REF/2007/0760

The Adjudicator to Her majesty’s Land Registry
LAND Registration act 2002

IN the matter of a reference from hm land registry

BETWEEN

Hugh William Findlay Prescott and Tessa Prescott

APPLICANTS

and

Robert John Anderson

RESPONDENTS

Property Address: Land at Haye Farm, Lyme Regis, Dorset
Title Number: DT318001

Before: Mr Cousins sitting as The Adjudicator to HM Land Registry

Sitting at: Yeovil County Court
On: Tuesday 7th October 2008

Applicant Representation:	Mr Michael Berkley, of Counsel, who was instructed under direct public access   
Respondent Representation:	Mr David Cotterell, of Counsel, instructed by Messrs Thring, Townsend, Lee and Pembertons, Solicitors

DECISION

KEYWORDS: Doctrine of Accretion and Diluvion – Acts of Avulsion – changes in the flow of the River Lym in Uplyme – whether gradual and imperceptible or sudden and dramatic - 
Cases referred to: Ford v Lacey ((1861) 7 H & N 151; Southern Centre of Theosophy Inc v The State of South Australia ([1982] AC 706; Attorney-General v. M’Carthy ([1911] 2 I.R. 260); Secretary of State for India v. Raja of Vizianagaram (1921) L.R. 49 Ind. App. 67; R v Lord Yarborough (1828) 2 Bligh N.S. 147; 

THE APPLICATION
1.	Since its purchase in 1996 Mr Hugh William Findlay Prescott and Mrs Tessa Prescott (“the Applicants”) have been the registered proprietors of land and premises known as and situate at Middle Mill Farm (“Middle Mill Farm”) registered by first registration at HM Land Registry with title absolute under title number DT238040. Mr Robert John Anderson (“the Respondent”) is the registered proprietor of a parcel of land (“the Disputed Land”) which has been referred in the course of these proceedings as “Piggy Island” or “Pig’s Island”. The Disputed Land was registered at HM Land Registry with title absolute by first registration in 2004 under title number DT318001. It is shown as the parcel coloured blue on the official copy of the title plan issued by the Land Registry on 25th January 2007 and the official copy of the title plan to DT238040 excludes the Disputed Land.

2.	By an application made in Form AP1 dated 10th December 2006 (“the Application”) the Applicants seeks the alteration of the register by the removal of the Disputed Land and its inclusion within title number DT238040.  The Respondent objected to this by letter dated 2nd March 2007. 

3.	From 1983 the Respondent formerly owned land and premises known as Haye Farm situate on the west bank of the River Lym (“the River”) of which the Disputed Land formed part. That parcel became separately registered under title number DT318001 in about 2004. This occurred when the Respondent became aware that the Applicants were asserting title over it in and at that stage he was proposing to sell the main part of Haye Farm. I am informed by Counsel that he was anxious to avoid a boundary dispute which might have complicated any prospective sale.

4.	The basis of the Application is that the River, which delineates the paper title boundary between the two titles, has changed course. The Applicants say that the course of the River has changed naturally over time through a boggy area of land within the Respondent’s title known as “Bumpy Field”, and that consequently by virtue of the doctrines of accretion and diluvion they have obtained title to the Disputed Land.  The Respondent claims that the change in the course of the River occurred by avulsion in that it happened suddenly in about 1999 and in any event after 1996.  Accordingly, the change in its course was not by gradual and “imperceptible” means over a period of time, but coincided with reinforcement works undertaken to the east bank of the River below the weir, and works above the weir and to the weir itself. This followed the Applicants’ acquisition of Middle Mill Farm. Thus the Respondent asserts that the principles of accretion and diluvion do not apply to the circumstances which have occurred. 

5.	I held a site inspection of the locus in quo on 9th September 2008. I also should state that the Respondent has sadly died since the hearing. 

THE RESPECTIVE CASES FOR THE PARTIES
The Applicants’ Case 
6.	The case for the Applicants is straight forward. When they purchased Middle Mill Farm in 1996 the River had already changed its course, so that they assert that it has been running in its current course since at least the date of their arrival.  In other words there has been a natural progression of nature in that there has been a re-alignment of the predominant flow of the River which has gradually changed from its original course to the current channel with the creation of an ox-bow.  The original course of the River now constitutes a meander (“the Meander”), which still continues to define the paper title between the two properties, in contradistinction  to its current course which has taken a more direct route of flow whereby a cut-off (“the Cut-off”) has been created isolating the Meander. This process of accretion and diluvion has resulted, therefore, in the alteration in the position of the boundaries between the two properties so that the current course of the River through the Cut-off now defines the boundary. This means that the Applicants have a legitimate claim to be registered as the proprietors of the Disputed Land. 

