Highway at Common Law
A highway at common law is a way over which members of the public may pass and re-pass. The land over which the way runs is a highway.
A highway need not be a thoroughfare. A cul-de-sac may be a highway, notwithstanding that it is not a thoroughfare. The fact that it leads to nowhere may be a factor against inferring a highway, where it is not specifically so dedicated.
There may be restrictions and limitations on the right of passage. Every person has a right to use a highway for its appropriate use, subject to any restrictions that apply to its terms. Ways which are for the benefit of a particular group or community, even a relatively large group are not highways as they are not open to the public generally.
The public has a right to pass along the highway for the purpose of legitimate travel. They may be on the highway, provided their presence is attributable to the reasonable and proper use of the highway as such. A person is presumed to be acting lawfully and in accordance with the terms of the dedication.
There is no general right to roam through an open area or open land. No general right is acquired by long use or prescription. Such a right might be created by statute.
A highway need not be dedicated for vehicles. It includes footpaths, bridleways, and other ways if open to the general public. A highway may be for passage by foot, for vehicles or the kind of transport. Generally, the greater includes the lesser so that a highway permitting access by road vehicles or with animals will include access on foot.
An ancient right of passage for carriages was generally held to include a right for motor vehicles. The fact that some vehicles, or even many vehicles, were too wide for such a carriageway did not necessarily preclude their being available for vehicular traffic.
Circumstances may, however, show that the dedication is limited to vehicular traffic of a particular type. The circumstances may show that dedication as a roadway does not include a right for pedestrians in the circumstances.
A public right of way may be created by deed or by dedication and acceptance. It may be created on a statutory basis.
Land may only be dedicated by a person with legal title to do so. The question of whether land has been dedicated by the owner and accepted by the public as a highway is a matter of fact.
Dedication implies an intention on the part of the owner to dedicate. This may be inferred from the circumstances or expressed orally. As with many other areas of law, the court infers the intention to dedicate; the owner’s subjective intentions are not determinative.
Acceptance is a necessary element. Acceptance is generally presumed and inferred from use. Clear, open, unobstructed use for the public over a substantial period will be sufficient to show acceptance.
Capacity to Dedicate
Issues may arise where the person who purports to dedicate does not have full freehold title. At common law, a leaseholder could not dedicate so as to bind the freehold owner.
A different line of cases was applicable in Ireland in the analogous case of easements. These reflected the greater use of longer leases in Ireland, equivalent to freeholds.
Where property is mortgaged, the mortgagee’s consent would be required. This may be inferred if the mortgagee is aware of the dedication and does not object.
Some public bodies and entities may not have the legal capacity to dedicate. Other entities may have express or implied powers to dedicate. Road authorities have express powers to lay out and construct highways.
Inference of Dedication
Where a way has been used over a long period in such a way that the owner of the land, whoever he or she might be, must have been aware that the public believed it to have been dedicated and has taken no steps to challenge this belief. A dedication may be inferred if the owner has acted so; a reasonable member of the public would infer that the way was public; it is very strong evidence of dedication and acceptance. The presumption of a highway may be rebutted by acts of ownership which are inconsistent with a public right
The nature of the location is relevant to determining the inference of a highway. Where it is patently apparent that where a commercial builder has laid out land in a particular way, that a highway is intended, then very little evidence would be required for dedication. Correspondingly, where the land is not such as is commonly laid out as a highway, an inference is much less likely to be drawn.
A public right way over a cul-de-sac is less easy to establish. A cul-de-sac is capable, in principle, of being a highway, but in very many cases, it may not be so.
If a person leaves a portion of unbuilt land abutting the highway between a property, for example, the wall of a property and the existing established highway, the inference of a highway over that additional area may be inferred where it is clearly laid out and dedicated as such.
However, just because there is an unbuilt portion of land between an existing private premises and the highway does not necessarily raise a presumption that it is so dedicated. Many private houses’ front gardens or front areas of shops are clearly not dedicated to the public. There may, of course, be an implied licence to come for the purpose of trade and visits, etc.
Open and Continuous
The use of the highway must be open and apparent. It must be as of right and not by force. Use by force or by permission negates the inference of highway unless the dedication and acceptance have already occurred.
There is no fixed period of use at common law for the establishment of a highway, unlike the position with the easement. In some circumstances, a relatively short period will be sufficient. Where the lands are clearly laid out with a clear intention, the dedication may be immediately effective.
In some cases, the question may arise as to whether interruption of use has negated the intention to dedicate. If, for example, a person has been challenged on use on a number of occasions, this may or may not, depending on the circumstances, negate the existence of a highway.
