Right of way is a legal term used in a variety of related ways. In some cases a right of way is also a specific type of easement.[1]

No right of way sign in Dorset, England

It can be a right, established by grant from a landowner or long usage (i.e., by easement by prescription), to pass along a specific route through property belonging to another.[2] Access granted by a right of way ranges from being broad enough to grant access to the general public,[3] to being restricted for the benefit of only a specific individual or adjacent property.[4]

Also, when an individual owns a piece of land that is bordered on all sides by lands owned by others, an easement may exist or may be created so as to initiate a right of way through the bordering land.

The term categorizes an easement, or grant to use the land, in order to construct transportation facilities, such as railways, canals, electrical grids, pipelines, etc.[5] Long distance hiking trails are similarly created by national and local governments, though they can incorporate, in whole or part, historic rights of way established by prescription.

Belgian road sign

The term may also describe priority of traffic flow, "the legal right of a pedestrian, vehicle, or ship to proceed with precedence over others in a particular situation or place".[6] In hiking etiquette, where when two groups of hikers meet on a steep trail, a custom has developed in some areas whereby the group moving uphill has the "right of way".[7]

The term "right of way" is also used to denote the land itself, such as the strips of land along a railroad track; as well as a path, trail, road, bridleway, etc. that provides legal public access across private land, or along a waterway or shoreline.

A "permissive right of way" is closed for a day or more each year and can be rescinded at any time.

The right to roam is a historic legal right of access to private and public land and waters in many northern European countries, that is not limited to following rights of way along paths and trails. A similar right of access also exists on land held by a government, lands that are typically called public land, state land, or Crown land.

Traffic Regulations edit

Traffic regulations govern who has the right of way in interactions between vehicles, vehicles and cyclists, vehicles (including cycles) and pedestrians on highways.[8]

See also the Equestrian use of roadways.

Public rights of way edit

A public right of way is a right established by, either (a) a grant from a landowner (including local and national governments), or (b) long usage, that is by easement by prescription, to pass along a specific route across property.

Some, especially northern European, countries, allow greater freedom of access to public and private land than others, under ancient right to roam traditions. See below.

Europe edit

France edit

Traditional rights of way take the form of servitude de passage (right of passage) and droit de marche-pied (right to walk, along canals and canalised rivers). There is a system of about 120,000 kilometres of well-marked footpaths in France.[9] Many were formerly the main routes between villages and are often "steeper and more direct than modern roads". There are also, in addition, sentier de grande randonnée, long distance trails.[10]

Republic of Ireland edit

In the Republic of 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.[11] Opposing these, those claiming general rights of way hark back to an anti-landed gentry position that lasted from the Land War of the 1880s to the end of British rule in 1922. 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.[12]

The 2009 act abolished the doctrine of lost modern grant, and allows a user to claim a right of way after 12 years of use across private land owned by another, 30 years on state land and 60 years on the foreshore.[13] The claimant must apply to the courts, and have their claim confirmed by a court order, and then have it duly registered on the title deeds, a lengthy 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. A court order granting a right of way is personal to the applicant for their lifetime, and cannot be inherited or assigned.

United Kingdom edit

England and Wales edit
Hertfordshire public access, England

In England and Wales, other than in the 12 Inner London boroughs and the City of London, 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.

Footpaths, bridleways and other rights of way in most of England and Wales are shown on definitive maps. A definitive map is a record of public rights of way in England and Wales. In law it is the definitive record of where a right of way is located. The highway authority (normally the county council, or unitary authority in areas with a one-tier system) has a statutory duty to maintain a definitive map, though in national parks the national park authority usually maintains the map.

Permissive paths edit
River Wensum permissive path, Norfolk, England

Some landowners allow access over their land without dedicating a right of way. These are often physically indistinguishable from public rights of way, but they are may be subject to restrictions. Such paths are often closed at least once a year, so that a permanent right of way cannot be established in law.[14]

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.[15][16] 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 rights of way. However the charity Scotways, formed in 1845 to protect rights of way, records and signs the routes.[17]

Scotways sign for a "Public Path"

The Land Reform (Scotland) Act 2003 codified in law traditional, non-motorised, access practices on land and water. Under the 2003 act a plain language explanation of rights is published by Scottish Natural Heritage: the Scottish Outdoor Access Code. Certain categories of land are excluded from this presumption of open access, such as railway land, airfields and private gardens.[18]: 11–13 

