepperton bank, which does not appear to be in use as a towpath.
29.3 Thacker’s “Thames Highway”. I have already referred to this work, which is also relied on by the Respondent (see paragraph 10.1 above). It seems to be common ground between the parties that the book – published in 1914 – is a reliable history of the Thames. Volume II is entitled “Locks and Weirs” and the author clearly has a specialised knowledge of the subject, and has conducted direct research in the sense of interviewing local river folk (including the original Mr Dunton). At page 417 he writes as follows:
“The modern towpath touches Shepperton only from the lock upwards.”
. No doubt a writer with extensive knowledge of the river would be aware that the words “from the lock upwards” has a specific meaning, namely that there was no part of the towpath below (ie on the Ferry Lane side) the lock. This is, of course, consistent with the Applicant’s case
30. Copy letter Duntons to Thames Conservancy dated 19th August 1957
On this day, Duntons wrote to the Thames Conservators stating that “We propose to repair the concrete step, approximately 50 ft long, between our slipway and the lock cut wall.” This elicited a reply from Mr Walker, the Secretary and Solicitor to the Thames Conservancy (and author of the 1947 Memorandum) as follows: “…I would inform you that there will be no objection..to your carrying out protective works to your frontage at Shepperton..”. At most, this letter indicates that at this time the Thames Conservators believed that Duntons were the riparian owners of the land between the slipway and the lock cut, which would be consistent of course with the 1947 Memorandum.
31.1 Envelope stamped 9th October 1957
This item is an envelope addressed to Duntons with the following words written in manuscript: “This should refer only to the TC dispute over land along the ..and the Lock Cut to our moorings disputed in part”. This indicates that there was already some dispute with the Thames Conservators with regard to the land boundary, which provides an explanation of what followed.
31.2 Letter to Duntons from Mr Walker dated 3rd February 1958
The letter is headed “Storage of Vessels – Ferry Works” and acknowledges receipt of Duntons’ letter dated 1st February. This states that the Conservators may be sympathetic to Duntons’ proposal and “I am of opinion that this is bound up with the question I have raised in my letter to you of the 25th November last, regarding which you have consulted your solicitors.” This suggests that the boundary issue was being debated between the parties at this stage.
31.3 File copy letter dated 16th March 1958
This is a copy of a letter sent by Duntons to their solicitors Sidney Redfern & Co, enclosing a copy of a letter sent by the Thames Conservators. It includes the following passage: “We observe that the only place where the boundary is pegged is North of the Tow Path Road between the hedge outside “The Chestnuts”. This peg is some 2ft East of the T.C iron marker in “The Chestnuts” hedge, which presumably shows the correct position of the N.E corner of the TC land.” Clearly, this indicates that there was then in existence some sort of boundary marker at the limit of the Thames Conservators’ land. The dwelling known as “The Chestnuts” is still in existence. It is shown on some of the earlier plans as “The Bungalow” and I believe it is currently known as “Swift’s Lodge” (partly visible in the Respondent’s photograph No.4). It may be noted that, if the Fence is treated as the boundary with the Respondent’s land, a notional straight line continued northwards would bisect the front boundary of the dwelling-house.
31.4 Letter Stanley Redfern to Duntons 17th March 1958
The solicitors acknowledge receipt of the letter at 29.3, and continue: “..we are writing to the Secretary on the question of the boundary…”. It is therefore quite apparent that the issue of the boundary between the predecessors in title of both the Applicant and the Respondent was being specifically discussed between them and that solicitors were involved.
31.5 Letter Stanley Redfern to Duntons 17th July 1958
This includes the statement “We have heard from the Secretary to the Thames Conservancy suggesting a meeting on the site on Monday afternoon … with a view to settling the question of the boundary line.” This is endorsed with the following handwritten note: “Phoned Reddington & told him not worth bothering about boundary & therefore no point in meeting – accept where T.C.” It would appear from this letter that Duntons were prepared to accept the line of the disputed boundary as contended for by the Thames Conservancy.
31.6 Letter from Sidney Redfern to Duntons - 30th August 1958 [MSOffice5]
The solicitors write: “We send herewith a plan which we have received from the Thames Conservancy showing the revised agreed boundaries between your land and the conservator’s property. This plan should be carefully preserved by you.” The enclosed plan (see page 65 of Vol 1) shows the area in question, and on it a straight line has been drawn between two points A and B. B is situated to the north of the road, along the frontage of “The Chestnuts”, and A is situated to the south close to the river’s edge. This line is in more or less the same position as the Fence. I should point out that at an early stage in this dispute the Respondent was not prepared to accept that this plan was in fact the plan referred to in the letter. However, it does now accept this, and if it had proved necessary I would have found as a fact that the plan at page 65 of Volume 1 is indeed the plan referred to in this letter.
31.7 Copy letter 1st September 1958
This is a copy of a letter from Duntons to their solicitors, acknowledging receipt of the “Thames Conservancy plan showing agreed boundaries”.
31.8 Copy letter from Thames Conservancy to Duntons 27th January 1959
This records Mr Walker’s understanding that a 30 ft. launch has been launched off the Conservators’ property below Shepperton Lock without permission. It continues: “You will remember that the boundary betwn your and the Conservrs’ properties were agreed with yr Solrs only a few months ago, the line being approx opposite the fourth pile downstream from the Lk (posn “A” shewn on the plan furnished to yr Solrs). The Agreemt regarding the boundary line also determined the limits of the moorg rights appurtenant to the respective pieces of land as btwn the conservrs and yrselves, and I shall be glad if, in order to avoid further difficulties arising with respect thereto, you will issue suitable instns to yr employes to keep any vessels moored off yr frontage within yr boundary.”
31.9 Copy letter Duntons to Thames Conservancy 4th February 1959
This states as follows: “We do not agree that the land boundary line also determines the limits of the mooring and that it has any bearing on mooring rights we have exercised for, at least and to our own knowledge, for over twenty five years.”.
31.10 Copy Letter Sidney Redfern to Duntons dated 3rd April 1959
The solicitors report to Duntons that when dealing with the demarcation of the land boundary there was no discussion of mooring rights.
31.11 Letter Sidney Redfern to Duntons dated 1st May 1959
They report to Duntons that: “We have heard from the Solicitor to the Thames Conservancy that it is proposed to erect a barrier which will be an extension of the Line A to B on the plan submitted to and approved by you some little time ago with the Conservators.”
I shall consider the legal implications of this material later in this Decision.
