Geronimo Ltd & Anor v Brentford Yacht and Boat Company Ltd

This action concerns the title to a small piece of land on the north bank of the Grand Union Canal as it passes through Brentford, Middlesex. The land is referred to in the pleadings and below as “the Blue Land”. The approximate extent of the Blue Land is shown on the plans at tabs 1 and 2 of the core bundle, but neither of these is entirely accurate, and the true extent of the Blue Land is best described as the unregistered land bordered by the Grand Union Canal to the south, title no. AGL12435 to the north, title AGL12428 to the east and title no. AGL166963 to the west. For reasons which will become clear later on in this judgment, the Blue Land is to be divided for the purposes of the matters in dispute into two separate sections, namely (i) that part which lies to the north of the ramp forming part of the former turnover bridge (which I shall call “the non-bridge land”), and (ii) the remaining part, that is to say, the part on which the ramp was built and a small section of towpath immediately adjacent (which I shall call “the bridge land”).

In summary, the second claimant, British Waterways Board (“BWB”), claims against the defendant declarations that (i) the legal title to the non-bridge land is held by BWB absolutely, and (ii) the defendant has no proprietary interest in the Blue Land, whether arising by adverse possession or at all. The defendant contends, firstly, that BWB is not the paper title owner of the non-bridge land, and secondly, that title to the Blue Land has been acquired by the defendant by adverse possession. It is convenient to say at this point that the defendant was incorporated on 28^th May 2003 and is the second company of that name, the first such company (originally called Brentford Yacht & Boat Building Company Limited and then Brentford Yacht & Boat Company Limited) having been incorporated in 1954 and dissolved on 6^th November 1990. For that reason, I will refer to the first Brentford Yacht & Boat Company Limited as “BYB1” and to the defendant as “BYB2”.

The proceedings originally included a claim by the first claimant, Geronimo Limited, against BYB2 for declarations as to title in relation to certain other land (referred to in the pleadings as the Green land) lying immediately to the west, north and east of the Blue Land. However, that part of the action was compromised by a consent order made on 15^th August 2008, and the remaining live issues relate only to the Blue Land.

BWB was represented at the trial by Mr Christopher Stoner. At the outset of the trial I granted permission under CPR Pt. 36.9 for BYB2 to be represented by its director, Mr Nigel Moore. Mr Moore conducted BYB2’s case with moderation and courtesy throughout. Mr Stoner conducted BWB’s case with proper regard for the duties of counsel when the other party is unrepresented. I am grateful to both for their helpful submissions and assistance in the course of the trial.

It is appropriate to begin by describing the relevant conveyancing history in relation to the Blue Land.

The Grand Union Canal

I have already referred above to the fact that the Blue Land abuts the Grand Union Canal. The Canal was originally constructed as the Grand Junction Canal pursuant to the Grand Junction Canal Act 1793 (“the 1793 Act”). The preamble to the Act is as follows:

“An Act for making and maintaining a Navigable Canal for the Oxford Canal Navigation, at Braunston, in the County of Northampton, to join the River Thames at or near Brentford, in the County of Middlesex, and also certain Collateral Cuts from the said intended Canal”

The Act established the Company of Proprietors of the Grand Junction Canal (which I shall call “the canal company”), who were empowered to purchase land and construct the canal which was to “unite with the River Thames at the place where the eastern branch of the River Brent is received by the Thames”. This is a reference to the fact that at the time the River Brent flowed around and to the south of Brentford in an ox-bow shape, and then divided into two branches at the point where it met the north-western tip of the then town meadow. One such branch flowed into the Thames to the east and the other to the south-east. The original proposal was that the canal should utilise part of the south-eastern branch, but by the time of the passing of the 1793 Act, it had been agreed by all concerned that the relevant part of the canal would be constructed by means of a series of cuts to straighten up the eastern branch.

The two major local landowners whose lands would be affected by the construction of the relevant part of the canal were James Clitherow and Dr Robert Johnson. Section V of the 1793 Act recites that “a map or plan, describing the line of the said intended canal from the said River Brent, along the eastern branch thereof, till its junction with the River Thames aforesaid, and the lands through which the same is intended to be carried, together with reference containing a list of the names of the owners, or reputed owners and occupiers, of such lands, hath been made and signed by James Clitherow Esquire, and Robert Wallace Johnson Esquire, principal owners of such lands …”. A copy of the signed map is at tab 13 of the core bundle and shows the intended line of the canal marked by a red line. BWB also produced in evidence part of the narrative from the Grand Junction Canal Book of Reference, which shows that the canal company acquired 3 roods and 8 perches from Dr Johnson in respect of the canal and towing path. Unfortunately, it is not possible to identify what that land was. However, the signed map shows the town meadow land to the south of the eastern branch of the River Brent marked “Dr Robt. Wallace Johnson”, and it is a fair inference that the land acquired from Dr Johnson must have included those parts of the meadow land which were needed for the canal or towpath.

The tip

The relevant part of the red line on the signed map passes to the south-east of, and therefore cuts off, the north-west tip of the meadow land, leaving what Mr Stoner aptly described as a seal’s head shape. I shall refer to it from now on as “the tip”. It is convenient to say at this point that (approximately) the southern half of the tip forms the non-bridge land.

The extract from the Grand Junction Canal Book of Reference at tab 11 of the core bundle (a larger scale version of which was produced at the trial as document BW1), which I was told was prepared in 1811, shows that the canal was constructed more or less along the red line. It is common ground that the tip was not acquired by the canal company but remained in the ownership of Dr Johnson. I should perhaps mention that Mr Moore’s researches led him to conclude that Dr Johnson was in fact the copyholder, the relevant lord of the manor being James Clitherow. That may be right, but I do not need to decide the point for present purposes, because it is common ground that Dr Johnson owned the freehold of the tip by the time the relevant conveyancing history starts.

The infill land

As part of the construction of the canal, the tip was connected to the former north bank of the river by an infill or causeway which was constructed in an east-west direction across what had formerly been the river bed. I shall call this from now on “the infill land”. The effect was that the part of the river lying to the north of the infill land became an enclosed dock (Workhouse Dock) accessible by a channel (also part of the former river) running off the new canal and along the north edge of the tip. The eastern part of the infill land equates approximately to the bridge land.

The turnover bridge

Section 31 of the 1793 Act provided for the towing path to “go, be made, and be carried …. upon and over a certain common called Ham Common, in the said Township of New Brentford, to a certain place or point on the said common called Ham Common, where the said River Brent separateth and divideth itself into two branches, each of which branches runneth into the said River Thames, and that then, and from that place so fixed and ascertained, the said towing path shall cross the east branch of the said River Brent, and shall go, be made, and be carried on and along the South side of the said River Brent and line of the said canal …”. Pursuant to this, a bridge was constructed to connect the infill land and the tip with the south side of the canal. Mr Moore believes (relying on the reference in section 77 of the 1793 Act to “any swivel bridge, or drawbridge”) that the bridge was a swing or swivel bridge, that is to say, a bridge which swung out of the way to allow river traffic to pass and then swung back into position again to connect the two banks. Be that as it may, the original bridge was subsequently replaced by what has been called (and what I shall call from now on) “the turnover bridge”. This was a substantial structure, supported by stone or brick buttresses on either side and accessed by a ramp leading up from each bank. Its purpose was to allow horses towing barges to cross the canal from the northern towpath to its continuation on the south bank of the canal and vice-versa. It appears from one of the photographs adduced by Mr Moore that the brick buttresses and ramp were solid on the north bank, but there was an arch on the south bank through which it was possible to pass. There is no evidence of precisely when the turnover bridge was built. However, it was certainly in place by 1897, because it is shown on the plan attached to the statutory declaration dated 28^th January 1897 to which I shall refer below. It is common ground that at all material times a public right of way ran along the towpath and over the turnover bridge. It is also common ground that the turnover bridge was constructed on the infill land as opposed to the tip.

It is convenient at this point to summarise briefly the subsequent history in relation to the turnover bridge. A letter written by the Estate Officer (South East) for BWB on 26^th November 1973 refers to it as having been struck by a barge and badly damaged in 1958 and then removed in about 1964. It appears that no bridge existed until about 1977, when the present (pedestrian only) bridge was constructed by the Greater London Council pursuant to a licence granted by BWB on 22^nd July 1977. That bridge is a footbridge accessed by means of a ramp and railings running at right angles to the bridge itself and parallel to the canal.

Paper title: the tip

Mr Moore says that Dr Johnson conveyed the tip to James Montgomery in 1814. I was shown what I was told was the conveyance plan, but the conveyance itself is not in evidence. In any event, it is common ground that by 1897 the tip had become vested in Mr Montgomery’s widow, Henrietta Montgomery. On 28^th January 1897 her son, Archibald Montgomery, swore a statutory declaration to which was attached a plan showing the tip outlined in red. It is fair to say that the shape of the tip shown on the plan does not precisely correspond with the seal’s head shape shown on BW1. However, the declaration refers to the land being “approximately delineated” on the plan, from which it is to be inferred that the plan was not intended to be definitive. Moreover, it is quite possible that the shape of the tip had changed by reason of silting and erosion on the north side and the construction of the infill land. In any event, it is not in dispute that the plan was intended to show the tip as it then was.