7.	The Applicants also contend that after the purchase of Middle Mill Farm they undertook certain works in order to stop the erosion of the east bank of the River in the vicinity of their house, such works being done with the consent of the Environment Agency.  These works involved the construction of a concrete platform at the River’s edge and bank stabilisation works. They assert that such works became necessary because the water flowing directly through the Cut-off and across the weir caused the bank erosion, whereas had the flow of water continued along the Meander it would have been at a slower pace. Further, it is contended that such works also involved an attempt to reinstate the Meander aimed at encouraging the continued flow of water by digging it out with the use of a JCB, but these works did not achieve this result. Reference is also made to the installation of a bar in the River below the Meander.

8.	In short, since before the purchase of Middle Mill Farm, the Meander has been no more than a ditch which has on occasions held quantities of water seeping from the fields above. There is now no flow of river water at any time into, along, or out of the same. 

9.	Thus the essential plank of the Applicants’ case is that the change in the flow of the River has been gradual and imperceptible over a period of time in accordance with the doctrine of accretion and diluvion.

The Respondent’s case
10.	For his part the Respondent rejects these assertions on the following basis –

(1)	The criteria for the application of the doctrine of accretion and diluvion have not been met in that the alteration to the flow of the River whereby the development of the Cut-off as the main watercourse leading to the decline of the Meander has been substantial, recognisable and sudden, amounting to avulsion or a series of avulsions;

(2)	The various works undertaken by the Applicants, including the dumping of spoil and stabilisation works to the western bank of the Cut-off, demonstrate sufficient intention on the part of the Applicants amounting to human intervention thereby preventing the application of the doctrine of accretion and diluvion in the circumstances;

(3)	The changes in the topography and morphology in the area of the River have not in fact resulted in the Meander becoming a non-existent watercourse.  On the contrary the Meander remains an active watercourse recognisable as a boundary feature between the respective properties in which water continues to flow especially during periods of flooding of the River.  It also serves the purpose of  draining the Applicants’ land to the north;

(4)	Further or alternative, the Respondent submits that it would not be just to alter the register in these circumstances based upon the provision of the Land Registration Act 2002, Schedule 4, paragraph 3 (2);

11.	I should also add that the Respondent has asserted that the avulsion has been encouraged by an unauthorised reduction in the height of the weir by the removal of the top two tiers of stonework as part of the works undertaken after 1998.  

12.	In effect,  therefore, the avulsive event, or events, upon which the Respondent relies in support of his case that the changes to the River were not imperceptible, has resulted not only from the sudden forces of nature but also from these various works undertaken by the Applicants after their purchase of the Middle Mill Farm.

THE ISSUES
	
13.	The following issues therefore arise for determination in this case:-

(1)	Were the changes in course of flow of the River gradual and imperceptible so that the doctrine of accretion and diluvion should apply, or were the changes resultant upon an act, or acts, of avulsion? 

(2)	Were any works carried out by or at the instigation of the Applicants with the intention of encouraging the alteration of the course of the River from the Meander to the Cut-off? 

(3)	Does the old course of the River through the Meander remain a recognisable watercourse particularly during periods of flooding and at other times for the purpose of draining land to the north and therefore sufficient to continue to mark the boundary between the properties?

(4)	In any event would it be just in the circumstances to leave the register unaltered on the basis that the Respondent is a proprietor in possession? 

THE EVIDENCE
14.	As the factual evidence is of crucial importance to the outcome of this case, it is necessary to examine it in some detail. I should state that there is little contemporary documentary evidence in support of either case, but the historic mapping evidence that is available prior to 1996 supports the Respondent’s case as to the route of the River through the Meander with no physical representation of the Cut-off route.

The Applicants’ evidence
15.	The following witnesses were called in support of the Applicants’ case - the Applicants themselves, together with Mr Lake, Mr and Mrs Blackmore, Mr Ashe, Mr Cottam. Mr Hussey, Mr Mostyn and Mr Pennington did not attend the hearing and their evidence was relied upon by the Applicants as part of their case.  As they did not attend for cross-examination I need to take that fact into account as to the weight I give such evidence.  

The Applicants
16.	The first Applicant gave evidence and relied upon his statement dated 15th December 2007 (at page 43 of the Bundle) together with a number of documents (at pages 101-117).  Until shortly before the hearing, the Applicants were unrepresented by Counsel and Solicitors, but it is apparent from the documentation that they were aware of the legal principles relating to the doctrine of the accretion and diluvion, and indeed in correspondence cited one of the leading cases in this area of law. It should be noted that the Applicants’ knowledge of the area in question only arises from about the time of the purchase of Middle Mill Farm in 1996 and some of the  information provided by both Applicants clearly pre-dated their purchase of Middle Mill Farm of which they had no direct knowledge.