EVENTS AFTER 1959
32. The Highway re-alignment
On 12th September 1963, Sunbury-on-Thames Urban District Council wrote to Duntons, outlining a proposed Highway improvement at the junction of Ferry Lane and Towpath, Shepperton. It is apparent from the plan enclosed with the correspondence that the proposal was to engineer a curve in the sharp right angle bend that then existed at this junction. The result would be to remove some of Duntons’ land on the north-west side of the junction – ie on the opposite side of the road to the Disputed Land. At the same time it was proposed to install an Armco guard rail along the southern edge of the road. This still exists today. The plan also indicates that the line of the carriageway was changed at this time, so as to remove the area which had previously been within the right angle formed by the two roads. This area is not being claimed by the Applicant although it was previously included in its application for possessory title made in 1998. On any footing, this land remains subject to highway rights, and indeed it is currently used to place street furniture such as the lamp standard.
33. Transfer Scheme dated 7th September 1989 (“the Scheme”)
Under the Water Act 1989, the assets and functions of the Thames Water Authority were transferred to the NRA, the predecessor body to the Environment Agency. The Thames Water Authority itself was the successor to the Thames Conservators. The Scheme effected the transfer of assets to the successor body. Accordingly, if the Disputed Land was already vested in the Thames Water Authority, it will have passed to the NRA by virtue of the Scheme. The document was not the subject of disclosure by the Respondent until a matter of days before the start of the hearing, and only then in response to a direct request from the Applicant to inspect it. It is surprising to me that the Respondent did not disclose the document at an earlier stage, for this reason. Although there is no specific reference in the Scheme to the Disputed Land, the schedule of TWA’s land holdings transferred under the Scheme does include the Lock itself and the associated land (as far east as the Fence) as registered under the Respondent’s Title No SY657862. Although the Scheme contains the usual sweep-up clause, effecting the transfer of all assets whether specifically identified or not, it is obviously significant that the Thames Water Authority did not at that stage expressly include the Disputed Land in the Scheme. This is consistent with the conduct of the Thames Conservators from at least 1947 onwards, in that the Disputed Land was treated as being outside its ownership. The document does, it appears to me, damage the Respondent’s case on ownership and is manifestly a disclosable document for that reason.
34. As I said at the outset of this review of the documentary evidence, it is necessary to take an overview of all the available material in deciding whether the Disputed Land, or any part of it, is vested in the Respondent, on the basis that it is part of a towpath constructed under the 1810 Act. This is not an easy question to answer. In my judgment, however, an overview of this material does not establish, on the balance of probabilities, that the Disputed Land or any part of it was incorporated into the towpath constructed as part of the works relating to Shepperton Lock. In reaching this conclusion I have regard to the all the factors referred to above and to following factors in particular (but in no particular order)
34.1 There is no one document or other writing which unequivocally records the construction or acquisition of the towpath.
34.2 Although there are some indications in the documents that on occasions the Disputed Land was described or regarded as “towpath”, these documents do not indicate whether the “towpath” was constructed or owned by the City of London.
34.3 There are other documents and materials (e.g the etchings) which suggest the contrary. There is evidence from Mrs Coleman that to her recollection (which went back to the early part of the 20th Century) she could not recall towing taking place other than on the Weybridge Bank.
34.4 The Thacker history refers to the modern towpath as being upstream of Shepperton Lock.
34.5 In 1935 (in connection with the compensation arbitration) the Applicant’s predecessor in title unequivocally asserted ownership of the “landing stage” on the Shepperton side of the ferry without apparent demur from the Thames Conservators.
34.6 Consistently between 1947 and 1998, the Thames Conservators and their successors disclaimed ownership of the Disputed Land in the most emphatic possible way, even to the extent of conceding ownership to Duntons in 1959.
34.7 Since the towpath moves from the Shepperton side to the Weybridge side at Shepperton, it seems unlikely that the towpath would have existed downstream of the Lock prior to its construction. Indeed, the 1832 map confirms this: the old towpath runs around the south side of Hamhaugh Point. It seems unlikely, as a matter of inherent probability, that a new towpath would have been constructed downstream of the lock, since vessels using the Lock would have to cross the river at this point, not travel downstream on the Shepperton side.
34.8 Even if part of the Disputed Land was added by the Thames Conservators at the time of lock reconstruction in 1899 – and the evidence for this proposition is not at all clear – this would not in itself create a towpath. If a towpath already existed, it would be incorporated into it, but the issue is whether the towpath had already come into being under the 1810 Act.
35. Balancing all these indications and sometimes conflicting pieces of evidence, I have reached the conclusion that the Respondent cannot show on the balance of probabilities that it has title to the Disputed Land or to any part of it.
THE 1810 ACT
36. If I am wrong about this, and the Disputed Land was incorporated into the towpath constructed by the City of London, I must also consider whether the Respondent can show that ownership vests in it under the terms of the 1810 Act. As I have stated, the Respondent’s case is based on the provisions of this Private Act, which was passed in order to facilitate the construction of four new locks on the River Thames, including Shepperton Lock. The relevant provisions of this Act are as follows:
“(III) And it be further enacted, That it shall be lawful for the said Mayor, Aldermen, and Commons, in Common Council assembled, to … make, set out, and appoint such Towing Paths, Banks, Roads and Ways, convenient for towing, baling, or drawing of Barges, Boats, and other Vessels, passing and through or out of the said Locks by Men, Horses, or otherwise as they the said Mayor, Aldermen and Commons, in Common Council assembled shall think convenient, they the said Mayor Aldermen and Commons, in Common Council assembled … doing as little Damage as may be in the Execution of the several Powers to them hereby granted, and making Satisfaction to the Owners or Proprietors of, and or Persons, Bodies Politic, Corporate, or collegiate, interested in the Lands which shall be used or prejudiced, for all Damages which may be by them sustained in or by the Execution of all or any of the Powers of this Act;
(V) Provided always and be it further enacted, That nothing herein contained shall extend or be deemed to extend to empower the said Mayor, Alderman etc… to enter on, or make use of any Lands, Tenements, or Hereditaments, for the Purpose of making any Towing Path or Towing Paths or any other Purpose whatsoever under the Authority of this Act, except for the Purpose of making Surveys, taking Levels and laying Materials, as hereinbefore mentioned, without the Consent of the Persons entitled thereto first had and obtained in Writing for that Purpose.