The statutory declaration stated (among other things) that Henrietta Montgomery had contracted to sell the tip to the canal company; that it was formerly the property of James Montgomery who had died on 4^th June 1883; that the land was of freehold tenure; that the land had passed to Henrietta Montgomery under James Montgomery’s will; and that Henrietta Montgomery had then entered into possession of the land and remained in possession at that date without interruption or adverse claim. It seems a reasonable inference that some issue had arisen between Mrs Montgomery and the canal company as to Mrs Montgomery’s ability to pass title to the tip pursuant to her contract of sale. That issue seems to have been resolved to the canal company’s satisfaction, because the contract was subsequently completed by a conveyance dated 5^th February 1897 by which the tip was conveyed to the canal company. The conveyance itself is illegible but the plan is the same as that attached to the statutory declaration.

On 1^st January 1929 the undertaking of the canal company became vested in the Regent’s Canal and Dock Company (which then changed its name to the Grand Union Canal Company) pursuant to the Regent’s Canal and Dock Company (Grand Junction Canal Purchase) Act 1928. On 1^st January 1948 the undertaking and property of the Grand Union Canal Company became vested in the British Transport Commission (which I shall call “the Commission”) pursuant to the provisions of the Transport Act 1947. The Commission therefore became the freehold owner of (among other things) the tip.

The next event in the conveyancing history of the tip is important. On 18^th March 1952 the Commission conveyed to Middlesex County Council (“Middlesex”) part of Workhouse Dock and certain adjoining land. I shall call this “the 1952 conveyance”. It includes the following recitals:

“WHEREAS the Commission are seised of the land coloured pink and pink hatched red on the plan hereto annexed in fee simple in possession ... and claims to be entitled to an estate in fee simple or to some other right in the land coloured green on the said plan AND WHEREAS the said land being required by the Council for the purposes of the Middlesex County Council Act 1944 (Section 211) ....”

By clause 1 the Commission conveyed to Middlesex:

“ALL THOSE pieces of land situate at Brentford in the County of Middlesex for the purposes of identification delineated on the said plan and thereon coloured respectively pink pink hatched red and green TOGETHER WITH the messuages dwellinghouses and buildings erected on the said piece of land coloured pink and on some part thereof”

The land coloured pink and green comprised respectively land and buildings to the north-west of Workhouse Dock and the southern half of Workhouse Dock itself. The land coloured pink hatched red includes the northern part of the tip. On the face of it, however, it does not extend to the non-bridge land. By clause 3(i) of the 1952 conveyance the Council covenanted to erect and maintain a good and sufficient fence between the points marked “A” and “B” on the plan. The line between those points runs along the southern boundary of the land hatched pink. The title to the relevant land was subsequently registered under title no. MX 255372. The area edged red on the title plan is the same as that coloured pink hatched red on the 1952 conveyance plan.

The precise extent of the land the subject of the 1952 conveyance is one of the issues in the present proceedings. Mr Moore says that it included the non-bridge land, and that such land is now vested in Hounslow District Council (“Hounslow”) or whoever may be the relevant statutory successor to the London Residuary Body. BWB says that the non-bridge land remained vested in the Commission and that it became vested in BWB on 1^st January 1963 pursuant to the relevant provisions of the Transport Act 1962. The dispute turns on the proper construction of the 1952 conveyance, and I shall return to it in greater detail below.

The 1954 lease

On 2^nd August 1945 Ridgeway Motors (Isleworth) Limited (which I shall call “Ridgeways”) was incorporated. Its business included a marine business. It traded from premises in the vicinity of Workhouse Dock from about 1947 onwards. On 27^th April 1954 it was granted by Middlesex a lease of part of Workhouse Dock and certain adjoining land for 21 years from 25^th March 1954 at a rent of £212 10/- a year. The land shown on the lease plan (of which I have only seen an uncoloured copy) includes the land coloured pink hatched red on the plan attached to the 1952 conveyance but does not extend to any part of the Blue Land.

Ridgeways covenanted to use the demised premises only for the purpose of “garage proprietors motor car engineers repairers hirers and dealers general engineers woodworkers and boat builders repairers hirers and dealers” without the consent of Middlesex. The alienation provisions of the lease contained the following proviso:

“Provided that [Middlesex CC] will not raise any objection to [Ridgeways] sub-letting all or any part of the land hereby demised to the Honour Engineering Company or to the Brentford Yacht and Boat Building Company Limited (a Company to be formed under that name or if that name is not acceptable to the Registrar of Companies then to that company however named) without consent”

The reference to “the Brentford Yacht and Boat Building Company Limited” is to the company that I have called above “BYB1”, which was incorporated at some time in 1954.

The 1954 lease also included a covenant on the part of Ridgeways forthwith at its own expense to erect between the letters X Y Z C and D on the plan a fence “Six feet in height of Peerless wire fencing on reinforced concrete posts with gates to match or such other fencing as may be agreed so far as [Ridgeways] are legally entitled to do so”. The line represented by the letters “Y Z C” on the plan corresponds broadly to the line represented by the letters “A B” on the plan attached to the 1952 conveyance.

Paper title: the bridge land

The western part of the infill land is vested in BWB under title no. AGL166963. The eastern part equates to what I have called above “the bridge land”. There is no evidence of any conveyancing transaction taking place in relation to the freehold of the bridge land either at the time of or following the construction of the canal. Nor are the parties agreed as to the identity of the paper title owner of the bridge land. I refer to this part of the dispute in greater detail below.

On 12^th July 2005 BYB2 applied to HM Land Registry to be registered as the owner of a possessory title to the Blue Land on the basis that it had acquired title by adverse possession. Its application was supported by a statement of case and various statutory declarations and witness statements. BWB objected. The application was referred to the Adjudicator to the Land Registry but following the issue of these proceedings on 11^th September 2007, the application was adjourned pending the court’s decision.

BWB claims in its Particulars of Claim the following three declarations in relation to the Blue Land: (i) that legal title to the Blue Land is held by BWB alternatively the first claimant (Geronimo Limited); (ii) that the legal title to the Blue Land is not subject to any possessory or other adverse title; and (iii) BYB2 has no proprietary interest in the Blue Land whether arising by reason of adverse possession or at all.

I have already referred above to BWB’s claim to be the paper title owner of the non-bridge land as the statutory successor to the canal company. Its case in relation to the bridge land is put in various different ways in its Skeleton Argument. These are, in summary, that (i) the land was part of the land acquired by the canal company from Dr Johnson, the relevant deed or deeds having since been lost; or (ii) the paper title owner is the Crown by virtue of the presumption that the ownership of tidal watercourses vests in the Crown so far as the tide flows and reflows, and the canal company entered into possession of the bridge land with the implied permission of the Crown; or (iii) the canal company acquired title to the bridge land by adverse possession and its title is now vested in BWB; or (iv) the canal company acquired title to the bridge land by virtue of the ad medium filum principle when acquiring the non-bridge land in 1897 and its title is now vested in BWB. BWB did not pursue the first of these contentions at trial. The remainder were directed to showing, if necessary, that BWB has a better title to the bridge land than BYB2. BWB does not invite me to decide in these proceedings whether any of these contentions is well founded, and I have not heard any detailed argument or evidence addressed to them. Nor does BWB (rightly, in my judgment) invite me to make any positive declaration as to the title to the bridge land, given in particular the absence of the Crown as a party to the proceedings. Its principal concern is to establish that BYB2 has no title to the bridge land, and to that end it would be content, as I understand it, with a declaration along the lines of the third declaration claimed in the Particulars of Claim.

BYB2’s Defence is dated 10^th October 2007 and is expanded upon in the Further Information dated 14^th February 2008. Its case was further explained and amplified by Mr Moore in the course of the trial. I have already referred above to its case as regards the paper title to the non-bridge land, namely that the 1952 conveyance on its true construction conveyed the whole of the tip, including the non-bridge land, to Middlesex, and that it is now vested in the relevant statutory successor. As regards the bridge land, BYB2 says that the part of the river bed on which the infill was constructed formed part of the manor lands of James Clitherow, who was therefore the original paper title owner. Mr Moore argues that it is to be inferred from all the circumstances, including the fact that Mr Clitherow was a well-known local philanthropist, that he must have given the bridge land to the local authority responsible for highways at the time, so that the paper title is now vested in relevant statutory successor to that authority, namely, Hounslow.

BYB2 further claims to have acquired title to the whole of the Blue Land by adverse possession. Although, as I have mentioned above, it was not itself incorporated until 28^th May 2003, its primary case, in summary, is that (i) BYB1 acquired title to the Blue Land by adverse possession; (ii) Ridgeways acquired the shares in BYB1 in July 1972 and thereby the title to the Blue Land already acquired by BYB1; (iii) Mr Moore acquired Ridgeways in 2001; and (iv) Mr Moore transferred all Ridgeways’ property rights to BYB2 at some point in 2003. BYB2’s alternative case was that Ridgeways acquired title by adverse possession after 1990 and that its title passed to BYB2 in the manner described above.