17.	In essence the Applicants assert that there was a gradual change in the flow of the River over a period of time in that the creation of the Cut-off at the point of the ox-bow and the reduction of the water flow in the Meander was a gradual process.  They deny that this had been encouraged by any works to the River banks and the reduction in the height of the weir.  The Applicants assert that there was a history of change in the course of the River and that for a period of some length the Cut-off route only flowed at times where there was a heavy volume of water in the River.  The River gradually changed it course so that on occasions it would flow through both channels but eventually the flow in the Cut-off route predominated over the flow in the Meander. 

18.	The first Applicant described in his evidence how he undertook stabilisation works with the consent of the Environment Agency which, as I have stated above, involved a bank reinforcement scheme to the east bank below the weir and in the vicinity of their house, and also certain works above the weir.   As he stated in his evidence he wished for the River to flow around the original course in the Meander and to that end attempts were made to unblock the entrance to it and to remove shale, to which Mr Ashe also made reference during his evidence.  To illustrate this he referred during the course of his evidence to a map which he drew himself dated May 1998 (at page 124 of the Bundle) and to a letter written by him to the Environment Agency dated 19th May 1998 (at page 115).  He was adamant that there was no water flowing through the Meander at the time of the purchase of Middle Mill Farm and that he wished to excavate it so as to encourage the water flow through it.  He said that the Meander in fact is now much deeper than it was when he purchased the property.  He was also adamant that he did not remove the top two tiers of the weir, and although he asked the Environment Agency to re-point it, these works were not actually done. 

19.	The first Applicant agreed that eventually spoil was put into the Meander (this being visible on the site inspection) but this was not put there until 2004.  This had emanated from the new patio area constructed as part of the bank stabilisation scheme and which had originally been put into the field on the east bank.   In 2004, however, trees were planted in that field and the spoil needed to be removed.  Thereafter when the trees  were planted in the field adjoining the eastern bank the spoil was removed and put into the Meander.

20.	 During the course of cross-examination, reference was made to the letter dated 19th May 1998 from the first Applicant to the Environment Agency where he refers to the fact that there had been considerable erosion over the previous 18 months to the west bank of the River above the weir and the east bank below the weir principally due to severe storms during that period and the creation of large shale deposits opposite the eroding areas. He said that “…these shale deposits have accelerated the erosion process by forcing the River to travel fast through a narrowing channel…”  and that the River then flowing through the new course has itself created further erosion below the weir. He also refers to the proposal that the proposed improvements would include the reinstatement of the flow of water “along its original low water course by lowering the shale deposit that has built up over the years causing this section of River bed to be isolated from the main River”. The emphasis in this letter would therefore seem to suggest that the process had been sudden.

21.	The first Applicant also insisted that the photographs, and in particular the photograph at page 111 of the Bundle taken by them in about 1996/1997, demonstrates a body of water in the Cut-off.  In short, the River had switched course completely before their purchase of Middle Mill Farm in 1996.

22.	It is asserted that the Respondent apparently never raised any query in so far as these environmental works were concerned and it is part of the Applicant’s case that they had obtained agreement from the Respondent to undertake works to the western bank to the River. I should state that this is denied by the Respondent. 

23.	The first Applicant also denied in cross-examination that the main purpose of effecting works to the River was to enhance privacy to their house by ensuring that the screen of trees on Pigs Island remained.

24.	In short, therefore, the essential aspect of the Applicants’ case is that the course of the River had changed prior to their purchase of Middle Mill Farm and that the change of course of the River from the Meander to the Cut-off had occurred very gradually over a long period of time.  The Meander was not full of water – it was bone dry.  It did not function as a River.  When they tried to reinstate the flow to the Meander the exercise failed and only a small amount of water – a trickle – passed through and did not last.

25.	Such evidence was supported by the second Applicant who also said, inter alia, that the Meander was over grown – “awful and virtually impenetrable”.

Mr Lake
26.	Mr Lake attended the hearing and relied upon his statement contained in a letter dated 19th November 2007 (at page 57 of the Bundle).  He viewed Middle Mill Farm as a prospective purchaser in about 1996, and according to him, the Meander had already been established as a ‘moat type ditch’ not filled with water. The River had by that stage occasionally broken through and flowed along the Cut-off.  It is suggested by Counsel for the Respondent that his evidence is not particularly convincing and that there may be some confusion in his evidence as to the date by which the River had “broken” through the ox-bow so as to create the Cut-off, although counsel for the Applicants rely upon his evidence that it was quite clear that by 1996 the River had cut off the Meander and taken the direct route to the weir.

Mr and Mrs Blackmore
27.	The evidence of Mr. and Mrs. Blackmore is contained in written statements in the form of letters both dated 16th February 2008 which are similar in form (see pages 50 -52 of the Bundle).  Mr. Blackmore alone was cross-examined on such evidence.  He asserted that, in effect, the Disputed Land had become an island in the 1950s in that water flowed both sides of it.  He said that it was always necessary to cross water lying in the Cut-off since the late 1950’s.  This occurred not only when there was a high flow of water, but at other times.  He said that he played a lot in the area and used to jump or paddle across from Bumpy Field to Piggy Island when he was a child. 