Section 4 of the access code explains how land managers are permitted to request the public to avoid certain areas for a limited period in order to undertake management tasks, however longer term restrictions must be approved by the local authority.[18]: 60–62  The ability to temporarily restrict public access is commonly exercised without notice by shooting, forestry or wind farm operators,[citation needed] but does not extend to public rights of way.[18]: 15, 36  In Scotland the public have a higher degree of freedom on rights of way than on open land. Blocking a right of way in Scotland is a criminal obstruction under the Highways Act, just as in England and Wales, but the lack of publicly accessible rights of way maps in Scotland makes it very difficult to enforce.[19]

While in England and Wales, highway authorities have a duty to maintain legally recognised maps of rights of way, in Scotland different legislation applies and there is no legally recognised record of rights of way. However, there is a National Catalogue of Rights of Way (CROW), compiled by the Scottish Rights of Way and Access Society (Scotways), in partnership with Scottish Natural Heritage, and the help of local authorities. There are three categories of rights of way in CROW:

  • vindicated – routes declared to be rights of way by some legal process;
  • asserted – routes which have been accepted as rights of way by the landowner, or where local authorities are prepared to take legal action to protect them;
  • claimed – other right of way routes, which have not been vindicated or asserted, but which appear to meet the common law conditions and have not yet been legally disputed.[15]
Northern Ireland edit

Northern Ireland has very few public rights of way and access to land in Northern Ireland is more restricted than other parts of the UK, so that in many areas walkers can only enjoy the countryside because of the goodwill and tolerance of landowners. Permission has been obtained from all landowners across whose land the Waymarked Ways and Ulster Way traverse. Much of Northern Ireland's public land is accessible, e.g. Water Service and Forest Service land, as is land owned and managed by organisations such as the National Trust and the Woodland Trust.[20]

Northern Ireland shares the same legal system as England, including concepts about the ownership of land and public rights of way, but it has its own court structure, system of precedents and specific access legislation.[21]

North America edit

Howe Street Stairs, Seattle, US

Throughout the US and Canada urban rights of way exist through public alleys. For example, in Seattle, there are over 600 publicly accessible stairways a city of hills, bluffs, and canyons.[22]

Likewise, in Québec City, Canada, which was originally built on the riverside bluff Cap Diamant in the 17th century, there are strategically placed public stairways that link the bluff to the lower parts of the city.[23] The Upper City is the site of Old Québec's most significant historical sites, including 17th- and 18th-century chapels, the Citadel and the city ramparts. The Breakneck Stairs or Breakneck Steps (French: Escalier casse-cou), Quebec City's oldest stairway, were built in 1635. Originally called escalier Champlain "Champlain Stairs", escalier du Quêteux "Beggars' Stairs", or escalier de la Basse-Ville "Lower Town Stairs", they were given their current name in the mid-19th century, because of their steepness. The stairs have been restored several times, including an 1889 renovation by Charles Baillargé.[24]

United States edit

See also Right-of-way (property access)

Natchez Trace National Historic Trail

Rights of way have been created in the US, both by historic use (prescription) and by grants made by the national and state governments, local authorities and private landowners.

Trails that had been established by indigenous peoples were used by Europeans settling N. America. Some became highways, while others have been incorporated recently into hiking trails. Examples include: Natchez Trace; Santa Fe Trail; Bozeman Trail.

In the twentieth century a long distance trails system was established under the National Trails System Act, in response to a call by President Lyndon B. Johnson to have a cooperative program to build public trails for "the forgotten outdoorsmen of today" in both urban and backcountry areas.[25] The program for long-distance natural trails was created on October 2, 1968, by the National Trails System Act, which also designated two national scenic trails, the Appalachian Trail and the Pacific Crest Trail, and requested that an additional fourteen trail routes be studied for possible inclusion. Under the Act, 21 National Historic Trails have also been created designated to protect the courses of significant overland or water routes that reflect the history of the nation, as well as National Scenic Trails.

A right of way also exists on navigable rivers in the US (see "Rivers", below).