It is right to mention one further matter arising out of the statements of case. Paragraph 7(ii) of BYB2’s Defence pleads (among other things) as follows:

“The basis of the claim for first registration of the Blue Land is that of exclusive occupation of unregistered land over many years – with the written consent of the ‘true owner’ (Hounslow Borough Council), that they would raise no objections to such registration, subject only to their rights of access for maintenance of the footbridge and street lighting”

The reference to the written consent of Hounslow is, as I understand it, to certain e-mails passing between Mr Moore and Hounslow in 2005 which are attached to BWB’s Skeleton Argument. These include an e-mail sent on 4^th July 2005, in which Hounslow informed Mr Moore that it had no evidence it owned “the strip in question” (which I take to be the Blue Land). Mr Moore replied as follows:

“As the Council has no evidence of ownership, would it be prepared to write a letter supporting my application for first registration, while making it clear that any title should ensure rights of access for maintenance of the bridge and lighting? That in itself would be of considerable assistance in pursuing this course with Swansea.”

Hounslow replied the same day as follows:

“From my dealings with the Land Registry in the past, I suspect that, in connection with your application for registration, you will have to produce some form of statutory declaration to support it. If you wish to say in your declaration that the Council is fully aware of your application and does not oppose it subject to the continuance of any rights of access that exist in favour of any third party or parties for maintenance of the adjoining bridge and lighting, you may accept this e-mail as confirmation of this.”

At one point it appeared as though BYB2’s case might be that since Hounslow as the (alleged) paper title owner of the Blue Land does not object to BYB2 being registered with possessory title in respect of the Blue Land, BYB2 is entitled to be so registered without more and BWB has no right to object. However, to the extent that this was at any time BYB2’s case, it was not pursued at trial, and in my judgment, Mr Moore was right not to pursue it. All Hounslow was saying, in my view, is that if Mr Moore could establish title to the Blue Land by adverse possession, Hounslow would not object to his being registered. But BYB2 must still establish its claim.

In the above circumstances, the following two principal issues arise:

I propose to deal with these issues in order.

I have already set out above the material provisions of the 1952 conveyance. So far as relevant, what was conveyed to Middlesex was the land “for the purposes of identification delineated on the said plan and thereon coloured .... pink hatched red”. The words “for the purposes of identification” would ordinarily be taken as indicating that the plan was intended to be subservient to any verbal description in the conveyance. It is a noteworthy feature of the 1952 conveyance, however, that there is no relevant verbal description. The land intended to be conveyed is identified solely by reference to the plan.

BWB contends that on a proper reading of the plan, the land coloured pink hatched red does not include the non-bridge land. I agree. It seems to me that in this respect the plan is quite clear and not open to doubt. In my judgment, this conclusion is supported by two further considerations. First, the intended fence line shown on the plan runs along the southern part of the area coloured pink hatched red, which suggests to my mind that the parties intended the colouring to be as accurate as possible. Secondly, clause 3 of the conveyance (in fact the second clause 3) contains the following provision:

“The Commission hereby acknowledges the right of the Council to production of a conveyance dated [5^th February 1897] made between Henrietta Montgomery of the one part and [the canal company] of the other part and to delivery of copies thereof and hereby undertake for the safe custody thereof”

The Commission therefore retained the 1897 conveyance. The general rule in relation to unregistered land is that the purchaser has a right to the title deeds: see Megarry & Wade, 7^th ed., at para. 8-034. However, the vendor may retain documents of title where (a) he retains any part of the land to which the documents relate, or (b) where the document consists of a trust instrument or other instrument creating a trust which is still subsisting or an instrument relating to the appointment or discharge of trustees of a subsisting trust: see section 45(9) of the Law of Property Act 1925. In that event, the vendor must give the purchaser an acknowledgement of the latter’s right to production of the deeds and (unless the vendor is a mortgagee or trustee of the land) an undertaking for their safe custody: see Megarry & Wade at para. 8-034. Against this background, it appears to me that the obvious inference from the fact that the Commission did not hand over the 1897 conveyance is that it must have retained part of the land to which that conveyance related, and that part can only be the non-bridge land.

Mr Moore made three principal points. His first was that the shape of the tip shown on the plan did not reflect (as he put it) the crisp lines shown on the 1897 conveyance plan in any direction. The plan was, he said in cross-examination, “extraordinarily inaccurate”. The pink hatched area plus the non-bridge area differed substantially from the shape shown on the 1897 plan. As a consequence, the pink hatching cannot be relied on as definitive, and in the absence of a verbal description expressly excluding the non-bridge land, it must be assumed that the parties intended to convey the entirety of the tip. Secondly, Mr Moore asked rhetorically why the Commission should have wanted to retain any part of the tip. Thirdly, he contended that there might have been many reasons why the Commission would have wanted to retain the 1897 conveyance, and in that regard, he pointed to the fact that a number of deeds had been retained by the canal company or its successors even though the land had been conveyed away.

I do not accept any of these arguments. As to the first, it appears to me that any difference in shape between the tip shown on the plans attached to the 1897 and 1952 conveyances is attributable in part to changes resulting from silting or erosion in relation to that part of the tip which abuts Workhouse Dock, and partly to the inherent inaccuracy of the plans themselves, particularly that attached to the 1897 conveyance (which, as I have already noted above, was the same as that attached to the statutory declaration, in which the tip was referred to as being “approximately delineated” on the plan). As Mr Stoner pointed out, the one constant feature on both plans is the curve of the turnover bridge ramp. The plan attached to the 1897 conveyance shows the land edged red running right up to the curve, but the plan attached to the 1952 conveyance shows the land coloured red hatched pink and the intended fence line stopping well short of the curve. The scale and detailing of the plan makes it quite impossible, in my judgment, to treat this as anything other than deliberate.

As to Mr Moore’s second point, there is no hard evidence of why the 1952 conveyance was entered into. All I have is the recital that the land was required by Middlesex for the purposes of section 211 of the Middlesex County Council Act 1944. That section empowered the Council to acquire land for the purposes of preserving amenities (but only by agreement in the case of land vested in a company authorised by statute to carry on a canal undertaking). But there is no evidence of what amenities the Council wished to preserve or what part the land the subject of the 1952 conveyance was intended to play in that process. Mr Moore contended in his closing submissions that Middlesex wanted to erect a fence along the entire southern side of Workhouse Dock with a view to giving Ridgeways greater security. But there is no evidence to support that, nor is there any reliable evidence that at the time of the 1952 conveyance Ridgeways either already occupied any part of the non-bridge land or that it intended to occupy any part thereafter. Moreover, insofar as the 1952 conveyance was entered into for a purpose connected with Ridgeways, the exclusion of the non-bridge land from the premises subsequently demised to Ridgeways by the 1954 lease supports the view that Middlesex did not intend to acquire any part of the non-bridge land. Mr Moore also said that Middlesex wanted to improve New Brentford generally and might simply have been keeping its options open in relation to the use of the south side of Workhouse Dock. There is no evidence supporting that suggestion either, but even if it is right, it does not assist on the question of how much land Middlesex might have wanted. Moreover, it is by no means inconceivable, in my judgment, that for operational or other reasons the Commission might have wanted to retain control of and access to the short stretch of canal frontage to the east of the turnover bridge.

As to the third point, Mr Moore was not able to suggest any convincing reason why, if the 1952 conveyance had been intended to convey the whole of the tip, the Council would nonetheless have been prepared to give up its prima facie right to the 1897 conveyance which was, after all, the root of title which it would need in relation to any future sale of the land. It appears to me that in the absence of any such reason, the correct inference is that contended for by BWB, namely, that the 1952 conveyance was not intended to include the bridge land.

For these reasons, it appears to me that BWB is the paper title owner of the non-bridge part of the Blue Land, and I propose to make a declaration accordingly.

Preliminary

Before I consider BYB2’s claim to adverse possession of the Blue Land, it is necessary to deal with one preliminary matter. As I have mentioned above, BWB seeks a declaration that BYB2 has no possessory or other title to the Blue Land. Given my conclusion that BWB is the paper title owner of the non-bridge land, BWB clearly has a sufficient interest to seek such relief in relation to that land. However, the position in relation to the bridge land requires greater consideration, because unless BWB is the paper title owner of that land, the true paper title owner is not a party to these proceedings. If so, it would follow that (i) any decision on the question whether BYB2 has acquired title to the bridge land by adverse possession will be made in the absence of the paper title owner, and (ii) the declaration which BWB invites me to make will, if made, be made at the suit of someone who is not or may not be the paper title owner. These considerations give rise to the question whether, as matters stand at present, I ought to decide the adverse possession issue in relation to the bridge land.

Three points seem to me to be important. First, the factual basis of BYB2’s claim for adverse possession does not appear to me distinguish in any material respect between use of the non-bridge land and use of the bridge land. It follows that in practice a decision on the former will inevitably involve a decision on the latter. Secondly, BYB2’s claim to be registered as proprietor of the Blue Land, including the bridge land, has been adjourned by the Adjudicator to the Land Registry pending the outcome of these proceedings, and it would be unfortunate, to say the least, if the adverse possession issue were not now to be decided in its entirety. Thirdly, any decision I make will, of course, be binding only as between BWB and BYB2. In these circumstances, it is appropriate, in my judgment, that I should decide the adverse possession issue in relation to the bridge land as well as the non-bridge land, and I propose to do so.