Mr Ashe
28.	Mr Ashe relied upon his witness statement contained in a letter dated 28th August 2007 (at page 49 of the Bundle).   He said in evidence that he undertook works during 1997 and 1998 in order to try and clear and re-instate the Meander.  He said that when he was on site the only water that was flowing was through the Cut-off, and the Meander (which he described as a “ditch”) had no water flowing through it.  He also described that he witnessed erosion to the western bank adjoining Bumpy Field when part of it collapsed overnight and he attempted to stabilise that bank.  His work included an attempt clear out the  “ditch” so as to reinstate it, but as he stated he gave up trying to do this and this could not be done unless a lot time and money was spent in order to attempt to continually divert it.  He also denied having dumped spoil in the Meander.  Further, he stated that he was not involved in constructing the bar nor did he reduce the height of the weir by the removal of layers of stonework.

Mr Cottam
29.	Mr Cottam also gave evidence at the hearing and relied upon his written statement contained in a letter dated 16th November 2007 (at page 53).  Mr Cottam was engaged in the engineering work commissioned by the Applicants between 1996 and 1999 with the view to stabilising the eastern bank of the River  below their house.  He denied that he or anybody else were involved in the removal of the top courses of the weir – nor did he re-point it.  He said that the Meander was dry and completely blocked by debris consisting of mud, stones and foliage, and that this was a natural feature and there had been no dumping.  This blocking of the Meander had occurred before he started any work on site. He said that, on instructions, he had tried to re-instate the Meander by excavation with a JCB.   He said that whilst he was engaged in these works he never saw the Respondent.  He also said that spoil had been dumped in the field above the eastern bank of the Meander above the Applicants’ house where trees were planted. 

Mr Hussey
30.	Mr Hussey was unable to attend the hearing but he provided a statement in the form of a letter dated 9th November 2007.  In paragraph 2 of that document he states that during his childhood (probably in the 1970’s) “… the River always used to run round the back… of Pig’s Island”.  This would seem to indicate that at that time historically the River ran predominately along the Meander.  Further, he describes a connection between Bumpy Field and Pig’s Island being a low-lying piece of ground that was occasionally inundated after a periods of heavy or prolonged rainfall.  In other words, Mr Hussey describes the existence of an island during heavy rainfall in that although the River ran mainly through the Meander, on occasions the area now forming part of the Cut-off was inundated with water causing Pig’s Island to become a true island. Mr Hussey also goes on to describe (in paragraph 5) that there was a permanent breaching of the area between Bumpy Field and Pig’s Island which, according to his evidence, was in about December 1997. This led him to be concerned as to the erosion of the land bordering the River in the vicinity of the Applicants’ house.  This later resulted in bank stabilisation  works being undertaken and a terrace was eventually created at that position.

Mr Mostyn
31.	Mr Mostyn did not attend the trial, but the Applicants relied upon his statement dated 21st November 2007 (at page 59 in the Bundle).  Mr Mostyn is a neighbour with land also abutting the River.  He is therefore the only witness (apart from the Applicants and the Respondent) whose property actually abuts the River. In his statement he stated that what described as the “old riverbed…has been unused for a very long time” but added that he could not say precisely when the change occurred.  He suggested that from his recollection the course of the River was established in its new direction some 16 or so years previously, i.e. about 1991, and that the change in course was a natural event. 

	Mr Pennington
32.	Mr Pennington’s evidence is contained in a witness statement dated 19th November 2007.  He has known the area since 1979 having lived in Lyme Regis since then.  He says that the Cut-off has followed its current course since at least 1992 and, he believes, for a longer period. Similarly the Disputed Land has been an island since then and separated from Bumpy Field.

The Respondent’s Evidence
	The Respondent
33.	The Respondent’s is evidence is contained in a witness statement dated 14th December 2007.  He had lived at Haye Farm since about 1983. He made reference to a number of photographs which had been taken by him at various times – the earlier ones in 1951 and 1963, and the later taken in June 1999 and September 2008. The ones taken in September 2008 show water in the Meander after rain. Some of these photographs were also taken of the weir and were relied upon in support of his contention that originally there were 13 stone courses to the weir but that at least two of those courses had been removed at some stage at the instigation of the Applicants.  This allegation was denied by the Applicants.  

34.	The Respondent said that in 1999 he discovered that there had been a dramatic change in that water had started to flow through the Cut-off and that he was horrified on seeing this. He said that he could not say precisely when this has occurred as he was not there at the time but he thought that the change of course of the River probably happened in about June 1999. Despite this, however, he apparently did not contact the Applicants although his agent did contact them in so far as the engineering works were concerned (see the letter dated 17th November 2000 at page 133 of the Bundle) where there is no mention of the change in its course.  Prior to that its primary course was through the Meander.  He repeated that he did not see this event, but the course had altered over a short space of time.  The court also had the benefit of seeing a video taken by Mr Anderson on the 29th June 1999 of the River. 

