Landowner, Tenant and Occupier
| Author | Angela Sydenham |
| Pages | 45-58 |
5.1 Introduction
Owners and occupiers of land crossed by a public right of way must keep the route visible and not obstruct or endanger users.
5.2 Legal interest in public rights of way
5.2.1 Publicly maintainable highways
Where the public right of way is publicly maintainable, the surface is vested in the highway authority for highway purposes. The landowner is deemed to have a concurrent fee simple, which enables him to use the right of way for his own purposes provided they do not interfere with the rights of public or disturb the surface of the road or path. Where public rights of way are concerned, the landowner usually retains an interest in the subsoil. He also owns the airspace above the highway. This enables him, with the consent of the highway authority, to build cellars or tunnels under the road, or where he owns property on both sides, a building or bridge over the road.
Landowners do not own the subsoil under many major roads. Often, the highway authority will have purchased the land on which the road is built either by a compulsory purchase order or agreement.
46 Public Rights of Way: The Essential Law
Adjoining landowners have, subject to planning control, a right of access to the highway from any point of their land
5.2.2 Non-publicly maintainable highways
The landowner retains the entire legal interest in the land, but it is subject to the right of passage of members of the public and the rights of control vested in the highway authority.
5.2.3 Statutory restrictions
Although the landowner retains title to the land, his use of the land over which the highway runs may be restricted. For example, without the consent of the highway authority, he may not construct buildings over or under the highway.
5.2.4 The presumption usque ad medium filum
Where a right of way separates land in different ownership, there is a presumption that the adjoining landowner owns the land up to the centre point of the track adjoining his property (usque ad medium filum).
This presumption may be rebutted by evidence that ownership of the soil of the track is vested in one adjoining landowner alone or in a third party. However, it will not be rebutted where there is a description in a conveyance that the property is bounded by a road, nor where the property is described by reference to red edging on a plan and the plan does not include the road.
Whether the presumption applies to highways set out under inclosure awards depends on the construction of the award. The presumption rests
EWHC 2668 (Ch).
on the argument that each of the adjoining owners contributed land to the formation of the highway. Where it is a new road, this argument would not be relevant. It may be that the road would remain vested in the lord of the manor unless he was compensated for loss of his rights in the soil.
In new developments, roads are often retained by the developer and do not pass with a sale of the plots. The developers will make up the road to an agreed standard, and the highway authority will adopt the road.
5.2.5 Reservation of implied rights
It is generally accepted that, where a landowner dedicates a public right of way, that dedication is limited to granting the public a right of passage. The landowner is therefore able to use the land over which the right of way exists for his own purposes and to grant others rights insofar as those uses do not derogate from the dedication. Where the public right of way is publicly maintainable so that the surface vests in the highway authority for highway purposes, the landowner will have a concurrent interest in the fee simple.
5.2.6 Adverse possession
It is not possible to acquire title to a highway maintainable at public expense by adverse possession.
It is possible that title could be obtained by adverse possession to a highway which is not publicly maintainable.
5.2.7 Effect of extinguishment of right of way
The nature of the public’s interest in a publicly maintainable right of way is a determinable fee simple. So, if the highway is extinguished, the highway authority’s legal interest comes to an end, and the landowner has the fee simple in the surface which is no longer subject to a right of passage.
48 Public Rights of Way: The Essential Law
5.2.8 The cut-off date
Sections 53 to 56 of the CROWA 2000 provide for the extinguishment on 1 January 2026, subject to certain exceptions, of unrecorded rights of way created before 1949. If the extinguished public right of way was reasonably necessary for a landowner to access his land, it will be converted into a private right of way. It does not matter whether the person was using the existing public right of way on the cut-off date or is able to use it.
5.3 Claims to new rights of way by user
As explained in Chapter 3, new rights of way may arise from user under either common law or section 31 of the HA 1980. In order to rebut any inferred or deemed dedication, the landowner should erect notices indicating that there is no right of way and lodge a statement and declaration under section 31(6). These provisions are discussed in more detail at 3.5.4.
5.4 Maintenance responsibilities
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