(VII) And be it further enacted, That the Locks, Buildings, Towing Paths, Ways, Sluices, Drains, Matters and Things, which the said Mayor etc … shall make, build, provide, or establish, by virtue of and in pursuance of this Act, shall be and the same are hereby vested in the said Mayor and Commonalty and Citizens of the City of London, and their Successors; and they and their Successors are hereby authorised and empowered to bring any Action or Actions, and to refer Bills of Indictment against any Person or Persons who shall cut, damage, or injure, or cause to be cut, damaged, or injured, any of the Works which the said Mayor etc … have already … made, erected, established, amended, or repaired…”
37. The Respondent’s case is straightforward. It asserts that the Disputed Land was incorporated into a new Towing Path, constructed under the provisions of the 1810 Act, as part and parcel of the construction of the new Shepperton Lock. It relies on the express words of section (VII) of the Act, which provides that “Towing Paths… shall be and the same are hereby vested in the said Mayor and Commonalty and Citizens of the City of London…”. The Respondent contends, not surprisingly, that the word “vested” means that the ownership of any land incorporated into a Towing Path vests in the City of London. Provided it can establish that the Disputed Land was so incorporated, it follows, on the Respondent’s case, that ownership passes pursuant to section (VII) of the 1810 Act.
38. The Applicant, however, takes a different view. Essentially, it submits that the word “vested” does not mean that ownership of the land passes: merely that the City of London becomes entitled to deal with the land in such a way so as to protect its interests. Mr Stewart-Smith draws attention to the remaining provisions of section (VII) which give the City of London power to bring proceedings to recover damages for interference with the statutory works. If, according to him, the ownership in the soil of the Towing Paths had vested under section (VII) there would be absolutely no need to provide any additional power in the City to bring proceedings relating to that land. Furthermore, the Applicant relies on authority to support this point. First, I was referred to Stracey v Nelson (1844) 12 M&W 535. This case related to the Sewers Act 1833. Section 47 of this Act provides as follows:-
“… that the property of and in the lands, tenements, hereditaments, buildings, erections, works, and other things, which shall have been or shall hereafter be purchased, obtained, erected, constructed, and made by or by the order of, or which are or shall be within or under the view, cognizance, or management of, any Commissioners of Sewers, … shall be and the same are hereby vested in the Commissioners of Sewers within or under whose view, cognizance, or management such land, tenements etc … and things shall respectively be, who are hereby empowered to bring or cause to be brought any action or actions, or to prefer or order the preferring of any bill or bills of indictments against any persons who shall dig up, break, or pull down, damage, destroy … any such lands …”.
39. In that case, it was held that the words “vest” did not in fact confer ownership in the soil of the land subject to the Commissioners’ works. The purpose of the Act, according to the Court, was to ensure that the Commissioners had sufficient control over the works which they had created. It was not intended to transfer ownership, since there were no provisions in the Act for the payment of compensation and therefore such a change of ownership would in effect be expropriation. This case was followed subsequently, including in the case of Nesbitt v Mablethorpe Urban Council [1918] 2 KB 2.
40. Although the wording of the 1810 Act and the Sewers Act 1833 are not identical, it does seem to me that the principle underlying the Stracey decision is applicable. It does not seem likely that the 1810 Act was intended to effect the compulsory purchase of towpath land without some specific power in that regard. Furthermore, the fact that section (VII) of the 1810 Act grants a specific right to bring proceedings in relation to the vested land, suggests that the word “vest” falls short of absolute and outright ownership. For these reasons, therefore, even if the Respondent had been able to show that the Disputed Land, or any part of it, had been part of the original towpath constructed pursuant to the 1810 Act, I would not have held that the absolute and outright ownership in that land had passed to the Respondent’s predecessors in title. However, this is in a sense an academic issue, since I have already determined that there is no sufficient evidence that the Disputed Land was used to construct a towpath under the provisions of the 1810 Act.
THE BOUNDARY AGREEMENT – CONCLUSIONS
41. The Applicant submits that the exchange of correspondence which I have set out at paragraph 31 above evidences a concluded boundary agreement, whereby title to the Disputed Land was conferred on the Applicants. It seems to me undeniable that the parties did intend to reach a binding agreement with regard to the boundary between the Thames Conservators’ land and the land occupied by Duntons. The language used in the correspondence, the identification of the precise line on a plan, and the subsequent conduct of the parties, can give rise to no other interpretation. However, the formalities that are required for the transfer of land have not been observed. Conveyance by correspondence is ineffective. Consequently, the Applicant is obliged to rely on the doctrine that boundary agreements are presumed not to involve any disposition of land and therefore require no formality. The policy reason underlying this doctrine is clear: it is manifestly in the public interest to give effect to a compromise of a boundary dispute even if the technicalities have not been followed. The Applicant relies on the Court of Appeal decision in Joyce v Rigoli [2004] EWCA Civ 79 (esp the judgment of Arden LJ at paras 28-34) which in turn applied the decision of Megarry J in Neilson v Poole.
42. However, I not persuaded that the concession made by the Thames Conservators in 1958 falls within the type of boundary agreement referred to in the authorities. A boundary agreement is exempt from the usual requirements of formality only because it is deemed simply to identify the existing legal boundary on the ground. It is assumed that it does not actually convey any land. This analysis can only work, it seems to me, if each party to the dispute actually owns the land up to the agreed boundary. All that the parties are doing is to identify on the ground the invisible legal boundary that divides their properties. If there is a doubt as to where that invisible line runs on the ground, the parties are simply resolving that doubt. In the present case, however, the Applicant is unable to demonstrate any paper title to the Disputed Land. When the “boundary agreement” was made, Duntons were doubtless in possession of the Disputed Land, but had no title to it. In the circumstances, I cannot see that the Thames Conservators by the agreement could confer any better title on Duntons. If the Applicant is suggesting that the agreement did have that effect, it would manifestly not fall into the category of boundary agreement that is exempt from the requirements of formality, since it would involve a transfer of ownership. It would be different if the agreement gave rise to an estoppel – preventing the Respondent from resiling from the agreement as to the boundary. However, a public body such as the Respondent (and its predecessor the Thames Conservators) cannot be estopped from asserting its title to land even if at an earlier stage it had mistakenly conceded title to another. The doctrine of legitimate expectation might conceivably apply, although there are considerable difficulties in the Applicant’s way. Such an argument failed on its facts in Rowland v The Environment Agency [2003] EWCA Civ 1885, although that case was concerned with public navigation rights and not with land ownership. In any event, this is not how the Applicant puts its case.