Relevant principles

Before turning to the factual basis of BYB2’s claim to title by adverse possession, it is appropriate to set out briefly the relevant legal principles. As will be seen, the period in respect of which adverse possession is claimed by BYB2 begins in 1947 and continues up to the present day. The relevant statute in force in 1947 was the Limitation Act 1939. That Act was amended by the Limitation Amendment Act 1980. The law was then consolidated by the Limitation Act 1980 with effect from 1^st May 1981. For the purposes of the matters at issue in these proceedings, the relevant law has not changed since 1947, and I can take it from the Limitation Act 1980. I should perhaps add that although the Land Registration Act 2002 has made important changes in relation to the law of adverse possession as it applies to registered land, I do not need to consider that Act because the title to the Blue Land has at all material times been unregistered.

Section 15 of the Limitation Act 1980 provides, so far as relevant, as follows:

“15(1) No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.

….

(6)

Part I of Schedule I to this Act contains provisions for determining the date of accrual of rights of action to recover land in the cases there mentioned.”

Schedule 1 provides as follows, so far as relevant:

“1.

Where the person bringing an action to recover land, or some person through whom he claims, has been in possession of the land, and has while entitled to the land been dispossessed or discontinued his possession, the right of action shall be treated as having accrued on the date of the dispossession or discontinuance.

....

8(1) No right of action to recover land shall be treated as accruing unless the land is in the possession of some person in whose favour the period of limitation can run (referred to below in this paragraph as 'adverse possession'); and where under the preceding provisions of this Schedule any such right of action is treated as accruing on a certain date and no person is in adverse possession on that date, the right of action shall not be treated as accruing unless and until adverse possession is taken of the land.

8(2) Where a right of action to recover land has accrued and after its accrual, before the right is barred, the land ceases to be in adverse possession, the right of action shall no longer be treated as having accrued and no fresh right of action shall be treated as accruing unless and until the land is again taken into adverse possession”

The meaning of “possession” was considered by House of Lords in J A Pye (Oxford) v. Graham [2003] 1 A.C. 419. The expression connotes both factual possession and an intention to possess. As to the former, Lord Browne-Wilkinson (with whom Lords Bingham, Mackay, Hope and Hutton agreed) approved at [41] the following statement of Slade J. in Powell v. Macfarlane (1977) 38 P. & C. R. 452 at 470-471:

“Factual possession signifies an appropriate degree of physical control. It must be a single and [exclusive] possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what 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 or 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.”

As to intention to possess, Lord Browne-Wilkinson said at [40]:

“What is crucial is to understand that, without the requisite intention, in law there can be no possession .... there has always, both in Roman law and in common law, been a requirement to show an intention to possess in addition to objective acts of physical possession. Such intention may be, and frequently is, deduced from the physical acts themselves. But there is no doubt in my judgment that there are two separate elements in legal possession. So far as English law is concerned intention as a separate element is obviously necessary. Suppose a case where A is found to be in occupation of a locked house. He may be there as a squatter, as an overnight trespasser, or as a friend looking after the house of the paper owner during his absence on holiday. The acts done by A in any given period do not tell you whether there is legal possession. If A is there as a squatter he intends to stay as long as he can for his own benefit: his intention is an intention to possess. But if he only intends to trespass for the night or has expressly agreed to look after the house for his friend he does not have possession. It is not the nature of the acts which A does but the intention with which he does them which determines whether or not he is in possession.”

A high standard of proof is required in relation to the establishment of an intention to possess. In Powell v. Macfarlane Slade J. expressed the principle as follows:

“An owner or other person with the right to possession of land will be readily assumed to have the requisite intention to possess, unless the contrary is clearly proved .... The position, however, is quite different from a case where the question is whether a trespasser has acquired possession. In such a situation the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner.”

With the above in mind, I turn to consider the factual basis of BYB2’s claim to adverse possession.

BYB2’s claim

It appears from paragraph 34 of the Further Information dated 14^th February 2008 that BYB2’s claim to title by adverse possession is based on possession of the Blue Land by the following entities during the following periods: (i) possession by Ridgeways of the Blue Land, excluding the turnover bridge, from 1947 to 1954; (ii) possession by BYB1 of the Blue Land, excluding the turnover bridge, from 1954 to 1962; (iii) possession by BYB1 of the Blue Land from 1962 to 1990; (iv) possession of the Blue Land by Brentford Marine Services (which I shall call “BMS”) on behalf of Ridgeways and/or Ridgeways from 1990 to 2003; and (v) possession of the Blue Land by BYB2 from 2003 onwards. I shall refer to these respectively as “period 1”, “period 2” etc. I propose to consider them in turn.

Before I do so, however, it is appropriate to say something about the evidence. Bundle B contains nine witness statements put in on behalf of BWB. All save Mr Thomas gave oral evidence and were cross-examined by Mr Moore. At Mr Moore’s request, which was not opposed by BWB, BWB’s witnesses all remained outside court prior to giving their oral evidence. I gave permission to BWB to rely on Mr Thomas’s witness statement, but I have not accorded it any weight, given that Mr Moore was not able to cross-examine Mr Thomas. BWB’s witnesses cover the period from 1979 (when Mr Radley-Collis first began to use the towpath on the Blue Land for temporarily mooring boats) through to the present day. BYB2’s only witness was Mr Moore. He first arrived in Workhouse Dock in March 1990. He had no involvement with BYB1, and although he carried out some work for BMS in the 1990’s, he did not become involved with Ridgeway until 2001. Much of BYB2’s case therefore depended on inferences drawn from photographs or documents.

Period 1 (1947 to 1954 – Ridgeways)

BYB2 contends that Ridgeways were in possession of the Blue Land during period 1, and that for adverse possession purposes, its possession can be added to the later periods of possession by BYB1.

There is very little evidence of the use, if any, made of the Blue Land during this period. Bundle G contains a draft statutory declaration of Mr Newing (who became a director of Ridgeways in 1973), from which it appears (so far as it is possible to tell without the plan, which is unfortunately missing) that Ridgeways were in occupation of the land the subject of the 1954 lease from 1947 onwards. BYB2 says that in or about 1947 Ridgeways constructed a picket fence along the south-eastern side of Workhouse Dock which ran more or less up to the north side of the ramp leading to the turnover bridge and then followed closely round the curve before ending at the canal. The effect was to enclose the greater part, if not all, of the non-bridge land. Mr Moore argued that Ridgeways would have wanted to separate the public towpath from its marine operations in the southern half of Workhouse Dock, for which purpose it would have been natural to take advantage of the structure of the turnover bridge so as to prevent people getting round the end of the fence. He accepted that this was no more than an inference, but he argued it was an inference that I ought to draw.

Mr Moore relied on two photographs, one in the middle of page 77 of bundle H and the other handed up as D4. He obtained these from a Mr Ray Bulman, who (according to an e-mail sent to Mr Moore on 23^rd November 2006) occupied a boat at Ridgeways from September 1955 to mid-1976. Mr Bulman was not called to give evidence.

The photograph at page 77 of bundle F certainly shows a wooden fence along the south-eastern side of Workhouse Dock, but it is impossible to tell with any degree of confidence how close it passes to the north side of the ramp or where it goes after that. The photograph at D4 shows the land between the east side of the turnover bridge and the entrance to Workhouse Dock, but it is very blurred and indistinct, and I am not satisfied that it shows a fence in the position contended for by Mr Moore. It is fair to say, however, that so far as one can tell, it does not appear to show any fence dividing the non-bridge land from Workhouse Dock.

I do not think I can properly find, on the evidence of the photographs alone, that a fence existed along the line contended for by Mr Moore at any time during this period. Even if that is wrong, however, there is no evidence that any such fence was put up by Ridgeways or that Ridgeways used the enclosed part of the Blue Land for any purpose. As Mr Stoner pointed out in closing, the tip was in common ownership up to the 1952 conveyance, and it is not inconceivable that the fence was put up by the Commission to guide people over the turnover bridge and keep them off the non-bridge land to the north.

For the above reasons, I therefore reject the claim to adverse possession in relation to period 1.

Period 2 (1954 to 1962 – BYB1)

Mr Moore says in his witness statement that “Later the same year [i.e. 1954] ..... BYB1 replaced Ridgeways’ original picket fence with a concrete-posted mesh fence set back from the bridge, and running to the easternmost point in a straight line (omitting a significant area of the [Middlesex] purchase from the fenced demised land). The later replacement of this fence ran along the same lines but was built higher. Re-locating the fence line gave more usable access to the mainstream bank for boats waiting to enter the dock”. Again, however, Mr Moore was not personally involved with the land at this time. He did, however, say in cross-examination that he had seen a photograph taken from the north bank of Workhouse Dock looking across the dock which did not show a fence. He dated the photograph as having been taken before 1963 because it showed trains coming to Brentford Dock which was closed by 1963. The photograph was not produced in evidence. In addition, as I have mentioned above, the photograph at D4 does not appear to show any fence dividing the non-bridge land from the land to the north, although there is no evidence as to when that photograph was taken (beyond the fact that, if taken by Mr Bulman, it must have been taken in or after September 1955, when the latter first arrived in Workhouse Dock).