35.	He was firm in his stated position that the first knowledge that he had of a change in the course of the River dated from 1999 and that it was Mr Hounsell who had brought this to his attention.   It was this event that prompted the video recording.  

Mr Hounsell
36.	Mr Hounsell provided a statement dated 27th March 2008 and also gave evidence.  He acted as the Respondent’s agent.  He describes from his own knowledge the fact that the River changed its course in about 1998 –1999, which coincided with the works undertaken by the Applicants to its banks.  He said that the change in its course was a result of heavy rain.

Ms Cooper
37.	Ms Cooper provided a witness statement dated 27th March 2008, but did not give evidence at the hearing.  She knows the River well as she lives nearby and she regularly exercises her dogs there. She says that up to the middle to late 1990s the River used to flow in a “U” shape and there “lazy S” bends immediately upstream of the weir. During heavy rain, however, the River would overflow its bank at the bend and cut the corner and flow directly to the weir. When the River level dropped it would then resume its “normal meandering course”.  Its course then changed dramatically over a relatively short period of time. Ms Cooper could not give precise date when this event occurred shortly after a lot of work had been done in and along the riverbank by the owners of Middle Mill Farm.

Mr Palmer
38.	Mr Palmer provided a witness statement also dated 27th March 2008.  He lives locally and often walks in the area and used to swim in the River. He in effect confirms all that said by Ms Cooper as to the sudden and dramatic change in the River towards the latter half of the 1990s – prior to which the course had followed the Meander.  He also said that this change occurred within months of the works being done been done in and along the riverbank by the owners of Middle Mill Farm.

THE EXPERT EVIDENCE
39.	Both sides relied upon expert evidence.  The evidence of the experts appears in the Bundle following Tabs 40 and 41 and there seems to be no real issue between them other than whether the creation of the Cut-off and the decline in the importance of the Meander was a sudden or gradual event. 

Professor Quine
40.	The Applicants relied upon Professor Quine, who is an eminent geographer – he is Head of Geography and Professor of Earth Surface Science at the University of Exeter.  He unfortunately could not attend as a witness but I had the benefit of his short study headed “Case Summary of the Oxbow Lake at Middle Mill Farm….” which is appended to his letter dated 21st November 2007 (see pages 89 – 92 of the Bundle). He fails to state whether he actually inspected the site, and I must assume that he did not therefore do so. 

41.	Professor Quine refers in his letter to the fact that the River has been through a period of increased sinuosity resulting in the formation of tight-bended meanders, and at the present time, following the creation of the Cut-off, the Meander is now in a state of low sinuosity. The study itself concentrates on the hydrogeomorphology of oxbow lake formation, and the conclusions reached as to the circumstances appertaining to the River appear in three short paragraphs on page 2.  There he concludes that the creation of the Cut-off route is "... a classic example of the principles of the meander and the oxbow lake." He then adds that this “…completely natural process has most probably been taking place very gradually over a long period of time, and the eventual breaking through of the remaining narrow ‘neck’ of land would be inevitable, allowing the river to take the path of least resistance."

Mr Whalley
42.	The Respondent’s expert was Mr Whalley who is a director of Hydro-logic Ltd, a company specialising in hydrological services and hydrometric services. I should state that he does not provide any details of his qualifications in this field. He attended the hearing and gave evidence which was based on an inspection of the site on 16th November 2007. 

43.	Mr Whalley’s conclusions are contained in a preliminary report produced in the form of a letter dated 25th November 2007 (at pages 93 – 100 of the Bundle). In this he describes the underlying principle of oxbow lake formation but contemplates the possibility of artificial influence on the process. He says that "... the natural process of river realignment, leading to the isolation of meanders and formation of oxbow lakes, is usually the result of a rapid change in the predominant river course during a single high flow the event..." Following his inspection and reference to the available information (which he does not specify) he then goes on to conclude that "…the change in course of the River Lym on land owned by Mr Anderson largely conforms to this recognised process and that the final realignment of the channel occurred rapidly as a direct result of a high flow event on the River Lym... " he cannot, however, place any date on this event with any certainty. Mr Whalley then goes on to comment that the apparent "... change to the level of the weir crest which appears largely consistent with the current elevated position of the historical channel...". I shall deal with this aspect, below.

44.	In his oral evidence Mr Whalley stated  that silting-up normally takes place over many years and that the path of the Meander (notwithstanding the addition of the spoil dump) did not appear to conform to the natural process. He further described the effect of removing obstacles in the path of the flow of the river would have an impact in quickening the flow. He was convinced that there had been a single high flow event or possibly there were further high flow events which accentuated the process of avulsion.