Canada edit

Some rights of way in North America are hundreds of years old. In Newfoundland the East Coast Trail, established by a group of hiking enthusiasts, makes use of traditional trails between local communities along the coast of the Avalon Peninsula.[26]

There are also rights of way along navigable rivers (see "Rivers", below).

Asia edit

Philippines edit

In the Philippines, right of way disputes often arise when landowners block access to paths or roads that have been used by the public or specific individuals for a considerable period. The issue typically centers on whether the affected parties have a legal right to use the route that traverses private property to reach a public road or a national highway.[27] This causes delays in many infrastructure projects, and a laborious process at the local government level.[28]

Oceania edit

New Zealand edit

There is extensive public access in New Zealand, including waterways and the coast, but it is "often fragmented and difficult to locate".[29]

Right-of-way (property access) edit

Julington-Durbin Peninsula Powerline Right of Way

Another type of "right of way" exists that involves the granting, purchase, or reserve of public or private land for various transportation purposes, including highways, railways, canals, electrical grids, pipe lines, and hiking and other types of trail.

Air and light edit

Air rights also exist, relating to the property interest in the "space" above the Earth's surface.

There is a related "Freedom of the air", which is also called five freedoms of air transport, are a set of commercial aviation rights granting a country's airlines the privilege to enter and land in another country's airspace.

Another right relating to air space above land or water is right to light a form of easement in English law that gives a long-standing owner of a building with windows a right to maintain an adequate level of illumination.[30] In American common law the doctrine died out during the 19th century, and is generally no longer recognized. A similar contemporary right is a solar easement. [31]

Trails by land and water edit

National Water Trail logo, US

In addition to the "rights of way" established under common law by regular use or passage such a right can also be granted by landowners and by local and national governments, through private or public land or waterways, for the legal use by pedestrians, equestrians, cyclists, boaters, and others.

In the US a network of long distance trails have been established under the National Trails System Act (see above).

Right of way (shipping) edit

A right to navigate a river or other waterway constitutes one type of "right of way". This right may in some countries be included with the right to roam.

Another involves navigation rules, comparable those that apply to people and vehicles on public highways.[32]

Rivers edit

In England and Wales under current law, public access to rivers is restricted, and only 2% of all rivers have public access rights. The Rivers Access Campaign is being undertaken by the British Canoe Union (BCU) to open up the inland water-ways in England and Wales on behalf of members of the public.

In Canada rivers are crown land and there is a legal "right to navigate over navigable waters. However, the difficult legal question is what constitutes navigable waters. There is no federal or provincial law defining this, nor is there any list of waters the public can use".[33]

In the US under riparian law, water is a public good like the air, sunlight, or wildlife. It is not "owned" by the government, state or private individual but is rather included as part of the land over which it falls from the sky or then travels along the surface. In determining the contours of riparian rights, there is a clear distinction between navigable (public) waters and non-navigable waters. Navigable waters are treated as public highways with any exclusive riparian right ending at the ordinary high water mark. A non-navigable stream is synonymous with private property, or jointly-owned property if it serves as a boundary (see also Water law in the United States).

The "right to roam" in northern European countries usually includes rivers and lakes.

Right to roam edit

Sign on the Bodmin Moor, Cornwall, England citing the Countryside and Rights of Way Act, and noting that the land is open access

The freedom to roam, or everyman's right is the general public's right to access certain public or privately owned land for recreation and exercise, in addition to existing paths and tracks.

In many northern European countries, such as Scotland and the Nordic countries of Finland, Iceland, Norway and Sweden, as well as the Baltic countries of Estonia, Latvia and Lithuania the freedom to roam may take the form of general public rights which are sometimes codified in law, such as for example the Norway Outdoor Recreation Act. The access is ancient in parts of Northern Europe and has been regarded as sufficiently basic that it was not formalised in law until modern times. This right also usually includes access to lakes and rivers, and therefore activities like swimming, canoeing, rowing and sailing.[34] The Land Reform (Scotland) Act 2003 gives everyone statutory access rights to most inland water in Scotland (excluding motorized vehicles), providing that they respect the rights of others.[19]

In England and Wales public access rights apply to certain categories of mainly uncultivated land—specifically "mountain, moor, heath, down and registered common land". Developed land, gardens and certain other areas are specifically excluded from the right of access. Agricultural land is accessible if it falls within one of the categories described above (See Countryside and Rights of Way Act 2000). Most publicly owned forests have a similar right of access by virtue of a voluntary dedication made by the Forestry Commission. People exercising the right of access have certain duties to respect other people's rights to manage the land, and to protect nature.