For the reasons explained above, I do not think BYB2 has established that any part of the non-bridge land was fenced off by Ridgeways during period 1. Nor is there any satisfactory evidence, in my judgment, as to what the position regarding fencing was in period 2. All I am left with is the undoubted fact that Ridgeways undertook in the 1954 lease to construct a fence dividing the leased land from the Blue Land. It seems clear that at some point Ridgeways must have complied with that obligation, because that is the line along which the current fence runs. That fence has been in position since at least 1996, when Mr Ray Farrow (whose evidence on this point I accept) first began to patrol the canal towpath on behalf of BWB. He says in his witness statement that the area of Blue Land was separated on its northern side from the boundary with the adjoining boatyard by a chain-link fence. That accords with the fencing covenant in the 1954 lease, under which, absent agreement on some other form of fencing, Ridgeways was obliged to erect wire fencing on reinforced concrete posts. It also accords with the e-mail from Mr Bulman to Mr Moore, to which I have referred above, in which Mr Bulman says that “the Ridgeways fence alongside [the turnover bridge] continued to point where the towpath reached the dock entrance, well beyond the bridge”, which perhaps suggests that the Ridgeways fence did indeed follow the northern boundary of the Blue Land. I am not prepared to assume, in the absence of compelling evidence to the contrary, that Ridgeways simply disregarded its fencing obligation. Doing the best I can, it is more likely than not, in my judgment, that it complied with that obligation within, at the most, a few years of entering into the 1954 lease. Even if that is wrong, there is simply no evidence that Ridgeways or BYB1 used any part of the Blue Land in period 2 for any purpose.

For the above reasons, BYB2 has not satisfied me that BYB1 was in possession of any part of the Blue Land during period 2.

Period 3 (1962 to 1990 – BYB1)

BYB2’s claim that BYB1 was in possession of the Blue Land during this period rests on three matters, namely: (i) BYB1 having erected a fence (following the demolition of the turnover bridge in or about 1964) running at right angles to the fence erected by Ridgeways along the southern side of Workhouse Dock and blocking off the towpath; (ii) BYB1 having permitted the Blue Land to be used for the construction of a concrete yacht; and (iii) BYB1 having used the Blue Land for the mooring of two hire craft. I shall take these in order.

As to (i), Mr Moore frankly accepted that there is no documentary evidence supporting the existence of the fence. He said in evidence that he had found out about it by speaking to people in the area. He mentioned Mr Cole, Mr Bulman and Mr Baker. However, none of them were called to give evidence. The only relevant evidence comes from Mr Radley-Collis, who gave evidence that in about 1996 he, Mr Baker (his business partner in BMS) and Rachel Murray (the owner of a barge moored against the Blue Land, to which I shall refer below) found what he described as “an old rusted wire mesh fence hidden in some of the brambles which were growing on the Blue Land” which had “some old hinges on it but no gate” and “When pulled straight it sat across the entrance to the Blue Land from the boundary fence which separated the basin from the Blue Land and ran towards the bottom of the steps which led up the footbridge although it did not reach right across to the steps of the footbridge as there was about a metre gap”. Mr Moore also recalled in cross-examination a section of mesh fencing that left a gap of one metre to the bridge. However, there is no evidence of when this fence was put up nor by whom nor with what intention, and it appears that it did not in any event reach all the way to the canal. I do not think that this is enough to establish possession of any part of the Blue Land by anyone, let alone BYB1.

As to (ii), BYB2 contends that in the early 1960’s BYB1 let or licensed the Blue Land or part to a Mr Cole for the purposes of constructing a concrete boat, and that a temporary boat building shelter was put up which remained in place for at least ten years. Mr Moore relied on the Schedule to an Official Certificate of Search dated 13^th May 1975, which refers to planning or other permission “for the retention of a temporary boat building shelter” in May 1969. All I can safely get out of this, it seems to me, is that there was a temporary boat building shelter in situ from a date prior to 1969 to at least 1975. There is nothing to show where it was, who put it up or why. Mr Moore contended in cross-examination that the shelter must have been on the Blue Land because Ridgeways had a series of buildings on the adjoining land and there was no further room for a shelter. However, there is no reliable evidence as to what buildings were or were not on Ridgeways’ land at the relevant time. Mr Moore also relied on the black and white photograph at page 338 of bundle F, which he said he had obtained from a local historian. He did not know its date, although he said in cross-examination that since it shows the middle island of the new lock built alongside the original Thames Lock, it must have been taken after 1961/1962. It shows what appears to be the middle and aft sections of an upturned yacht. However, it is impossible, in my judgment, to say with any degree of confidence whether and if so to what extent it is on the Blue Land, although it may perhaps be that some part of it is.

Mr Moore also relied on the exchange of e-mails between him and Mr Bulman in November 206 at pages 335 to 337 of bundle F. Mr Bulman says in his e-mail at page 335 that “Although I was very aware and often spoke to the guy building his concrete boat this would only have been during my visits to the yard to inspect progress of Merry Widow. Therefore I have no photos but I would certainly be willing to confirm its existence to a second party”. This does not say whether the boat was on the Blue Land or not, although the reference to “the yard” may perhaps suggest that it was not. Nor does it identify BYB1 as having permitted the boat to be there. In any event, as I have already mentioned above, Mr Bulman was not called to give evidence.

In my judgment, the available evidence is simply not sufficient to establish that the boat was built on the Blue Land or, if it was, that this was done under BYB1’s licence.

As to (iii), BYB1 changed its name from Brentford Yacht & Boat Building Company Limited to Brentford Yacht & Boat Company Limited on 14^th November 1969. BYB1’s accounts for the period 11^th October 1969 to 31^st July 1986 are in evidence at pages 346 to 362 of bundle F. Its income for the years up to and including the year ending 31^st July 1978 was derived from boat hire and mooring fees, but after that no further income is shown from boat hire. The (undated) list of hiring fees at page 343 of bundle F suggests that it was possible to hire out craft from 6^th March to 23^rd October in each year. Mr Moore said that two craft were hired out, and that they must have been moored on the canal next to the Blue Land because they would have had to have been afloat at all times, whereas access in and out of Workhouse Dock was severely restricted because of the tides. He argued that the boats were an important part of BYB1’s business, and BYB1 would have needed to protect them when moored against the bank, in which connection he repeated his suggestion that the Blue Land was fenced off by BYB1. I have already dealt with the latter suggestion above. As to the boat hire, I accept that BYB1’s business included the hiring out of two hirecraft. In that regard, Mr Moore told me, and I accept, that when he first arrived in March 1990 there was a sign on the fence dividing the Blue Land from Workhouse Dock bearing the name of BYB1 and advertising boats for hire. I am also prepared to accept that the two hire boats may have been, indeed probably were, moored on the canal for periods. But there is no evidence of whether this was next to the Blue Land or elsewhere. In that regard, there is force in the point made by Mr Stoner that it would have been much more sensible to moor the boats further upstream as close as possible to Brent Way. Nor, even if the boats were moored next to the Blue Land, is there any evidence that BYB1 did anything else of relevance in relation to the Blue Land other than to cross it for the purpose of access to the boats. In my judgment, the mere act of mooring a boat next to riparian land does not amount to possession of that land in the sense required to establish title by adverse possession. Indeed, Mr Moore fairly accepted that in the course of his cross-examination.

I should also refer to paragraph 105 of Mr Moore’s witness statement in which he says that diesel was sold by BYB1 to passing craft from “the bridge side bank” up to some point before his arrival in 1990. He relied in support on the documents at pages 409 and 410 of bundle F. However, these do not, in my judgment, establish that fuel was sold from the Blue Land or when the practice started or for how long it continued.

The above findings are sufficient on their own to enable me to conclude without difficulty that BYB2 has not established that BYB1 was in adverse possession of the Blue Land during period 3. In addition, however, it is quite clear, in my judgment, that BYB1 was not the only user of the Blue Land during this period. I say this for the following reasons.

First, it is reasonably clear that between 1964 and 1975 the Blue Land was let or licenced to a Mr Butt of Hall Autos (who ran a garage on Brent Way) for the purposes of vehicle parking and boat storage. On 30^th November 1964 the Estate Office (South-East) for BWB wrote to Mr Butt offering to grant him a tenancy of the land verged blue on the attached plan together with a right of way over the land coloured brown at an annual rent of £20. 0s. 0d on terms which included (by paragraph 3): “The tenant to use the land for the purpose only of parking motor vehicles, used in connection with his own business”. Mr Butt replied on 2^nd December 1964 to the effect that if the relevant term could be changed to include boat work, he would accept the conditions in BWB’s letter. BWB responded on 9^th December 1964 in terms which included the following:

“Approval has been given to this arrangement on the terms agreed between us, including your request to use the land for the storage of boats as well as motor vehicles used in connection with your business. I must, however, make it quite clear that your use of the land for boat storage does not, under any circumstances, carry with it any mooring rights.”