Factors for Dedication
The fact that a person is challenged over an established highway doesn’t negate its effect as such. If a person has been challenged and no legal proceedings follow, then this may indicate knowledge on the challenger’s part that it has been dedicated in the past.
The existence of notices, gates, barriers et cetera may be significant. These, however, must be in place before an initial dedication and acceptance. A notice disclaiming dedication may be significant if set in place from the outset. The locking of a gate may provide an inference of non-dedication and the circumstances.
The fact that a road is maintained at public expense is very strong evidence that it is a public way. However, if a person repairs a road over his own land, it will be more readily presumed that he is benefiting his own property.
Where the local authority has used the strip of land adjoining an established highway, then this will be strong evidence of dedication and acceptance.
Evidence of a reputation of a highway may be accepted. This may be in documents, statements, plans, etc. They should pre-date the commencement of any dispute.
Limits & Conditions
A highway may be dedicated for a limited purpose. If the terms and conditions are inconsistent with the nature of the highway, they may be void and ineffective. It may take effect as some kind of consent.
There is no common law power to charge tolls. Road authorities have such powers under legislation in limited circumstances.
A dedication may be subject to obstructions, including projecting plants and equipment, trees, overhanging roofs, and cellars.
The dedication may be for particular times of the year, for example, associated with a public market or other such rights. It may be subject to a particular purpose, such as a towpath along a canal.
“Mass paths” may exist by long use and custom in certain areas. They generally accrue only for the local inhabitants.
Retention of Subsoil
A highway is a right of passage only for the public. In principle, an owner who dedicates or is presumed to have dedicated a highway retains property in the subsoil at common law. He can transfer or convey it to another. It is presumed to be included in conveyances upon transfers of the land.
This technical ownership does not place all the burdens of ownership on the owner. It has been held, for example, that he may not be rated or subject to charges for improvements undertaken by local authorities in respect thereof.
It is generally assumed that the owner of land adjoining a highway is the owner of the subsoil to the halfway point. This presumption may be rebutted in the circumstances. It may be shown that others have exercised acts of ownership. The presumption arises even if the relevant deed describes the land as abutting the highway. The Conveyancing Act all parcels clause carries the right with the land.
Trees growing on the highway generally belong to the owner of the subsoil. He may take action against persons who damage them.
The owner cannot break open the subsoil or interfere with the use of the highway. He may be entitled to the minerals underneath, and he is entitled to lay pipes for appropriate purposes, even if he unlawfully broke open the surface to put them in place.
The owner of the subsoil may restrain the erection of wires above the highway. Subject to certain restrictions and statutory requirements and limitations, he may himself erect wires, et cetera, provided they do not interfere with public rights.
The owner may take action to eject a person who encloses or encroaches upon the relevant part of the highway. He may take action for trespass against a person who places something unlawfully on the surface or places a burden that is not justifiable under the terms of the public right.
Certain types of roads, on being adopted by the council vests on the council. In most cases, the ownership of the surface and such area as is reasonably required for the control, protection, and maintenance of the highway is only vested. The subsoil will remain with the adjoining owner in most cases.
The authority may by statute have such interest as it necessary for the purpose of the operation of the highway. Trees growing on the highway are planted after dedication or taking in-charge vests on the highway authority.
The extent of the highway will depend on the extent of the pathway and roadway concerned. The existence of a surfaced area does not mean the public is confined to that area. They may cross, under some circumstances, unenclosed land where there is no feature to indicate the limits of the highway.
Where there are fences on each side of the highway, the presumption is that the public right to pass stretches the whole width between the fences.
Where there is no defined track, the right is confined to a reasonable width having regard to the nature of the right of way. Where there is a ditch bordering the road, it is presumed the ditch itself doesn’t form part of the highway.
End & Beginning
An owner of land adjoining a highway is entitled to access the highway where his land touches it, even if the subsoil is vested in another. If, however, a strip of land, however narrow, is owned by another and has not a public right of passage, then he has no right to cross it.
The opening of an entrance onto a highway will generally require planning permission. Interference with an owner’s right of access on to the highway where it exists is distinct from the right to use the highway as such.
The private right of tangential access to the highway is subject to the public right of passage. The right of access is not limited to passing to and from the premises or the highway. It includes rights of access to walls on the boundary.
Release & Extinquishment
At common law, a highway is always a highway. The public cannot release its rights once they are acquired. This is reflected in the maxim once a highway, always a highway.
A highway could be extinguished by natural causes such as collapse into the sea, landslips, or permanent flooding. A highway may be extinguished if public access cut off by destruction or lawful stopping of the only highways leading to it.
Roads may be closed permanently under the Local Government Acts and Road Acts. See the requisite procedures separately set out.