43. Accordingly, I do not consider that the dealings between the Thames Conservators and Duntons in 1958 constitute a boundary agreement by which the Respondent is bound. However, the fact of the agreement is significant for other reasons. First, it does I think provide an insight into the Thames Conservators’ own understanding of its land ownership at that time, which is consistent with the terms of the 1947 Memorandum. Secondly, as I explain in more detail when I come to consider the adverse possession claim, it has a bearing on the issue of animus possidendi. But it is not an enforceable boundary agreement
ADVERSE POSSESSION
44. The Applicant’s case is that for many years – well in excess of 12 years indeed – it and its predecessors in title have been in undisturbed physical possession of the Disputed Land with the requisite intention to possess. The Respondents deny that, as a matter of fact, there has been physical possession of the land, and contend that the acts relied on by the Applicant, even if proved, are insufficient to pass the threshold set out in J.A Pye (Oxford) Ltd v Graham [2003] 1 AC 41. The Respondent’s objection derives from its claim to be the absolute owner of the Disputed Land. I have of course held that it cannot establish title to the land. However, an objection has been made, and I am bound to consider whether the Applicant can make good its claim. [MSOffice6] As regards this section of the Decision, I shall first consider the evidence, and make the necessary findings of fact. Then I shall consider the legal issues arising out of those findings.
46. Mr Lewis is the director of all four companies of the Nauticalia Group, that has its head office at Ferry Point, Ferry Lane, Shepperton. As I have stated earlier, the Group includes the ownership of Duntons. Duntons has carried on the business of boat builders, repairers, boat hirers, chandlers, ferry operators, moorings and boat storage in Shepperton adjacent to the River Thames at Ferry Lane since its incorporation in 1961. George Robert Dunton himself acquired the business in the late 19th century – he is the grandfather of Mrs Coleman to whom I have already referred. Insofar as matters are within his own knowledge, Mr Lewis’s relevant evidence was as follows:-
46.1 In his negotiations in 1984 for the acquisition of Duntons, he was informed by the vendors that all of the Disputed Land belonged to that company, although it did not appear within its registered title. Furthermore there had never been any dispute or question raised by any other party with regard to the ownership of the Disputed Land until the Respondent claimed ownership of it in 1998.
46.2 The turfed embankment (i.e the Bank) was used as a wharf for the storage of boats, mooring, boat sales, the hire and boarding of boats and their provisioning.
46.3 The slipway had been used for launching and recovery of boats, repair of boats and as access to the ferry that Duntons and its predecessors have operated at the site since the 19th century.
46.4 Since the Nauticalia Group purchased Duntons in 1984 it has continued to have uninterrupted exclusive beneficial use and occupation of the Disputed Land and carried out the same functions as Duntons with the exception of the hiring of boats.
46.5 Since 1984 the Applicant has continued to maintain the Disputed Land and has added improvements for the benefits of its customers, without any consent from the Environment Agency or its predecessors. In particular
46.5.1 It upgraded the quality of the water and electricity supplies on the Bank. It built a second electricity and water supply cabinet on the slipway.
46.5.2 It improved the steps from the slipway to the embankment to give easier movement between the two for walkers using the ferry. It filled in with concrete the gaps that appeared in the hard edge of the turfed embankment.
46.5.3 It installed an extended, raised concrete section on the slipway to improve access to the ferry in times when the river level was high and a sloped ramp from the slipway to the embankment for the use of pushchairs and trolleys.
46.5.4 When able to replace the trolley that had been used for launching on the slipway rails with a more modern tractor, it removed the rails. It also put steel sheeting on the slipway below the water line.
46.6 It has continued to protect with fences and ropes the boundaries of the Disputed Land to keep its use exclusive to customers who pay for its services, and prospective customers. In particular the slipway is roped off from the road at the end of the business day. When the business was taken over in 1984 this activity was already taking place, using round lengths of scaffold tube placed in sockets in the ground. In the late 1980s these were replaced with new square sockets and new improved wooden posts were constructed. A single rope runs between the posts. At the lower end of the row of posts, an additional rope connects them to a post supporting the crash barrier at the edge of the bend of the road. It is the ferryman’s duty to put the ropes in place and this has taken place pretty much throughout the period since 1984. When the rope is in place it effectively prevents vehicular access to the slipway.
46.7 The Applicants have a sign on the slipway announcing the times of the ferry. At most periods since 1984 there has also been a sign or signs showing the charges for launching boats of various sizes and a leaflet box including details of mooring charges.
46.8 The western boundary of the Disputed Land is formed by the single rail fence to which I have already referred. Since 1984 it had a small swing gate at one end at the top of the Bank, closest to the road. The gate was there not to prevent access to the Disputed Land but to mark the boundary. Although the gate had been broken off, possibly within the last few years, it has since been replaced.
MR LINTON LEWIS
47. Mr Linton Lewis, Lynn Lewis’s son, has been active in the business since 1984. He confirmed the evidence given by his father with regard to being told by Mr Davy that the Disputed Land belonged to Duntons. He also fleshed out some of the activities which are carried out on the Disputed Land and have been carried out since 1984. These are as follows:-
47.1 Between 12 and 15 boats have been moored at the Bank at the same time throughout the Applicant’s occupation. Some are for sale and some belong to customers who pay up to £3,000 per year to moor them. They are generally kept nose-in to the Bank because there is not enough depth of water for them to lie alongside, but when the river is in flood ropes are sometimes brought across the embankment to attach them to pegs higher up, or even to the posts at the top of the embankment. During high water conditions the boats need regular checking and adjusting from the Bank, often late in the evening.
47.2 Mr Linton Lewis was responsible for roping off the slipway at the end of the day’s business. He confirmed that this has been carried out regularly since 1984 with very few lapses, caused by events such as a car crashing into the posts and breaking them off.
47.3 For most periods since 1984 the Applicant has kept a large vehicle or other heavy equipment on the slipway, both during and out of business hours. This would be a towing lorry, a crane, launching trolley or a tractor depending on the time of year and required usage. In practice, this would prevent any entry on to the slipway by vehicles.
47.4 The upper strip of the slipway, as far as the winch point, has been used on a daily basis for displaying the Applicant’s stock of smaller boats since about 1987.
47.5 For many years there was a sign on the slipway asking people carrying canoes and wishing to launch them, to drop payment into the shop.
47.6 A rubber tubular fender about four inches in diameter around the length of the Applicant’s moorings, including the cottages, on the upright edge to protect boats from rubbing against the concrete wall. This was fixed with heavy iron staples and chains to the top of the wall. The Applicant maintained these staples as necessary by making good any damage that appeared in the concrete wall.
47.7 The Applicant installed an additional pontoon, fixed with heavy hinges, to the riverbank below the Bank, and improved the concrete surface providing access to the ferry pontoon after the ferry was reopened.
