Rights of Way: Horses for Courses; But Not Cattle
- AuthorPaul Hajek
A right of way is one example of a legal easement.
An easement provides certain rights over land you do not own
Rights of Way are most often incorporated into a Conveyance or Transfer deed.
If you purchased a new house, you will no doubt remember that rights of way were granted to you and other owners on the development.
What if there are no deeds- how do you know a right of way exists?
Sometimes rights of way can be acquired over time by long usage - at least 20 years.
The legal reasoning goes something like this: as an easement is a restriction on the rights of the land affected, where that involves a right acquired over a long period, the owner has lost the right to object.
But, by the same token, the owner of the land should not be taken as losing the right to object to use of the land which is more onerous.
In the arcane language still used by Conveyancing Solicitors these are known as prescriptive rights and lost modern grants
Horses for Courses:
The High Court has confirmed in a recent case that there had been a right of way for pedestrian, for horses and vehicles over a track leading to a field.
The Court of Appeal was asked to determine whether the right extended to cattle as well.
The Court of Appeal pointed out that there was a distinction to be drawn between a right of way for vehicles and horses, and for driving cattle. The latter was regarded as more onerous. One right did not necessarily flow from the other without proof of long usage
The Court on the facts of the case decided that there was no such additional right to drive cattle along the track, as no evidence had been obtained showing that this was usual.
This area of law can be very complex. If you have any problems about rights of way, whether written or unwritten, please contact us, we would be happy to help.