Unfortunately, the plan referred to in BWB’s letter of 30^th November 1964 does not appear to have survived. However, on 19^th October 1971 the Greater London Council (“GLC”) (having by then decided to build a new bridge to replace the turnover bridge) wrote to BWB asking for access to the “the area of land verged in blue on the attached plan, believed to be in your ownership”. The area in question comprises the Blue Land plus the remainder of the tip. On 21^st October 1971 BWB replied to the effect that “the premises you verged on your plan are already let” and suggesting that “you approach our tenants direct, and their address is as follows: Halls Autos, “The Ham”, Brentford”. Various further references to Mr Butt’s tenancy appear in the correspondence in bundle I. On 6^th May 1975 the GLC wrote to Messrs L O Glenister & Sons, who were solicitors acting on behalf of Mr Butt, referring to a licence granted by BWB to Mr Butt in 1964 to use the land shown coloured red on the attached plan for the parking of vehicles. The land in question broadly equates to the Blue Land. It seems reasonably clear from this correspondence that the land the subject of the tenancy agreed between BWB and Mr Butt in 1964 comprised or included the Blue Land. The purpose of the GLC’s letter of 6^th May 1975 was to persuade Mr Butt to remove his vehicles from the towpath and the Blue Land to enable the new bridge to be built, and to relocate to land at the rear of the Six Bells public house. The interest granted in 1964 was therefore clearly still in force in 1975. On 9^th June 1975 Glenisters wrote on behalf of Mr Butt agreeing to give up possession on certain specified terms. A subsequent letter from the GLC dated 11^th December 1975 refers to a surrender of Mr Butt’s tenancy as from 25^th December 1975.

I am satisfied from the above that Mr Butt had rights of parking and boat storage over the Blue Land from 1964 to 1975. The existence of those rights is important, in my judgment. First, it is not consistent with Ridgeways or BYB1 having been in exclusive occupation or control of the Blue Land over that period. Secondly, it is not consistent with the Blue Land having been fenced off by BYB1 at any time during the relevant period. Indeed, it makes it more likely, in my judgment, that the fence to which I have referred above was put up by Mr Butt. Thirdly, it encompasses the whole of the period in which BYB2 says the concrete boat and shelter were on the Blue Land, which suggests that the boat and shelter were not on the Blue Land or, if they were, that they did not occupy it exclusively, or that the person who licensed the building of the boat was Mr Butt not BYB1. Mr Moore argued in closing that it would not have been possible to have a boat and shelter of any size and Mr Butt’s vehicles on the Blue Land at the same time, from which he invited me to infer that the latter must have been on the towpath. The difficulty with that, however, is that the GLC’s letter dated 6^th May 1975, to which I have referred above, refers to Mr Butt’s vehicles being on “the land at the eastern end of the towpath and .... the towpath itself”.

Secondly, Mr Radley-Collis says in his witness statement that during the period 1979 to 1987, when he had a boatyard business called GT Steelcraft Limited which occupied premises in High Street, Brentford, he would on occasion use some of the canal frontage including that part of the towpath being the Blue Land for temporarily mooring boats which were coming into or going out of his boatyard or which he was waiting to take out on the river Thames or which were awaiting collection. He goes on to say that other people used the same frontage for similar purposes or whilst waiting to take boats into Ridgeway’s basin or to go through Thames Lock onto the river Thames. I accept his evidence on these points. It is therefore clear that at least from 1979 mooring against the Blue Land was, as Mr Stoner put it in cross-examination of Mr Moore, something of a free for all. Mr Moore’s response was that BYB1 had ceased to hire out boats by 1979. That may be right, but there is no evidence that the position was any different in relation to any earlier period.

Thirdly, Rachel Murray says in her witness statement that she stored personal items such as marine equipment on the Blue Land and used it from time to time since around 1980. She says further (and I accept) that “From 1980 to a few years before I moved to moor permanently against the Blue Land in 1990, various boat owners were aware at that time that [BWB] did not appear to look after the towpath or the Blue Land along this stretch of the [Grand Union Canal] and therefore people would moor against the towpath to the immediate west of the Blue Land and moor against the Blue Land itself from time to time without having to pay any mooring fees to [BWB] or anyone else”. Her evidence accords with that of Mr Radley-Collis, who says in his witness statement that “Before Rachel moored permanently against the Blue Land, she had previously kept items on the Blue Land from time to time and used the area as a “base” although she was not permanently moored there until 1991”. This evidence, which I accept, is consistent with mooring against the Blue Land from 1980 being something that many people did from time to time. In my judgment, it is overwhelmingly likely in all the circumstances that the same was true of the whole of period 3.

For the above reasons, I reject BYB2’s claim that BYB1 was in possession of the Blue Land during period 3 by reason of the various matters relied on. I should add that there is, in any event, no evidence that any title acquired by BYB1 was transferred to Ridgeway as contended for by BYB2. Mr Moore made it clear that he was relying only on the fact that Ridgeway acquired the shares in BYB1 in or about July 1972. But, as Mr Stoner pointed out, that did not of itself transfer to Ridgeway any property interest which BYB1 may have had or might acquire. On the face of it, any such interest would have remained vested in BYB1 until the latter was dissolved on 6^th November 1990 and would then have vested in the Crown as bona vacantia. However, I do not need to consider these points further given my conclusion that BYB1 did not in any event acquire title by adverse possession.

Period 4 (1990 to 2003 – BMS/Ridgeways)

BMS was a partnership between Mr Radley-Collis and Mr Keith Baker which started trading in February 1993. At or about that time it rented land from Ridgeways (which did not include the Blue Land) and constructed an office/workshop building on it. It ran a boatyard business which involved or included carrying out work on boats. Mr Moore’s evidence was that he took over BMS in 1999 and Ridgeways in 2001. BYB2 contends that BMS were in possession of the Blue Land in period 4 by virtue of (in particular) mooring and working on vessels either alongside the Blue Land itself or a pontoon which was installed by BMS in about 1996 at the eastern end of the Blue Land. It further contends that BMS acquired title on behalf of its landlord, Ridgeways, and that any such title passed to BYB2 in 2003 when (according to Mr Moore’s witness statement) Ridgeways “deeded all the property rights to BYB2”.

Before dealing with the use made of the Blue Land by BMA/Ridgeways during period 4, I make the following findings of fact as to the use of the Blue Land by others during that period.

First, in late 1988 a dutch barge called “Courage” was sailed across from Holland and moored on the canal with its front 20 feet alongside the south-western end of Blue Land. Courage has remained moored in that position ever since. Courage was owned by Mr and Mrs Fergusson-Lees until 1995 when it was acquired by Dr Ann Bowden. Mooring fees were paid to Halls Autos until about July 1991 and thereafter to BWB. Soon after that two barges (“Rocking Horse”, which was owned by Rachel Murray, and “Lazy Daze”) were moored in front of Courage alongside each other and adjacent to the Blue Land. Both paid mooring fees to BWB. Dr Bowden told me, and I accept, that Mr and Mrs Fergusson-Lees stored items under the footbridge, as did she in the years 1996-1998.

Secondly, Mr Patrick Murray visited the Blue Land once a month from December 1989 to March 1995 in his capacity as a Customer Services Manager for BWB. His recollection, which I accept, was that there were no gates of any kind at the entrance to the Blue Land in that period, although there was a wire fence separating the towpath and the Blue Land from Workhouse Dock.

Thirdly, in or about 1996 Rachel Murray, Mr Radley-Collis and Mr Baker, having discovered the old wire fence to which I have referred above, set a new metal post into the ground and reinstated the fence with a small gate in the gap between the fence and the edge of the footbridge. The gate was sometimes shut to stop people out for the day and the general public from walking through to where the boats were, but it was not to stop the boatowners themselves. It was, as Mr Radley-Collis put it in cross-examination, a means of “semi-control” of access. It could be locked but it was not standard practice over the years to lock it.

As appears above, Mr Radley-Collis and Mr Baker were partners in BMS but Ms Murray was not associated with either BMS or Ridgeway. Mr Moore argued in closing that it is to be inferred that she must have consulted with and obtained agreement to erect the fence and gate from Mr Newing, the then proprietor of Ridgeways. Ms Murray said nothing to this effect in her witness statement or her oral evidence. I am not prepared to draw any such inference. In my judgment, the fence and gate were put up by Ms Murray in her capacity as the occupier of a boat moored against the Blue Land and not on behalf of or with the permission of BMS or Ridgeways.

There is no reliable evidence of how long the fence and gate remained in use. Dr Bowden “semi-lived” on Courage from 1996 to 1998 and lived there full time from then on. Her recollection was that there was no fence and no gate, and that it wasn’t until Mr Moore reinstated the gate much later on that she had any sense that there had been a gate. Mr Carr, who walked the towpath from 1998 onwards, did not remember any gates at the entrance to the Blue Land at that time. Mr Farrow, who patrolled the towpath from 1^st January 1996 on average once every 6-8 weeks, says in his witness statement that the first time he saw any gates erected at the entrance to the Blue Land was when he visited Laura Terzoli on “Serendipity”, which cannot have been before the Autumn of 2003 because (according to Ms Terzoli) Serendipity did not arrive until then. Ms Terzoli says in her witness statement that when she arrived, there were “definitely no gates in this location”, although there was “a little piece of wire which jutted out from the chain link fence for a distance of about 1m on to the towpath roughly in line with where the steps up to the footbridge commenced but that this was not a gate or any form of barrier preventing access to the Blue Land”. Doing the best I can, I find that the fence and gate must have disappeared within a relatively short time (a few years at most) of being put up. Even if that is wrong, however, neither the fence nor the gate ever amounted to anything more than a nominal barrier, and in that regard, I accept Dr Bowden’s recollection that there was free access to the Blue Land throughout the relevant part of period 3 and, indeed, right up to the time the gates subsequently put up were locked in 2006.