47.8 Mr Lewis estimated that he launched and recovered about 500 boats each year from the slipway. It appears that Environment Agency boats also use this facility, and pay the Applicant for the service.
48. Both Mr Lynn and Mr Linton Lewis were cross-examined by Mr Jeffries on behalf of the Respondents. For entirely understandable reasons, there was little serious challenge to their evidence. Although some of the witnesses called by the Respondent – all of them employees – expressed a degree of scepticism as to the extent of the activities carried on by the Applicant, and also questioned whether the slipway was roped off in the manner suggested, none of these witnesses were really in a position to make good their scepticism. This was reflected in the cross-examination of the Lewises. Mr Lynn Lewis was challenged over the earlier application by the Applicant to be registered with a possessory title, which also took place in about 1998. I have seen the plan attached to his statutory declaration, and this includes a larger area than that for which registration is currently sought. Specifically, it includes a small triangle of land which seems to have formed part of the original highway, at the corner, before the Armco barrier was installed and the curve introduced. Indeed, there is some street furniture in this area, which must have been placed there by the Highways Authority. It also includes a sliver of land running along the eastern side of Ferry Lane adjacent to the Applicant’s other premises. Mr Lewis readily accepted that the Applicant did not and could not show title to this land. I do not think that this undermined Mr Lewis’s evidence in any way, albeit that this was suggested by the Respondent. Accordingly, the cross-examination was inevitably limited, and made no impression on either of the witnesses. I formed the view that both Mr Lewises were honest, truthful and accurate witnesses of fact, and I have no reason to doubt any of their evidence with regard to user of the Disputed Land since 1984. Mr Lewis in his witness statement give a critique of a number of documents, maps and photographs relating to the history of the site, and of course his evidence in this regard is essentially his own opinion. However, both he and his son were able to give direct evidence of user since 1984, and it is this evidence to which I am referring.
49. In addition to the “live” oral evidence, as I have said there were two witness statements from Mr Davy and Mrs Colman. These support the Applicant’s contention that Duntons have been using the Disputed Land, in more or less the same way as the Applicants do, since the 1920s or 1930s, quite possibly much earlier. There is a wealth of photographic evidence which has been provided by both parties in this case, and Mr Lewis (at paragraphs 10 to 13 of his Witness Statement) draws attention to some of these. It is quite plain from these photographs – the earliest of which dates from 1897 – that Duntons have continuously moored boats of varying descriptions from the Bank within the Disputed Land. Aerial photographs – believed to be taken in 1989 – have been produced. These show quite strikingly how the Disputed Land is, to all intents and purposes, occupied by the Applicant. The slipway itself is largely occupied by a Land Rover with a substantial trailer, presumably used for hauling boats out of the water. The Bank itself has no less than 9 boats moored nose-in, and a further boat alongside the Bank. It is even possible to discern that the colour of the grass on the Disputed Land is slightly different than the colour to the west of the Fence i.e. on the Respondent’s land. This reinforces the impression that the Disputed Land was in different ownership from that of the Environment Agency.
THE RESPONDENT’S EVIDENCE AS TO POSSESSION
50. Three witnesses were called by the Respondents, and one additional Witness Statement was relied upon. The witnesses were Mr Steve Kenneth Newman, who is the lock keeper at Shepperton, Mr Smith and Mr Christie, the Navigation Secretary of the Respondent. Mr Newman was able to give direct evidence of the Disputed Land. He had been employed by the Respondent since 1974. He was the relief lock keeper for ten years and subsequently appointed lock keeper. He lives at Lock Keeper’s House which overlooks the site of the land the subject of the application. He stated categorically in his witness statement that “I have never seen any commercial activity carried on on the strip of land referred to in paragraph 6(a) of the Applicant’s Statement of Case (i.e “the Bank”)”. He also said that the slipway was never, until recently, fenced off. In cross-examination, he accepted that Mr Lewis may be correct in stating that the slipway has been roped off since 1984 or 1985, and furthermore that he had no real interest in the matter until he was asked to make the Witness Statement. Given the weight of evidence, including the photographic evidence I have referred to, I think that Mr Newman must be mistaken in his recollection that there was no commercial activity on the Bank. It is quite apparent that boats have been moored there for many years if not for over a century. Furthermore, as I think Mr Newman accepted, he could not disagree with the evidence of Mr Lewis with regard to the fencing off of the slipway, since it was not really a matter which was of any concern to him at all until very recently. A Mr Godfrey Robert Smith also gave evidence for the Respondent. He has worked for the Environment Agency since 2000 as a Patrol Officer, is currently based at Shepperton Lock and has lived about one mile from the Lock since 1995. He also stated that he had never seen any commercial activity carried out on the Bank, although he occasionally saw someone from the Applicant mowing the grass. This is all contained in his Witness Statement. In cross-examination, however, he qualified this. He accepted that boats were moored at the Bank, but what he meant was that no actual work was conducted on the land. Although he also said that he could not recall the ropes at the top of the slipway being in place until recently, he was bound to accept that this was not something which he ever paid much attention to. The Respondent also relied on a Witness Statement of a Mr Waters, who was not called to give evidence, who has worked for the Respondent since about 1995 or 1996. He says that he is well acquainted with the Disputed Land. He also states that he has not seen any commercial activity carried out on the Bank. He says “I have never seen any apparatus or equipment belonging to the Applicant on the said strip of land.” Although Mr Christie has lived in the area for many years, he was not in a position to give any real evidence with regard to the Applicant’s use of the land, and that of its predecessors.
51.2.6 Maintaining the staples and rubber fender placed along the Bank, and making good any damage that appeared in the concrete wall.
51.2.7 Upgrading the quality of the water and electricity supplies on the Bank for the use of its customers. It built a second electricity and water supply cabinet on the slipway.
51.2.8 Improving the steps from the slipway to the embankment to give easier movement between the two for walkers using the ferry. It filled in with concrete the gaps that appeared in the hard edge of the turfed embankment.
51.2.9 It installed an extended, raised concrete section on the slipway to improve access to the ferry in times when the river level was high and a sloped ramp from the slipway to the embankment for the use of pushchairs and trolleys.
51.2.10Replacing the trolley that had been used for launching on the slipway rails with a more modern tractor, it removed the rails, and putting steel sheeting on the slipway below the water line.
52. Mr Lewis Senior and Junior were able to provide direct evidence of this user since 1984. However, that user is largely consistent with that referred to by Mr Davy in his Witness Statement, and to some extent that of the late Mrs Coleman. There is no reason to believe that Duntons has not always used the Disputed Land as its own – consistent with its ferry obligations and public rights – since the business began. Certainly, the photographs supplied by the Applicant, dating back to the very beginning of the last century, support this.
