Right of way

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For other uses, see Right of way (disambiguation).

Right of way is a term first used to describe the right to travel unhindered, to access a route regardless of land ownership or any other legality.

The right of way may be limited. If one person owns a piece of land which is bordered on all sides by lands owned by others, a court will be obliged to grant the right of way to those approved by the owner or owners of the isolated land area. It is also common practice for the public to be granted the right of way on a path or track which is in common use for a lengthy period of time (see Easement). Public right of way is not restricted by land ownership and grants travel access to all.

United Kingdom[edit]

England and Wales[edit]

In England and Wales, public rights of way are paths on which the public have a legally protected right to pass and re-pass. The law in England and Wales differs from that in Scotland in that rights of way only exist where they are so designated (or are able to be designated if not already) whereas in Scotland any route that meets certain conditions is defined as a right of way, and in addition there is a general presumption of access to the countryside. Private rights of way or easements also exist.

Scotland[edit]

In Scotland, a right of way is a route over which the public has been able to pass unhindered for at least 20 years.[1] The route must link two "public places", such as villages, churches or roads. Unlike in England and Wales there is no obligation on Scottish local authorities to signpost or mark a right of way. However the charity Scotways, formed in 1845 to protect rights of way, records and signs the routes.[2]

Scotways sign for a "Public Path"

There is no legal distinction between footpaths and bridleways in Scotland, though it is generally accepted that cyclists and horseriders may follow rights of way with suitable surfaces.

The Land Reform (Scotland) Act 2003 established a general presumption of access to all land in Scotland, making the existence of rights of way less important in terms of access to land in Scotland. Certain categories of land are excluded from this presumption of open access such as railway land, airfields and private gardens.

Irish Republic[edit]

In Ireland, pedestrian rights of way to churches, known as mass paths, have existed for centuries. In other cases, the modern law is unclear; on the one hand, Victorian era laws on easements protect a property owner's rights, amplified by the 1937 constitution, which stipulate that a right of way has to be specifically dedicated to public use.[3] Opposing these, those claiming general rights of way hark back to an anti-landed gentry position that has endured since the Land War of the 1880s. Rights of way can be asserted by Adverse possession, but proving continuous use can be difficult. A case heard in 2010 concerning claims over the Lissadell House estate was based on the historical laws, since amended by the Land and Conveyancing Law Reform Act, 2009.[4]

The 2009 Act abolished the doctrine of lost modern grant, and allows a user to claim a right of way after 12 year of use across private land owned by another, 30 years on state land and 60 years on the foreshore.[5] The claim must be confirmed by a court order and duly registered, an expensive process. The user must prove "enjoyment without force, without secrecy and without the oral or written consent of the .. owner", a restatement of the centuries-old principle of Nec vi, nec clam, nec precario.

See also[edit]

References[edit]

  1. ^ Rights of way in Scotland Scottish Natural Heritage
  2. ^ [1] Scotsway: The Scottish Rights of Way & Access Society.
  3. ^ The constitution guarantees the "life, person, good name and property rights of every citizen" (Article 40.3)
  4. ^ Lissadell owners' case, reported Jan 2010; and a group opposed to the current laws.
  5. ^ http://www.irishstatutebook.ie/2009/en/act/pub/0027/sec0033.html 2009 Act, s.33

External link[edit]