Summary

Adverse possession claims to land comprising a riverbed and foreshores, asserted against the purchaser of paper title to an ancient lordship, were determined as a preliminary issue, with longstanding estate owners and the Crown being treated as squatters for the purpose of the hearing. Evidence of commercial dredging supported the adverse possession claims and the Crown's intention to posses riparian lands under its ancient entitlements was not defeated by its policy of not contesting well-documented claims to such land.

Facts

On a trial of preliminary issues it fell to be determined whether the defendant landowners (S, H and the commissioners) had established adverse possession of lands in respect of which the claimant (R) owned paper title. R had purchased a lordship comprising an area of land running along the bed and foreshore of a river that contained within it areas of land (M, C, G and P). Because of conflicting claims to title of those lands, the Land Registry had directed a court hearing to determine the matter and the court ordered that the issue of adverse possession be determined as a preliminary issue before analysis of the paper titles. Therefore the defendants were, for the purposes of the instant hearing, treated as squatters asserting adverse possession although their interests in the land were longstanding. S represented the estate of a duke whose ancestors had obtained C and M in the 13th century, the commissioners' claim to G was based on the Crown's entitlement to all areas between the high water mark of rivers and the limit of territorial waters, and H's claim was based on title to P running back to 1765. Historical evidence was adduced showing a variety of activities on the lands, including commercial dredging for sand under licence issued by S. In addition, H owned a general fishery within P. R submitted that the commissioners' claim of adverse possession was destroyed by its longstanding policy of not contesting claims to riparian lands that were supported by evidence, since that policy evidenced a lack of intention to exclude everyone from their lands which was a required element of an intention to possess.

Held

(1) The commissioners' policy of not contesting well-documented claims to riparian lands did not deny the existence of its intention to possess such lands. An intention on a squatter's part to exclusively possess the land over which he claimed adverse possession, at least until he was dispossessed by another or until the paper owner showed him good title and a real will to possess, was sufficient to show his intention to possess. At all material times the commissioners had accompanied their acts of possession and control with the intention to possess. Accordingly, their claim of adverse possession succeeded and barred R's title to G. (2) On the evidence, neither S nor its predecessors in title had exercised acts of possession or control of M that would have come to the notice of a reasonable holder of M's paper title and there had been no widespread reputation as to the precise area of M over which S claimed ownership. Accordingly S's claim of adverse possession to M failed. (3) A series of acts of possession by S and its predecessors had a cumulative force tending towards the conclusion that they had exercised unchallenged, albeit sporadic, control in the area of C for many years preceding R's acquisition of paper title. Furthermore, the substantial commercial dredging of the river bed, conducted under licence issued by S and for consideration, amounted to the exercise by S of widespread, unbroken and exclusive possession of C. Accordingly, S's claim of adverse possession succeeded and barred R's title to C. (4) In relation to P, the rights of H and his predecessors were based on their general fishery coupled with the usually assumed property rights in the underlying river bed. However, the question of whether or not H's fishery included ownership of the river bed could only be resolved on analysis of the paper titles, which was not within the scope of the present hearing.

Preliminary issues determined