Fourthly, following the installation of the fence and gate in about 1996, Rachel Murray and Mr Radley-Collis started to use the Blue Land as a garden and a playground area for Ms Murray’s son. Further landscaping and gardening work was subsequently done by a later occupier of Rocking Horse (Simeon). None of this work was done on behalf or at the request of BMS or Ridgeways. There is no evidence that those entities objected to the work or, indeed, that either entity regarded itself as being in a position to prevent the work. Nor is there any evidence that the work was carried out with their permission.

Fifthly, in about 1996 BMS installed a pontoon at the eastern end of the Blue Land. Its purpose was to enable boats to be temporarily moored prior to being moved into Workhouse Dock. It is shown, together with Courage and the two barges referred to above, in the photograph at page 118 of bundle H. Prior to installing it, Mr Radley-Collis spoke to Mr Newing, the then proprietor of Ridgeway, who said that he had no objection to the pontoon, but that Mr Radley-Collis would need to speak to BWB as the Blue Land was nothing to do with him. Mr Radley-Collis then obtained permission from Mr Ray Farrow, who was at the time the patrol officer for BWB responsible for moorings in the relevant area, for the pontoon to be installed. He and Mr Farrow agreed that boats moored on the inside of the pontoon would be treated as being off the canal, but boats moored on the outside would need to be licensed by BWB. Access to the pontoon can only be obtained over the Blue Land.

Sixthly, in 1998 Rachel Murray and Mr Radley-Collis applied to the Land Registry to be registered as proprietors of the Blue Land. On 17^th June 1998 Rachel Murray swore a statutory declaration in support of the application. Mr Radley-Collis swore a similar declaration. The relevant parts of Ms Murray’s declaration were as follows:

“3.

..... Since 1980, Peter Eric Radley-Collis and I have occupied [the Blue Land] and used it for the storage of boats and marine equipment, kept it neat and tidy and created a garden.

4.

The area hatched black on the said plan is a footpath which leads up to the Property, and we planted a hedge and erected a fence across the western boundary of the Property, and thereby excluded and prevented access beyond this point by third parties. The garden which we have created on the Property is also used as a playground for my son.

5.

We have occupied and used the Property without payment during this period of time. We have occupied and used the Property openly, to the exclusion of all others (except for our licencees), save as stated in paragraph 6 herein [which relates to the piles supporting the footbridge], without objection and without seeking permission from any person or body, believing our occupation and use to be rightful and legitimate.

....

7.

We have possessed the Property and treated it as our own since 1980 and I request that the Registrar register out title to the Property at HM Land Registry”

The solicitors acting for Ms Murray and Mr Radley-Collis were Fancy & Jackson. Their advice was that the application should be for ownership as tenants in common. It appears clear to me that application was made by Mr Radley-Collis in his personal capacity and not in his capacity as partner in BMS, since he makes no mention of any activities carried out by BMS, and his partner (Mr Baker) was not a co-applicant. Moreover, as I have already mentioned, Ms Murray was nothing to do with BMS or Ridgeway. The application was rejected because the Land Registry decided that adverse possession had not been shown.

I now turn to consider the use made of the Blue Land by BMS and/or Ridgeways during period 4. Mr Moore’s detailed evidence is contained in his witness statement dated 20^th December 2006 (which was produced in support of BYB2’s application for registration), to which he refers in paragraph 116 of his witness statement in these proceedings. In March 1990 he brought his boat “Platypus” alongside the Blue Land, before entering Workhouse Dock at high tide and mooring alongside the south bank. For the next few years until the pontoon was installed he used the Blue Land for mooring while waiting to enter or upon exiting Workhouse Dock. He says that “Throughout the first year the bank was always free for this use, sometime thereafter “Rocking Horse” took up more or less permanent stay followed by others at various times and lengths of stay, by which time the pontoon had been installed”. He continues as follows:

“7.

BMS as Ridgeways’ tenant made increasing use of the bridge land for working on those boats that were too large or deep drafted to bring into the tidal basin, and in 1996 in addition to mooring a catamaran alongside the bridge land, the finishing touches to conversion work on a dutch barge (“Diana”, later changed to “Hoop op Welvart”) were carried out here, continuing through to early 1997. I built my first collapsible wheelhouse for this boat in addition to other work on it ....

8.

The catamaran was moved into the basin the following year when room for it had been established, and continual work ensued on barges at this location. As there was no access from within the basin other than by water at appropriate tides, all access to the work had to be through this bridge land from the towpath, and work tools and supplies had to be stored and used on the land.

9.

Barges for this period included “Rios”, “Nooitvolmaakt”, “MV Little Troy” and “Chester”, and invoices for both mooring fees and work done to these boats at this location were issued, to which I will refer.

10.

From August 1999 I had taken over BMS, and for the next few years an intensive work schedule was carried out with up to three large barges being worked on at a time on this spot. “Chester” was gutted and refitted entirely over two years, with another wheelhouse being built as well as hatches and teak decking being installed. At the same time we conducted major modifications and refit on the barge “Sudersee” in addition to work on “Helena”, “Lazy Daze”, “Rocking Horse” and “Aquaticus”. Invoices were issued on work and in some cases moorings from this period to which I will refer. Moorings were also charged to the motor-sailer “Welcome II” on the inside of the pontoon, and electricity was not only supplied to the land for our own use, but also to the other boats.

....

12.

In September 2001 the Dutch Barge “Draak” the sale of which we had brokered and which we brought up from South Dock, was moored to the pontoon and supplied with electricity while the new owners were stripping and refitting it. Moorings and electricity were invoiced for and I shall refer to these.

13.

For a couple of years “Rocking Horse” had a tenant (Simeon), who despite occasional outbreaks of temper proved to be the most useful and helpful of this boat’s caretakers. He extensively revamped the landscaping, kept the land very tidy and always co-operated with us during the continuous work that was going on in front of and alongside of him.

14.

In June 2002 a narrowboat “Dee” moored alongside “Draak” while we did work on it, and though having a place within the basin spent much time on the outside of “Draak” due to the owner’s wish to go cruising often. Though we had explained to “Draak” that this was a situation to be expected, they became upset at sharing the facilities and moved away. I will refer to invoices from this period.”

At the trial Mr Moore referred to the BMS invoices at pages 191 to 246 of bundle H. These cover the period from 2^nd October 1997 to 2006. They show that BMS was carrying out work on vessels and/or charging for moorings during that period, although they do not show where the work was done or where the moorings in question were located. Of those that are legible, four relate to 1997; five to 1998; fourteen to 1999 (eight of which concern work on “Chester” and one of which relates to work on “Lazy Daze”); eleven to 2000; five to 2001; four to 2002; one to 2003; six to 2004; one to 2005; and three to 2006. Mr Moore also referred to the photograph at page 180 of bundle G, which he said was taken in 1996-1997 and which shows a catamaran and a dutch barge moored on the outside of boats moored against the Blue Land.

Some of BWB’s witnesses gave evidence in relation to the use made of the Blue Land by BMS. Mr Carr says in paragraph 10 of his witness statement that to the best of his knowledge and recollection “the boatyard did not use the Blue Land for working on boats. Boats were moored against the pontoon whilst waiting to get in and out of the boatyard and all boats were then worked on in the boatyard so far as I know”. He said in cross-examination that he didn’t see vessels moored alongside the Blue Land being worked on. Rachel Murray says in her witness statement that sometimes boats would be moored against the pontoon for several weeks but she did not recall any particular boats mooring permanently against the pontoon. It was put to her in cross-examination that from 1997 onwards there was quite a lot of boats being worked on on the outside of the pontoon. She remembered that boats were moored more permanently on the pontoon from 2003/2004 but she did not remember anything permanent from 1997. Dr Bowden did not remember the catamaran or the dutch barge shown in the photograph at page 180 of bundle H. She had no recollection of boats being moored on the outside of Lazy Daze. She agreed in cross-examination that boats were being worked on on the pontoon, but her evidence gave the strong impression that such work was intermittent as opposed to constantly going on. Ms Terzoli says in her witness statement that “When I moved to the pontoon in 2003 I can confirm that the boatyard which worked out of the basin did not use the Blue Land for any purpose other than for occasional access to the pontoon when they would walk down the towpath and across the Blue Land. Very occasionally the boatyard would work on a boat which would be moored on the outside of my vessel on the [canal] and they would place work items on the pontoon whilst they were carrying out those works. I can however confirm that the boatyard did not permanently keep any items on the Blue Land unless Keith, the engineer who worked for the boatyard, was carrying out some specific work to a vessel.”

I find the following facts. Up to 1996, when the pontoon was installed, the only use made of the Blue Land by BMS was the occasional temporary mooring of vessels pending being able to get them into Workhouse Dock. There is no evidence of any works being undertaken to any such vessels whilst so moored. Mr Farrow’s evidence, which I accept, was that on his initial visits to the Blue Land from January 1996, there was “nothing to suggest [the Blue Land] was anything other than the dead end of the towpath”, and “No-one was using the Blue Land for any purpose other than as the end of the towpath and for Rocking Horse and Lazy Daze to moor up to it”. However, once the pontoon was installed in 1996, BMS began to carry out work on vessels moored against either the Blue Land or the pontoon and used the Blue Land for the purpose of access to and from such boats and the occasional storage of materials, tools and equipment. The busiest years were 1999 and 2000, after which the work appears to have decreased. In that regard, I accept the passage from Ms Terzoli’s evidence which I have quoted above as an accurate description of the state of affairs in 2003 when she arrived. I should also mention that at some point BMS ran an electricity cable or cables into and across the Blue Land for the purposes of supplying electricity to vessels on the pontoon and also to “Lazy Daze”.

