Smith, Regina (on The Application of) v Land Registry (Peterborough Office) and Another: CA 10 Mar 2010

The appellant had lived in a caravan on the verge of a byway and had been here for more than twelve years. He appealed against rejection of his request for possessory title. He said that there was no support in law for the maxim that adverse possession was not available against land forming part of a public highway.
Held: The appeal failed. To succeed the appellant must show two things: (1) that under the common law the title of the highway authority may be extinguished by adverse possession – and this means showing that a highway can be brought to an end in this way; (2) that the public’s right to use the highway is simultaneously extinguished. However a squatter can only acquire the title of the owner whom he has dispossessed. The public right to use the highway cannot be terminated by action which affects some members only of the public because the right belongs to them all, and the public is an ever-changing class.
Arden LJ discussed the maxim ‘once a highway always a highway’, saying: There is a long-standing saying ‘once a highway, always a highway’. English law has since at least the time of Bracton in the thirteenth century regarded ‘the King’s highway’, now the Queen’s highway, as incapable of ownership by any person other than the King or Queen. It is commonly assumed that there can be no adverse possession of any part of a highway . . However it is not possible to point to any decision from which the maxim is derived, and, moreover, there is no exception for public highways in the provisions facilitating adverse possession. Furthermore it is a common experience from time to time to find a highway wholly or partially obstructed for a temporary or permanent purpose, for example, by cafe tables, items displayed for sale, salt bins, street markets, public conveniences or other obstructions. In other words, there are situations in which people have, or appear to have, a right to occupy the highway to the exclusion of others. The saying that ‘once a highway always a highway’ cannot therefore be taken as an absolute and universal rule. There are some circumstances in which a highway can cease to be such on a permanent or temporary basis. One of the ways in which this might occur is under licence from the local authority granted under some statutory power. But can it occur through adverse possession?

Mummery, Arden, Elias LLJ
[2010] EWCA Civ 200, [2010] NPC 31, [2010] 11 EG 121, [2010] 3 All ER 113, [2010] 21 EG 92, [2010] 3 WLR 1223, [2011] 1 QB 413
Wildlife and Countryside Act 1981, Highways Act 1980 263(1), European Convention on Human Rights 8
England and Wales
CitedDirector of Public Prosecutions v Jones and Lloyd HL 4-Mar-1999
21 people protested peacefully on the verge of the A344, next to the perimeter fence at Stonehenge. Some carried banners saying ‘Never Again,’ ‘Stonehenge Campaign 10 years of Criminal Injustice’ and ‘Free Stonehenge.’ The officer in charge . .
Appeal fromSmith, Regina (on the Application of) v The Land Registry (Peterborough Office) Admn 13-Feb-2009
The applicant sought judicial review of the cancellation of his application for first registration of land by adverse possession. The application had been rejected because a public right of way existed through it, and the claimant had not shown the . .
CitedRolls v Vestry of St George the Martyr, Southwark CA 14-Jun-1880
The plaintiff owned land over which were two old streets. He obtained an order from the Magistrates stopping up the stopping up and diversion of parts in return for new streets matching the proposed area layout. The defendants, in whom the land had . .
CitedDawes v Hawkins 6-Jul-1860
A highway had been unlawfully stopped up by the adjoining owner and diverted by another route. It was held that the public had a right to deviate on to the adjoining land. The road was subsequently diverted back to its original route. Some years . .
MentionedBakewell Management Limited v Brandwood and others HL 1-Apr-2004
Houses were built next to a common. Over many years the owners had driven over the common. The landowners appealed a decision that they could not acquire a right of way by prescription over the common because such use had been unlawful as a criminal . .
CitedLondon Borough of Bromley v Morritt CA 21-Jun-1999
The defendants appealed against orders relating to the construction of a sewage pipe through their garden under powers given under the Act. The defendant had later blocked the pipe and the authority sought to recover the costs of repair. He claimed . .
CitedSeekings v Clarke 1961
Lord Parker CJ said: ‘It is perfectly clear that anything which substantially prevents the public from having free access over the whole of the highway which is not purely temporary in nature is an unlawful obstruction’. . .
CitedSuffolk County Council v Mason HL 1979
The House considered the status of a pedestrian right of way through a caravan site to a beach, and the 1949 Act: ‘The sections which follow section 27 deal with the further steps which have to be taken before the definitive map is completed and . .
CitedTithe Redemption Commission v Runcorn Urban District Council CA 1954
The court considered the effect of a strip of land being designated as a public right of way. Denning LJ said: ‘The statute . . vest[s] in the local authority the top spit, or perhaps, I should say, the top two spits of the road for a legal estate . .
CitedRangeley v Midland Railway Company CA 1868
Where there is a highway, the surface of the land or other property is dedicated to public use.
Cairns LJ described a highway as: ‘a dedication to the public of the occupation of the surface of the land for the purpose of passing and . .
CitedSt Ives Corporation v Wadsworth ChD 1908
A piece of land bordered by a river a bridge and a highway was fenced off by the highway authority. The defendant had used the land as part of his adjoining house and land. The plaintiffs sought clarification that they could remove the fence as they . .
CitedSeddon v Smith 1877
Adverse possession was claimed over land subject to a private grant of a right of way. The defendant had a paper title to a strip of land along Molyneux Lane. The plaintiff sought damages for trespass, claiming for wrongful abstraction of coal from . .
CitedRoberts v Swangrove Estates Ltd and Another ChD 14-Mar-2007
The court heard preliminary applications in a case asserting acquisition of land by adverse possession, the land being parts of the foreshore of the Severn Estuary.
Held: A person may acquire title to part of the bed of a tidal river by . .
CitedJ A Pye (Oxford) Ltd and Others v Graham and Another HL 4-Jul-2002
The claimants sought ownership by adverse possession of land. Once the paper owner had been found, they indicated a readiness to purchase their interest. The court had found that this letter contradicted an animus possidendi. The claimant had . .
CitedSt Marylebone Property Co Ltd v Fairweather HL 16-Apr-1962
To defeat a defence of adverse possession, the plaintiff must succeed in an action which itself had been commenced within the twelve year period. A squatter does not succeed to the title that he has disturbed: by sufficiently long adverse possession . .
CitedHarvey v Truro Rural District Council 1903
Land which had been built over was part of the public highway. The highway authority had as far back as living memory extended used a portion of a strip alongside a highway for the purpose of depositing material for the repair of the roads. A few . .
CitedHaigh v West CA 1893
The court was asked about rights of pasturage granted over a public highway. The neighbouring land owner, and Lord of the Manor, claimed damages from the tenant for trespass in pasturing his sheep on the road. There was no evidence in whom the soil . .

Cited by:
CitedFortune and Others v Wiltshire Council and Another CA 20-Mar-2012
The court considered the contnuation of public rights of way against the new system of the ending of certain unrecorded rights.
Held: he appeal failed. ‘As a matter of plain language, section 67(2)(b) does not, in our judgment, require the . .

Lists of cited by and citing cases may be incomplete.

Land, Registered Land

Updated: 10 December 2021; Ref: scu.402576