THE LEGAL TEST - POSSESSION
53. These are my findings as to the extent and nature of the user of the Disputed Land, certainly since 1984 and very probably going back to the early part of the last century. However, the Respondent contends that, even if this user is proved, it does not fulfil the requirements of adverse possession as spelt out in the authorities. It is common ground that a squatter claiming to have acquired a title by adverse possession must show both (a) factual possession of the land and also (b) a sufficient intention to possess that land or “animus possidendi”. With regard to the requirements of factual possession, it is impossible to improve on the definition given by Slade J (as he then was) in Powell v McFarlane (1977) 38 P & CR 452 at 470-71 in a passage expressly approved by the House of Lords in J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419 at 436:
“Factual possession signifies an appropriate degree of physical control. It must be single and [exclusive] possession, though there can be a single possession exercised by or on behalf of several person jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of that land at the same time. The question whether acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used and enjoyed…Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so.”
54. In challenging the quality of the possession relied on by the Applicant, the Respondent made the following points:
54.1 It is difficult for a squatter to claim possession of land in the absence of enclosure, since without enclosure it is not normally possible to be in control of the land to the exclusion of all others.
54.2 There has been no real enclosure of the Disputed Land. The Armco barrier was erected by the Highways Authority. The post and rope arrangement which sealed off the slipway at night did not secure complete enclosure. The small gate between the Fence and the road did not purport to exclude the public, since it was not locked.
54.3 It is no answer to the Applicant’s failure to enclose the Disputed Land in its entirety for it rely on the need to allow public access both to the ferry and to the other commercial activities carried on there. Simpson v Fergus (2003) 79 P & CR 398 (CA) was cited.
54.4 The placing of boats and equipment on parts of the land does not amount to sufficient possession. Such activities are similar to parking which was held to be insufficient to establish adverse possession in Central Midland Estates v Leicester Dyers (2003) 2 P & CR DG1.
54.5 The operation of a ferry from part of the land does not indicate that it is owned or possessed by the Applicant. The ferry must start and terminate from places where the public have access – Wisdom’s Law of Watercourses 5th ed. Pp 162-3; Hammerson v Dysart [1916] AC 57 at 75. The activities of the Applicant on the Disputed Land are attributable not to possession but to operation of a ferry from a landing place over which there is a public right of way.
54.6 The Respondent and its predecessors have licensed many of the activities of the Applicant. The slipway is permissive. Mooring takes place on the river, not the land.
54.7 It would be unlawful to obstruct the highway or the towpath, therefore it would have been a criminal offence to do that which the Applicant relies on as constituting factual possession.
55. These arguments fall into three main categories. First, it is alleged that there has been insufficient use of the land by the Applicant (and its predecessors) to amount to factual possession, particularly in the absence of any continuous physical enclosure of the Disputed Land. This is a question of fact. Secondly, it is alleged that the existence of public rights over the Disputed Land renders the possession either unlawful, or ambiguous. Thirdly, it is alleged that many of the activities of the Applicant (and Duntons before it) have been specifically authorised by the Respondent and its predecessors. I shall consider these arguments in turn.
HAS THERE BEEN SUFFICIENT USE OF THE DISPUTED LAND?
56. The key, as is so often the case with disputes arising out of claimed adverse possession, may be found in the words of Slade J in Powell v McFarlane which have been set out above and, in particular, this passage:
“The question whether acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used and enjoyed
In the present case, the Disputed Land consists (a) of a concrete slipway which runs from the bend in Ferry Lane to the water’s edge and (b) part of the river bank, which slopes at a significant angle from the highway down to the water. The photographs clearly illustrate these physical characteristics.
56.1 With regard to the Slipway, I have described the activities that take place on it. Apart from the ferry operation itself, it is used to pull boats out of the water and to re-launch them – perhaps as many as 500 per year. Large vehicles and machinery belonging to the Applicant are continuously parked or stationed on the surface, which in practical terms prevent any other vehicles from entering the land, and outside business hours the slipway is sealed off by the Applicant by means of a post and rope arrangement. Notices regarding the Applicant’s services have been placed on the slipway for many years. The upper part of the slipway has been used, again for many years, to display the Applicant’s stock of small boats.
56.2 With regard to the Bank, the user has been of a different nature. Boats have been moored in the river, tied to posts at various points and levels in the Bank, depending on the height of the water. The boats may belong to the Applicant and are for sale, or belong to members of the public who pay the Applicant up to £3000 per year as mooring fees. The Applicant has carried out maintenance and constructions works on the Bank and has maintained the rubber strip where the Bank meets the water which protect the boats moored there. The Bank is separated from the Respondent’s portion of river bank to the west by means of the Fence and the swing gate. The grass is mowed from time to time by the Applicant’s employees. In the north-eastern corner of the Bank the Applicant has installed water and electricity services for the use of customers.
57. In my judgment, the activities I have summarised above are more than sufficient to constitute factual possession of the Disputed Land. Having regard to the nature of the land, it would be difficult for the Applicant to do more to “possess” it. It certainly has every appearance of being incorporated into the Applicant’s business, even though it is not physically enclosed in a way which excludes the public, and the aerial photograph of 1989 suggests that this has been so for many years. Given the need for public access to the Ferry – which I consider below – it would not be possible to exclude the public in any event, at least during the hours of the ferry’s operation. I do not think that the Respondent’s analogy of parking is either relevant or helpful. In this case, the Applicant has carried out commercial activities, of one type or another, on the Disputed Land. Neither the Respondent, nor any other party, has been in possession of the Disputed Land. I have heard direct oral evidence which in my judgment establishes that the Applicant has had a sufficient degree of factual possession and control of the Disputed Land since 1984. I am prepared to find that this use has been continuous since at least the late 1950s, based on the various photographs which have been produced, on the evidence of Mrs Coleman and Mr Davy, and on the inferences to be drawn from the correspondence set out in paragraph 31 above. In all likelihood this use began many years prior to that time, but it is not necessary to make any findings in this regard.
THE EFFECT OF PUBLIC RIGHTS OVER THE DISPUTED LAND.