Many tropical countries such as Madagascar have historic policies of open access to forest or wilderness areas.[citation needed]

Foreshore edit

Public rights of way frequently exist on the foreshore of beaches. In legal discussions the foreshore is often referred to as the wet-sand area.

For privately owned beaches in the United States, some states such as Massachusetts use the low water mark as the dividing line between the property of the State and that of the beach owner. Other states such as California use the high-water mark.

In the UK, the foreshore is generally deemed to be owned by the Crown although there are notable exceptions, especially what are termed several fisheries which can be historic deeds to title, dating back to King John's time or earlier, and the Udal Law, which applies generally in Orkney and Shetland. While in the rest of Britain ownership of land extends only to the High water mark, and The Crown is deemed to own what lies below it, in Orkney and Shetland it extends to the lowest Spring ebb.[35][better source needed] Where the foreshore is owned by the Crown the public has access below the line marking high tide.

In Greece, according to the L. 2971/01, the foreshore zone is defined as the area of the coast which might be reached by the maximum climbing of the waves on the coast (maximum wave run-up on the coast) in their maximum capacity (maximum referring to the “usually maximum winter waves” and of course not to exceptional cases, such as tsunamis etc.). The foreshore zone, apart from the exceptions in the law, is public, and permanent constructions are not allowed on it.

As with the dry sand part of a beach, legal and political disputes can arise over the ownership and public use of the foreshore. One recent example is the New Zealand foreshore and seabed controversy involving the land claims of the Māori people.[29] However, the Marine and Coastal Area (Takutai Moana) Act 2011 guarantees free public access.[36]

Public land edit

Some land long considered public or crown land may in fact be the territory of Indigenous people, in countries that were colonised.

Crown land in Canada edit

Much of Canada is Crown land owned by the provinces. Some is leased for commercial activity, such as forestry or mining, but on much of it there is free access for recreational activities like hiking, cycling, canoeing, cross-country skiing, horse back riding, and licensed hunting and fishing, etc. At the same time access can be restricted or limited for various reasons (e.g., to protect public safety or resources, including the protection of wild plants and animals).[37] In the Canadian Territories Crown land is administered by the Canadian Federal Government. Canadian National Parks have been created from Crown land and are also administered by the Federal Government. There are also provincial parks and nature reserves that have been similarly created. The aboriginal peoples in Canada may have specific rights on Crown land established under treaties signed when Canada was a British colony, and have claimed ownership of some Crown land.[38]

Crown land in Australia edit

Much of Australia's land area, including most land below the mean high water mark is Crown land, which is administered by the Australian states. Much consists of pastoral leases, land owned and run by Aboriginal people (e.g. APY lands), and "unallocated" Crown land. Access to the latter is normally permitted for recreational purposes, though motorized vehicles are required to follow roads and to be registered and insured.[39]

Public land in the US edit

Most state and federally managed public lands are open for recreational use. Recreation opportunities depend on the managing agency, and run the gamut from the free-for-all, undeveloped wide open spaces of the Bureau of Land Management lands to the highly developed and controlled US national parks and state parks. Wildlife refuges and state wildlife management areas, managed primarily to improve habitat, are generally open to wildlife watching, hiking, and hunting, except for closures to protect mating and nesting, or to reduce stress on wintering animals. National forests generally have a mix of maintained trails and roads, wilderness and undeveloped portions, and developed picnic and camping areas.