45.	Thus, in short, the course change in the River was caused was by an avulsion, or small number of avulsive events. This, it is said by Counsel, accords directly with Mr Prescott's own mention of the "storm events" in his letter to the Environment Agency at page 115 of the Bundle, and supported by Mr Ashe in his evidence, as to the rapid erosion to the River bank. 

THE LEGAL POSITION

46.	The law applicable in the case is in effect agreed between the parties. The question of law to be resolved is whether the alteration in the course of the River arises by virtue of accretion and diluvion, or by acts of avulsion and therefore not “gradual and imperceptible”. The starting point for an analysis of these legal issues is to be found in the case Ford v Lacey ((1861) 7 H & N 151). This case relates to changes in the course of flow of the River Lea and consequently whether land formed in the process of accretion was in the parish of Walthamstow in the County of Essex, or lay in the County of Middlesex. The case reviewed the law and confirmed the proposition referred to by Martin B (Channell B concurring) who quoted Lord Hale in De Jure Maris (part 1, c 1),in the following terms that:-

"... if a fresh river between the lands of two lords or owners do insensibly again on one or the other side, it is held... that the propriety continues as before in the river. But if it be done sensibly and suddenly, then the ownership of the soil remains according to the former bounds.".

47.	In Southern Centre of Theosophy Inc v The State of South Australia ([1982] AC 706) although not directly in point on the factual issues, there was a comprehensive review of the authorities on the subject of accretion and diluvion. It was a case which concerned the recession of the high watermark of Lake George in South Australia, over a period of nearly 70 years. The dispute arose as to the ownership of part of the former lake bed which had become dry land following the connection of Lake George to the sea by a channel. If the exposed land passed by accretion to the Appellants (Southern Theosophy), whose title boundary had originally been defined by its lake frontage, then they would maintain that feature. Alternatively, if the exposed land passed to the state of South Australia, thereby rendering the Appellant’s land effectively landlocked the valuable advantage of the water frontage would be lost. It is necessary to refer to a number of passages of the speech of Lord Wilberforce in this case as to nature of the doctrine of accretion and diluvion, which:-
“gives recognition to the fact that where land is bounded by water, the forces of nature are likely to cause changes in the boundary between the land and the water. Where these changes are gradual and imperceptible (a phrase considered further below), the law considers the title to the land as applicable to the land as it may be so changed from time to time. This may be said to be based on grounds of convenience and fairness. Except in cases where a substantial and recognisable change in boundary has suddenly taken place (to which the doctrine of accretion does not apply), it is manifestly convenient to continue to regard the boundary between land and water as being where it is from day to day or year to year. To do so is also fair. If part of an owner's land is taken from him by erosion, or diluvion (i.e. advance of the water) it would be most inconvenient to regard the boundary as extending into the water; the landowner is treated as losing a portion of his land.  So, if an addition is made to the land from what was previously water, it is only fair that the landowner's title should extend to it. The doctrine of accretion, in other words, is one which arises from the nature of land ownership from, in fact, the long-term ownership of property inherently subject to gradual processes of change. When land is conveyed, it is conveyed subject to and with the benefit of such subtractions and additions (within the limits of the doctrine) as may take place over the years. It may of course be excluded in any particular case, if such is the intention of the parties.  But if a rule so firmly founded in justice and convenience is to be excluded, it is to be expected that the intention to do so should be plainly shown.

The authorities have given recognition to this principle.  They have firmly laid down that where land is granted with a water boundary, the title of the grantee extends to that land as added to or detracted from by accretion, or diluvion, and that this is so whether or not the grant is accompanied by a map showing the boundary, or contains a parcels clause stating the area of the land, and whether or not the original boundary can be identified.” Per Lord Wilberforce at pages 3 – 4)

48.	Lord Wilbeforce (at page 4) then went on to consider the case of Attorney-General v. M’Carthy ([1911] 2 IR 260) and in particular the judgment of Gibson J who:-

“…explicitly considers the case where the original boundaries are ascertainable by natural features or by documentary proofs, maps, etc., and holds that, where the movement of water is sudden or temporary, the presence or ascertainability of the original coast-line or boundary marks may be important.  But, where the process is gradual and imperceptible, the importance of original limits or measures is by no means the same, the accretion being a ‘perquisite’ or an incident’ or ‘accessory’, attached to and added to the original territory or the owner” (at page 295).  And later (at page 298) he says that it makes no difference whether the original boundaries are fixed by natural objects, or by constructions, or by measurements and maps. The principle governing the ownership of alluvion growing by imperceptible process of nature is the same.  Finally, he says,  “ The Ordnance Survey, in determining boundaries, can hardly be supposed to have had the effect of depriving the subject of alluvial rights as against the Crown" (ibid). No more, it can be added, should the public maps at Adelaide have this effect.” 