58. As I have said, the Respondent objects that the Applicant’s use of the Slipway is attributable not to possession, but to the operation of a ferry on a landing place over which there is a public right of way. I think the fallacy in this argument is that the use made by the Applicant of the Slipway is not limited to mere operation of the ferry. The other uses, even leaving aside the ferry, would amount to possession. Furthermore, as the case of Haigh v West [1893] 2 QB 19 (at p.31) demonstrates, it is possible to acquire a title by limitation to land even where that land is subject to public rights of way. I can see no conceptual difficulty with this at all, certainly where the land in question is greater in extent than the area subject to public rights. Even if it is assumed in this case that there is a public right of way from the end of Ferry Lane and as far as the ferry, that would not in my judgment prevent the Applicant from acquiring a title by limitation to the entire area of the Slipway but subject to these public rights (which are in any event overriding interests). By way of example, I cannot see that a squatter, who has been in adverse possession of a field for more than 12 years, is prevented from defeating the title of the paper owner merely because a public footpath happens to run across the field. The true analysis, I consider, is that the title vests in the squatter but subject to the same incumbrances as affected the previous owner including public rights. This approach is entirely consistent with the words of Slade J. in Powell v McFarlane which I set out below, in relation to animus possidendi, when he discusses the need for the squatter to exclude the whole world “so far as is reasonably practicable and so far as the processes of the law will allow.” It would be both impractical and unlawful to seek to exclude members of the public so long as they were simply exercising their right of way. Where the public has free access to land, it will of course make it more difficult for the squatter to establish a sufficient degree of possession. However, I do not think that cases such as London Borough of Bromley v Morritt LTL 21st June 1999 purport to lay down any general rule that title to land subject to public rights of way can never be acquired by limitation.
59. Furthermore, the Respondent objects that the Applicant, in order to show that it has been in sufficient possession of the Disputed Land, must rely on acts which would amount to obstruction of the highway or the towpath, which would amount to offences under Section 137 Highways Act 1980 or Section 108 Thames Conservancy Act 1932. I think this submission depends on the Respondent satisfying me that the Disputed Land forms part of the towpath and/or highway. For the reasons I have explained, I do not think that the towpath extends to the Disputed Land. It may well be that public rights of way do extend over the Disputed Land – certainly over the Slipway as far as the ferry - but of course the enclosure of the Slipway only takes effect after the ferry has closed for the night and does not therefore affect the exercise of the public rights. I do not therefore consider that there is anything in this point.
CONSENT TO THE APPLICANT’S ACTIVITIES
60. I have already analysed the Slipway Licence dated 1938, and in my judgment it only relates to that part of the Slipway that lies on or under the water. That part of the Slipway that is constructed on the river bank - running from the edge of the water as far as Ferry Lane - has been constructed and maintained without consent from the Thames Conservancy. The fact that the operation of the ferry was itself licensed by the Thames Conservancy and subsequently the Respondent has no bearing, in my view, on the Applicant's ability to establish adverse possession. All commercial activities which have an impact on river navigation and the safety of river users must necessarily be the subject of a licence. This licence does not relate to any commercial activities on land, however. To the extent that the operation of the ferry involves the possession of any part of the Slipway, it is outside the ambit of the licence. Accordingly, I do not think that there is anything in this point.
ANIMUS POSSIDENDI
61. Slade J, in Powell v McFarlane (at page 472), formulated the requirement as being an:
“intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow.”
Furthermore, the squatter must make his intention unequivocally clear to the world, including the paper owner – see Inglewood Investments v Baker [2003] 2 P & CR 319 (CA). In the instant case, of course, there was no complete enclosure of the land, excluding the whole world including the paper owner. Nor indeed were there any signs expressly indicating that this was private property. However, there is absolutely no doubt that Duntons had the requisite intention to possess, and expressly communicated that intention to the Respondent. In this latter respect I am referring to the exchange of correspondence in 1958 and 1959 which led to the “agreement” of the western boundary line. The subsequent correspondence concerning mooring rights reinforces this view. There is no doubt that the Davys regarded Duntons as the owner of the land at all times thereafter, and the Respondent’s predecessors in title expressly acknowledged that Duntons were entitled to the land to the east of the Fence: the plan submitted by the Thames Conservators makes this abundantly clear. Consistently with this belief, both Mr Lewises were informed, on the purchase of Duntons in 1984, that the Disputed Land belonged to Duntons. Following on from the correspondence in 1958, it appears that the Fence was erected (see Mr Davy’s statement), delimiting the boundary of the Disputed Land. At some point the swing gate was added. Mr Lewis said that the swing gate was not designed to keep people out – since he did not want to repel potential customers – but to indicate the line of the boundary. As already stated, the Slipway is roped off by the Applicant after business hours. In my judgment, not only did the Applicant and its predecessors in title have the requisite animus possidendi – at least since 1958 or 1959 – but this was manifested to the world at large. By openly using and occupying the Disputed Land as part of their commercial premises, charging customers for the right to moor boats at the Bank, and enclosing the land to the extent that I have indicated, I consider that the Applicant has more than satisfied the requirements as explained by Slade J in Powell v McFarlane.
CONCLUSIONS ON ADVERSE POSSESSION
62. For the reasons set out in the preceding paragraphs, in my judgment the Applicant is entitled to be registered with possessory title to the Disputed Land. It is very probable that the title of the paper owner of the Bank and Slipway - whoever that may be - was barred long before the Applicant purchased Duntons in 1984. I have decided that the Respondent is unable to show title to the Disputed Land. However, even if the Respondent did have title, I do not see that this would affect my decision. Of course, if the land is subject to any public rights – for towing, for example – these would not be affected by the change in title since they qualify as overriding interests.
SECTION 9(5) OF THE LAND REGISTRATION ACT 2002
63. Although it is not strictly necessary to deal with the additional ground raised by the Applicant, I shall mention it briefly. In summary, the Applicant contends that it is enough simply to be in possession of land, in order to be granted a possessory title to that land. The relevant section of the 2002 Act is Section 9(5)(a) which is in these terms:
“(5) A person may be registered with possessory title if the registrar is of the opinion - (a) that the person is in actual occupation of the land, or in receipt of the rents and profits of the land, by virtue of the estate…”
The Applicant draws attention to the different wording used in Schedule 6 paragraph 1(1), where the expression “adverse possession of the estate” is used, as opposed to “in actual occupation of the land”. Mr Stewart-Smith was not able to offer any conclusive construction of the words “by virtue of the estate” in Section 9(5)(a), however, and that introduces an element of ambiguity into the provision. However, the Applicant’s argument is that it is not necessary to establish that the paper owner’s title has become barred – merely that the applicant is in exclusive possession of the land and with a sufficient title to bring proceedings for trespass against an interloper. This is sufficient to qualify as “actual occupation of the land” within the meaning of the sub-section referred to. Furthermore, if the Respondent does not itself have title to the Disputed Land, it cannot object to the Applicant’s registration by raising a jus tertii – see Fowley Marine (Emsworth) Ltd v Gafford [1968] 2 QB 618 at 634C-G.