See also edit

References edit

  1. ^ An easement is a nonpossessory right to use and/or enter onto the real property of another without possessing it. It is "best typified in the right of way which one landowner, A, may enjoy over the land of another, B" (Gray Kevin J and Susan Francis Gray, Elements of Land Law. Oxford University Press, 2009. 5th edition, p.13.) An easement is a property right and type of incorporeal property in itself at common law in most jurisdictions.
  2. ^ New Oxford American Dictionary.
  3. ^ Gage, Andrew (Oct 2007). "Highways, Parks and the Public Trust Doctrine". Journal of Environmental Law and Practice. 18 (1): 1.
  4. ^ Mellor, William (1934). "Real Property--Extent of Easement Acquired by Prescription". Kentucky Law Journal. 23 (1): 189.
  5. ^ Black, Henry Campbell (1910) [1891]. A Law Dictionary. Containing definitions of the terms and phrases of American and English jurisprudence, ancient and modern (2nd ed.). St. Paul, MN: West Publishing Co. p. 1040.
  6. ^ New Oxford American Dictionary
  7. ^ Devaughn, Melissa (April 1997). "Trail Etiquette". Backpacker Magazine. Active Interest Media, Inc. p. 40. ISSN 0277-867X.
  8. ^ https://www.dmv.ca.gov/portal/handbook/california-driver-handbook/laws-and-rules-of-the-road/#rightofway "Right of Way Rules", Government of California
  9. ^ "Walking Access in the New Zealand Outdoors
  10. ^ "Why Walk in France", Walking in France
  11. ^ The constitution guarantees the "life, person, good name and property rights of every citizen" (Article 40.3)
  12. ^ Mary Carolan (20 January 2010). "No evidence of Lissadell right of way, court told". The Irish Times. Archived from the original on 31 December 2010.
    "Issues by county". Keep Ireland Open (a group opposed to the current laws). Archived from the original on 2010-06-03.
  13. ^ "Land And Conveyancing Law Reform Act 2009, Part 8, section 33". Electronic Irish Statute Book (eISB). Retrieved 2023-01-02.
  14. ^ "Everything you need to know about Rights of Way". 24 August 2011. Retrieved 13 November 2016.
  15. ^ a b Rights of way in Scotland Archived 2015-07-26 at the Wayback Machine Scottish Natural Heritage
  16. ^ Scottish Natural Heritage. "Rights of way in Scotland" (PDF). Archived from the original (PDF) on 2017-06-30.
  17. ^ "Upholding Public Access in Scotland". ScotWays. Retrieved 2023-01-02.
  18. ^ a b c "Scottish Outdoor Access Code" (PDF). Scottish Natural Heritage. 2005. Archived from the original (PDF) on 2018-07-18.
  19. ^ a b "Scottish Outdoor Access Code". Retrieved 13 November 2016.
  20. ^ "Access - Useful Info - Walk NI". Retrieved 13 November 2016.
  21. ^ A Guide to Public Rights of Way and Access to the Countryside: [1].
  22. ^ Seattle All Stairs: "Seattle Stairs – map of all public stairs with guides to 30 walks". Archived from the original on 30 May 2014. Retrieved 2014-05-01..
  23. ^ "Quebec, Canada". www.ndsu.edu. Retrieved 2022-12-01.
  24. ^ "Québec City and Area – Stairways". Québec City Tourism. 2011. Archived from the original on 9 February 2011. Retrieved 15 February 2011.
  25. ^ "Trails for America" (PDF). Department of the Interior – Bureau of Outdoor Recreation. December 1966.
  26. ^ Tanner, "Early Days with the East Coast Trail", MUNPA
  27. ^ "Legal Guide to Right of Way Issues in the Philippines". RESPICIO & CO. 2024-04-25. Retrieved 2024-06-03.
  28. ^ Chanco, Boo. "Right of way". Philstar.com. Retrieved 2024-06-03.
  29. ^ a b "Kia Ora, Welcome". Retrieved 13 November 2016.
  30. ^ Kerr, Robert (1865). "On ancient lights: and the evidence ... - Google Books". Retrieved 2010-02-23.
  31. ^ Revised Code of Washington 64.04.150 (2008).
  32. ^ Amalgamated International & U.S. Inland Navigation Rules. US Coastguard
  33. ^ Public access to waterways on private property – The Law. The Western Producer
  34. ^ Right to roam in Norway: [2] Archived 2017-06-01 at the Wayback Machine.
  35. ^ "S.O.U.L." Retrieved 13 November 2016.[unreliable source?]
  36. ^ "New foreshore bill passed". Television New Zealand. 24 March 2011. Retrieved 30 July 2012.
  37. ^ "Crown land". ontario.ca. 2021 [2015]. Retrieved 2023-01-02.
  38. ^ "Declaration Order: Algonquin Land Claim". ontario.ca. 2007.
  39. ^ "Crown Land". Department of Lands. Government of Western Australia. Archived from the original on 13 November 2016.

External links edit