49.		Lord Wilberforce also considers, as he put it, even stronger authorities, and then at page 6, where he deals with the question of windswept sand, states:-

Accretion is however a doctrine of the common law and is therefore capable of adjustment and expansion by the use of analogy. In the first place it is necessary to limit the question to a case such as the present where what is involved is the alteration of a land/water boundary: other cases where alterations of boundaries may occur through windswept sand may give rise to different issues which their Lordships do not wish to pre-empt.  In relation to such an alteration there seems to be no reason in principle why the doctrine should be confined to such changes as are effected solely through fluvial action: a logical category would be that of natural causes which would embrace additions to (or detractions from) land brought about by the action or both elements, water and air.”

50.	At pages 7 and 8 of this decision Lord Wilberforce then states:-

The doctrine of accretion must be applied according to established principle. One of these is that the accretion must take place by gradual and imperceptible means.  At one time Mr. G1eeson Q.C., for the appellant, seemed tempted to rely upon the first only of these adjectives, but apart from one passage in a judgment concerned with Indian rivers (Secretary of State for India v. Raja of Vizianagaram (1921) L.R. 49 Ind. App. 67) which their Lordships consider should be related to the facts of that case, authority is firmly against him.

The requirement of imperceptibility has been in the English common law from the time of Bracton who derived it from Justinian.  It is for “latens incrementum. quod ita paulatim adjicitur, quod intelligere non possis, quo memento temporis adjiciatur” (see the learned discussion by Palles C.B. in Attorney-General v. M’Carthy [1911] 2 L.R. 260 at page 277). [This translates as “hidden growth, because it is added little by little, and cannot be perceived at the moment of time when it is added”]

Since Bracton, the requirement of imperceptibility has been affirmed by the highest authority, R. v. Lord Yarborough (1828) 2 Bligh N.S. 147; Attorney-General v. M’Carthy  (1.c.).

The word, of course, has to be interpreted.

In R. v. Lord Yarborough, Abbott C.J., giving the judgment of the King's Bench ((1824) 3 B. and C. 91 at page 107), said that it must be understood as "expression only of the manner of accretion. . . . and as meaning imperceptible in its progress, not imperceptible after a long lapse of time".  The gain of land in that case, by recession of the sea, was said to have been on average, over 26 - 27 years, of about 5½ - yards in a year, or (according to other witnesses) greater and it was held that jury could properly hold this to be imperceptible.  In the opinion which Best C., on behalf of the judges, later gave to the House of Lords there is this passage: “Land formed by alluvion must become useful soil by degrees, too slow to be perceived.  What is deposited by one tide will not be so transient as to be removed by the next.  An embankment of a sufficient consistency and height to keep out the sea must be formed imperceptibly”. (2 Bligh N.S. 147, 158.)

One naturally searches for a reason or rationale for the requirement that the process be gradual and imperceptible, but this proves elusive. Blackstone (Vol. 2, page 262) puts it on ground “de minimis non curat lex” a theory exposed to the objection that the result may turn out to be far from minimal.  It has also been suggested that an addition to land may be too minute and valueless to appear worthy of legal dispute or separate ownership: Hall’s Essay on the Sea Shore, 2nd edn. 117, cited in Williams v Booth (1910) 10 C.L.R. 341, 356.  Alderson B. in Re Hull and Selby Railway (l.c., page 333) gave as the reason "that which cannot be perceived in its progress is taken to be as if it never had existed at all ", an explanation which may appeal to the amateur of legal fictions; it was preferred to Blackstone's by Lord Chelmsford in Attorney-General v. Chambers (l.c., page 68).  Another, and perhaps more realistic, explanation is (as already suggested) that the rule is one required for the permanent protection of property and is in recognition of the fact that a riparian property owner may lose as well as gain from changes in the water boundary or level.  But, whatever is the true explanation of the rule-and there may well be more than one reason for it-what is certain is that it requires a distinction to be made between such progression as may justly be considered to belong to the riparian owner, and such large changes or avulsions as should more properly be allocated to his neighbour.  Since there is a logical and practical, gap or.. “grey area” between what is imperceptible and what is to be considered as “avulsion”, the issue of imperceptibility or otherwise was always considered to be a jury question (see Attorney-General v. M’Carthy l.c., page 296 per Gibson J.).

51.	Drawing together these legal strands it is therefore in principle possible to make a clear distinction between two interpretations i.e. what is a gradual and imperceptible process of nature in the movement of water, being imperceptible in its progress – in other words being too slow to be perceived, and the movement of water which is subject to a substantial, recognisable, and sudden change. As there is, however, what has been described as a “grey” area between what is imperceptible and what is considered to be an avulsion then the issue of imperceptibility is always considered to be jury question i.e. a question of fact. I should also add that most of the cases are dealing with questions of changes in the foreshore and not rivers.