The BMS invoices relied on by Mr Moore further indicate, and I accept, that on occasion charges were made by BMS for mooring. Ms Terzoli’s evidence was that she was charged by BYB2 for mooring on the canal side of the pontoon when she arrived in the Autumn of 2003. It is possible that others were charged for mooring against the canal side of the pontoon during period 3, but there is no reliable evidence of this, nor is there any evidence that BMS or Ridgeways ever charged anyone for mooring against the Blue Land. Indeed, I understood Mr Moore to accept in closing that no such charges were made. It is fair to say that Mr Moore relied in cross-examination on the documents at pages 2 to 5 of bundle E and 481 to 482 of bundle F as showing that BWB had itself advertised the berths occupied by the two canal boats (Rocking Horse and Lazy Daze) as “private commercial” moorings of an “online towpath” type, listed under “Ridgeway Moorings, Brentford”. There is no evidence as to how this came about or when it occurred, but in any event I do not think it takes matters any further given that both boats in fact paid mooring fees to BWB and not to BMS/Ridgeways.

In my judgment, BMS’ activities in relation to the Blue Land over the relevant period did not amount in law to possession of the Blue Land for the purposes of acquiring title by adverse possession, or indeed, anything approaching it. First, as regards the Blue Land itself, those activities were very limited. BMS was not, in my judgment, in control of the land in any real sense, nor was it holding itself out so to be. Secondly, as appears from my earlier findings of fact, BMS was simply one of a number of users of the Blue Land over the relevant period. Other users included the owners or occupiers of Courage, Rocking Horse and Lazy Daze, all of whom paid mooring fees to BWB. It is significant, in my view, that when Mr Radley-Collis applied for registration in 1998, he did so jointly with Rachel Murray, who was not connected with BMS, and he did not rely on BMS’ marine activities as supporting his claim to adverse possession. Moreover, Ms Murray’s statement in her statutory declaration that she and Mr Radley-Collis had “occupied and used the Property openly, to the exclusion of all others (except for our licencees)” is wholly inconsistent with BMS or Ridgeways having used the Blue Land for any purpose during the same period.

As I understand it, BYB2 does not rely on any particular act of Ridgeways other than through BMS. If that is wrong, however, there is no evidence of any such act. Mr Newing’s draft statutory declaration does not advance matters in relation to the Blue Land. Moreover, I have already referred above to Mr Radley-Collis’ evidence, which I accept, that when he spoke to Mr Newing in 1996 regarding the pontoon, Mr Newing said that the Blue Land was nothing to do with him. It is clear from this, in my judgment, that at least at that time, Ridgeways did not regard itself as in possession of the Blue Land or, indeed, as the owner of the Blue Land.

For these reasons, I reject BYB2’s claim that BMS or Ridgeways acquired title to the Blue Land by adverse possession in period 4.

Period 5 (2003 to date – BYB2)

I make the following principal findings of fact as to the use of the Blue Land in relation to period 5.

First, to the extent that BYB2 has used the Blue Land in period 5, such use has been limited to crossing it in connection with the carrying out of work to boats moored on the pontoon, the occasional storage of tools and materials and the running of an electricity cable or cables in connection with the boats.

Secondly, in 2004 a Mr Paul Pritchard was living on “Kamelya”, which was owned by a Ms. Olcay and moored on the inside of the pontoon. Following a dispute between him, Ms Olcay and Mr Moore, Mr Pritchard was banned from the boatyard and moved onto Rocking Horse, then empty. Thereafter he constructed a wooden shed on the Blue Land and he and Ms Terzoli created a garden on the Blue Land. Ms Terzoli describes this in detail in paragraphs 22 to 24 of her witness statement, which I accept as accurate. I also accept her evidence that none of the work was done under the direction of BYB2 or Mr Moore. The garden was still in place when she moved away at the end of September 2006.

Thirdly, in and after 2005 the various boatowners and occupiers, including Ms Terzoli, Mr Pritchard and Dr Bowden, held barbeques and parties on the Blue Land.

Fourthly, in 2004 or 2005 (the evidence is not consistent as to the date) Mr Moore put up low wrought iron gates to the Blue Land which were approximately three feet in height. He said in cross-examination that they replaced both the section of fence, to which I have already referred above, and the previous gate, which by then was missing. The various occupants of the boats moored against the Blue Land did not object because (as Ms Terzoli put it in her witness statement and as I accept) “.... often people walking down the towpath would wander down onto the Blue Land to the end of the towpath which was a dead end after the steps and realise that they could not go any further and I would speak to them and direct them over the footbridge to carry on with their walk. It therefore seemed sensible for there to be a gate to try and stop people continually walking down to the end prima facie the towpath and having to turn around and retrace their steps”. The gates were not kept locked. By 17^th October 2005, when Mr Bannister visited the Blue Land and took various photographs, the gates had been extended to about six feet in height by means of a metal extension which had been welded on. That was also done by or at the instigation of Mr Moore. The gates were not initially kept locked. In 2006, however, Mr Moore began to lock them.

Fifthly, in or about February 2007 Workhouse Dock was emptied of boats. Mr Moore, Ms Olcay and various other boats then moored alongside the boats already moored against the Blue Land. A new lock was put on the gate. Dr Bowden told me, and I accept, that she asked Mr Moore for a key but was refused.

I should finally refer to the acts of Mr Moore himself. I have already mentioned above that he first arrived in Workhouse Dock in 1990. His evidence in cross-examination was that the Blue Land was visible from his mooring and that his practice was to warn off anyone who he knew had no reason to be there. From the time he was first employed by BMS in the mid-1990’s, he was protective, as an employee of BMS, of people coming and going. He was then asked in what way between the mid-1990’s and the subsequent locking of the gates would someone have been able to identify the Blue Land as being claimed by Ridgeways or BYB2. He said that this would be purely by the actions of anyone such as he who accosted them. He wouldn’t stop people going to the boats. But if it was fairly evident that someone had no legitimate reason to be on the land, he would ask them what they were after and direct them over the footbridge. There were occasions on which he called the police. Indeed, he said that it was at the police’s suggestion that he imposed the security at the site (which I took to be a reference to the gates). He gave evidence of having challenged persons coming onto the land in particular on three occasions in 1990, one in the mid-1990’s and one in 2001. He was asked whether he did so as a concerned boatowner or on behalf of one of the companies. His answer was that he did it as a concerned tenant of Ridgeways, by which I understood him to mean the right given to him by Ridgeways to moor his boat in Workhouse Dock. He was asked whether he relied on anything else to show that a person would be aware that BYB2 was claiming the land as its own. His answer was nothing, apart from the gates.

I do not consider, for much the same reasons as before, that BYB2 has established that it was in adverse possession of the Blue Land, at least up to the time the gates were locked in 2006. Nor am I satisfied that in acting in the manner described in the preceding paragraph, Mr Moore is properly to be regarded as acting on behalf of BYB2 as opposed to in his personal capacity as a boatowner. I accept that BYB2 has a stronger case for saying that it, or Mr Moore, was in possession of the Blue Land following the locking of the gates in 2006, but the evidence as to the circumstances in which that was done and what has happened afterwards is rather thin on the ground, and I do not feel able to make a finding either way. Nor, given my conclusions in relation to periods 1 to 4, is any such finding necessary.

Relief

For the above reasons, I reject BYB2’s claim to have acquired title to the Blue Land by adverse possession during any of the periods relied on. That leaves only the question of what relief, if any, I should grant. Given my finding that BWB is the paper title owner of the non-bridge land, BWB clearly has a sufficient interest to seek a declaration that BYB2 has not acquired title by adverse possession in relation to that land. I was initially concerned as to whether BWB has a sufficient interest to seek a similar declaration in relation to the bridge land, given it has not established that it has any title to that land. In my judgment, however, BWB does have such an interest. First, I was told at the trial that there are other proceedings pending between BWB and Mr Moore personally which are due to be heard in this Division early next year, in which one of the issues concerns the right of BWB (as the owner or operator of the canal) to levy mooring charges in relation to vessels moored against the Blue Land and the pontoon, and the question whether BYB2 is the owner of the Blue Land is relevant to that issue. Secondly, I was also told that BWB may wish to apply in due course to be registered as proprietor of the Blue Land, including the bridge land. In that event, BYB2 will inevitably object on the grounds that it has title by adverse possession. It seems to me for that these two reasons, BWB has a legitimate interest in the question whether BYB2 has title to the Blue Land and therefore that it has sufficient locus to seek appropriate declaratory relief.

For the above reasons I propose to make declarations to the effect that (1) the legal title to the non-bridge land is vested in BWB, and (2) BYB2 has not acquired title to the Blue Land or any part by adverse possession.