Public Right of Way in UK Law

If the position is ambiguous, the inference should generally be drawn of exercise of the less onerous right (the public right of way) rather than the more onerous (the right to use as a Green).

Some village Hampden may push down the barrier or tear down the notice: the local council may bring an action in the name of the Attorney-General against the landowner in the Courts claiming that there is a public right of way: or no one may do anything, in which case the acquiescence of the public tends to show that they have no right of way.

He ought at least to make it clear to the villagers of Bossington, Houghton and Horsebridge. They were the members of the public most concerned to assert the right, because they were the persons who used the path. It was no good the landowner speaking to a stranger who would know nothing of the public right and would not be concerned to assert it.

In order for these to be "sufficient evidence that there was no intention" to dedicate the way, there must be evidence of some overt acts on the part of the landowner such as to show the public at large - the public who used the path, in this case the villagers -that he had no intention to dedicate. Such evidence may consist, as in the leading case of Poole v. Hutchinson (1843) 11 M. & W. 827) of notices or a barrier: or the common method of closing the way one day a year.

The unifying element in these three vitiating circumstances was that each constituted a reason why it would not have been reasonable to expect the owner to resist the exercise of the right–in the first case, because rights should not be acquired by the use of force, in the second, because the owner would not have known of the user and in the third, because he had consented to the user, but for a limited period.

Section 2(6) applies, for instance, to persons who enter a public park, or a policeman who enters on a search warrant, for they enter in the exercise of a right conferred by law and are treated as if they wore invitees or licensees. But Section 2(6) does not apply to persons crossing land by virtue of a public or private way: because they are never "visitors" at all.

The law of highways forms one of the most ancient parts of the common law. At common law highways are of three kinds according to the degree of restriction of the public rights of passage over them. A full highway or "cartway" is one over which the public have rights of way (1) on foot, (2) riding on or accompanied by a beast of burden, and (3) with vehicles and cattle.