64. The Respondent contends that the squatter must be able to satisfy the registrar that the paper owner’s title has become barred before he can be registered with possessory title. This is certainly the conventional view. Fortunately, I do not need to decide this point. However, it appears to me that there may be a flaw in the Applicant’s argument. As far as I can see, Section 9(5) of the 2002 Act simply enables the registrar to register an applicant with possessory title – it is one of the permitted classes of title. However, it does not contain any procedure for applying for such a title. The new procedure for acquiring a title based on adverse possession is set out in Schedule 6, as applied by Section 97 of the 2002 Act. This governs all applications made after the commencement of the 2002 Act. Insofar as a person claims to have been in possession prior to the commencement of the Act, the transitional provisions in Schedule 12 paragraph 18 apply. However, these only benefit a person who has already barred the paper owner’s title under Section 75 of the 1925 Act. It seems to me, therefore, that Section 9(5)(a) probably does no more than permit the registrar to create a possessory title where, under Schedule 6, this is appropriate. The requirement to show adverse possession is therefore a necessary part of the application.
HIGHWAY RIGHTS
65. In its Statement of Case, the Respondent alleged that the Disputed Land formed part of the verge of the public highway. In the light of this, a direction was made that the Statements of Case should be served on the Highways Authority, Surrey County Council ("SCC"), to give it the opportunity of intervening in the proceedings so as to put forward arguments and evidence in support of the contention that the Disputed Land was part of the highway. In the event, SCC declined to participate in the proceedings. Despite the absence of SCC, however, the Respondent continued to maintain this position at the hearing.
66. No evidence was called on this point, over and above the documentary evidence to which I have already referred. There is no evidence directly in point. As far as I can tell, the only time that there was contact between Duntons and the Highways Authority was in 1963 when the bend at the end of Ferry Lane was reconfigured and the Armco barrier installed. For what it is worth, no highway rights over the Disputed Land were claimed at that time. I am not aware of any presumptions which affect the issue. Although of course there are certain presumptions relating to highways - for instance, that where a road is fenced, the highway rights are deemed to extend over the verge and as far as the fence – in this case the only historic fence was the rail fence parallel with the road and in approximately the position of the existing barrier. There were certainly no fences along the river's edge. Mr Jefferies suggested, I think, that the fence to fence or hedge to hedge presumption somehow applied to the river bank, with the river’s edge being treated as the extent of the highway. The presumption is exhaustively explained in Hale v Norfolk County Council [2001] Ch 717. In my judgment, this presumption is entirely inapplicable. The foundation of the presumption is that a landowner is deemed to fence his own land against the highway, where a fence adjoins the verge. In the case of a river and river bank, there is no feature constructed by the landowner from which it can be inferred that the verge was subject to dedication by him.
67. Accordingly, my conclusion is that there are no highway rights over the Bank. There is of course a public right of way to the water's edge in order to access the ferry: but this would only extend over part of the slipway and not the Bank in any event. It is possible that public rights of way on foot may have been acquired over the Bank, and indeed there are the traces of a worn track on it. However, this is not the appropriate forum for deciding this issue. I am told that no footpaths or other rights are marked on the Definitive Map, but it is always open to a party to apply to modify the Definitive Map. In that event there would be public consultation, and in my view that is a more suitable context for this point to be raised.
RULE 41(2)(a) OF THE 2003 RULES
68. I have set out the Rule in full in paragraph 5 of this Decision. Where a substantive decision has been made, the Adjudicator may require the registrar to ensure that “a specified entry be made on the register of any title affected………..” as a condition of the registration. If I find for the Applicant, as I have done, and direct the registrar to give effect to its application, the Respondent invites me to require the registrar to note on the register that the Disputed Land is subject to public towing rights. This argument was first raised when Mr Jeffries addressed me on the first day of the hearing. The Applicant characterises it as a spoiling exercise, and submits that I should not accede to the request even if I am satisfied that the Disputed Land is indeed subject to such rights.
69. In making a substantive order, it seems to me that I must necessarily have regard to the provisions of Rule 41(2)(a). I have the power conferred by that rule and if appropriate I should exercise it. If the point has been raised very late in the day, this may have implications for costs, but I do not think I should simply disregard the terms of the Rule. I must therefore consider whether, as a condition of allowing the Applicant’s application, I ought to require the registrar to note the existence of public towing rights against the title to the Disputed Land. Whether I do this depends, of course, on whether I am satisfied that such rights exist over the land. I have already decided that the Disputed Land did not form part of a towpath constructed by the City of London in connection with the creation of Shepperton Lock. I must therefore be satisfied that the public has acquired towing rights over the Disputed Land in some other way, presumably by long user. In my judgment, there is insufficient evidence available to me to make this finding. I have identified the principal historical documents in the case and refer to my commentary on them. I also bear in mind that the 1832 map strongly suggests that the towpath crossed from the Shepperton side to the Weybridge side at a point south of the present lock, no doubt due to the physical configuration of the river at this point and the shape of Hamhaugh Island. At all events, I am not satisfied that public towing rights do exists over the Disputed Land, and in the circumstances there are no grounds for entering a notice on the register. Even if I am wrong about this, a public towing right would be protected in any event by virtue of Schedule 1 of the 2002 Act and registration of the Applicant would not derogate from such a right.
THE ORDER
70. For the reasons set out above, I shall direct the Chief Land Registrar to allow the Applicant’s application dated 23rd February 2005, notwithstanding the Respondent’s objection. In the normal course of events I would order the Respondent to pay the Applicant’s costs and that is what I am minded to do. I direct the Applicant to serve a breakdown of its costs on the Respondent and on this Office within 14 days of the date of receipt of this Decision.. I am able to assess the costs myself or to direct a detailed assessment in the Supreme Court Costs Office. I invite the Applicant to make submissions on this point in writing to be served together with the Costs Breakdown. The Respondent may reply in writing within 14 days – both as to quantum, and as to any issue of principle – and the Applicant has permission to respond also in writing within a further period of 14 days.
OWEN RHYS
DEPUTY Adjudicator to HM Land Registry
Dated this 6th day of August 2007
[o1]ref
[MSOffice2]see maps at 427, 209 and 296
[o3]complete
[o4]add
[MSOffice5]date?
[MSOffice6]Say something about land being subject to towing rights