DECISION

52.	Having regard to the evidence to which I have referred above in some detail, I make the following finding of fact: -

(1)	As a physical feature the Meander has historically formed the paper title boundary between Haye Farm, and Middle Hill Farm.  For the reasons set out below I find that in about 1999 there was a sudden change in the flow of the River  so its course altered from the Meander to the Cut-off;

(2)	Prior to that event the River used to flow in a “U” shape and there were “lazy S” bends immediately upstream of the weir. During heavy rain, however, as described by Ms Cooper and Mr Palmer (whose evidence I accept as directly bearing on the issues), the River would overflow its bank at the bend and cut the corner at the “neck” and flow directly to the weir through the Cut-off. When the River level dropped it would then resume its “normal meandering course” as described;  

(3)	I am also satisfied that the west and Haye Farm side of what is been referred to as Pig’s Island or Piggy Island formerly on occasions was a boggy area which was water logged at certain times. This happened when the River was in full flood and in effect an island was thereby created.  Over about a decade or so through this boggy area  a more defined channel developed  during the times when the River was in full flow, and eventually in about 1998 or thereabouts the Cut–off was formed by the River water seeking a more direct route than the Meander.  This probably resulted from a severe storm or storms in the mid to late 1990s. The fact, however,  that a more direct route for the water flow was formed did not diminish, at least initially, water flowing through the Meander.  It is only in the more recent years and probably since about 1998 or possibly even as late as 2000 that the Cut-off route has become the primary watercourse, and despite apparent efforts from the Applicants since they purchased Middle Hill Farm, the Meander has diminished in its importance as a watercourse. Thus although it might be said that by 1997 or 1998 or thereabouts the Meander could be described as being no more than a “ditch” (pace Mr Ashe) I do not accept that its function had been reduced to such over many years prior to that date.

(4)	In this regard I should mention that when I undertook the site inspection the amount of water in the Meander was somewhat limited despite the fact that it was raining and there was little evidence of water entering into the Meander from the River at that stage. I am satisfied, however, it was boggy and undoubtedly it acts as a run-off and also as means of drainage for water descending from the adjoining field.  Further, when the River is in full flood (which it was not at the time of my inspection) it may well be that the river water still flows through the Meander despite the fact of the existence of the spoil placed there in about 2004. 

(5)	Although it must be question of fact and degree, I do not accept Applicants’ assertion that there was a gradual history of change in the course of the River over a long period of time in that the creation of the Cut-off at the point of the ox-bow and the reduction of the water flow in the Meander was a gradual process.  There may well have been occasions when the Cut-off route flowed at times where there was a heavy volume of water and that eventually the flow in the Cut-off route predominated over the flow in the Meander. 

(6)	I find, however, based upon the evidence particularly that of the Respondent, Mr Hounsell and Ms Cooper, and also indirectly supported by the first Applicant and Mr Hussey as to erosion of the banks of the River, that the event causing the final breach was a single act of avulsion, or, in my judgment, more likely to have been a short series of smaller avulsions in the mid 1990s resultant upon severe weather conditions whereby on few occasions when the River was in full flood the water found its own new direct passage through the Cut-off.  As Mr Hounsell said, the permanent change in its course at that stage in its history was probably the result of heavy rain causing the river to flood. This led to the diminishing in importance of the Meander. 

(7)	I also find the change in the course of the River coincided with the works undertaken by the Applicants to its banks at that time, but I accept that there was no deliberate intention to alter the course of the River.  As I have mentioned above, although it is somewhat curious that the Applicants do not appear to have involved the Respondent in this, or to have even notified him, there is evidence from the Applicants that they did make efforts to reinstate the flow to the Meander, but the forces of nature were too strong. Later,  spoil was deposited in the Meander but by this time it was no longer the major watercourse for the flow of the River, such debris having earlier been placed in the adjoining field.  

(8)	Thus, in short, I find that the course of the River changed dramatically over a relatively short period of time. The event or events were sudden and perceptible and therefore cannot be described as gradual and imperceptible. I further find that the Meander still constitutes a watercourse and is still capable of defining the boundary between the parties. 

(9)	I also do not accept as matter of fact that any request was made to the Respondent for permission for works to be undertaken to the west bank of the River and I accept his denial in this regard. I also accept the Respondent’s account that he did not visit the area in question on a daily basis and that he only became aware of the fact that works were being undertaken to the banks of the River in about 1999.

(10)	Finally, although I find the Respondent to be a truthful witness, albeit it not particularly effective in his delivery, I should state that there is no evidence in support of his assertions that works were done to the weir by the removal of the top two tiers of stonework blocks or that a JCNB was used to “encourage” the development of the water-flow through the Cut-off. . It is impossible to judge from the photographs that these events occurred and there is no direct evidence to this effect. Accordingly I reject those parts of the Respondent’s evidence which are therefore unsubstantiated.   

52.	In such circumstances I shall direct the Registrar to reject the original application.

Dated this 19th day of January 2009

By Order of The Adjudicator to HM Land Registry