An over-weighted presumption ?

A proposition beloved of many is that, where a highway is flanked by hedges, walls or fencing enclosing adjacent land, then the width of the highway is measured from boundary marker to boundary marker. This is too optimistic !

 It follows from this hypothesis that any verge or other land between the boundary marker and the highway forms a part of the highway. This has the appeal of simplicity; however, the topic is far from simple.

Figure 1

Figure 2

A brute application of the presumption would have it that the width of a highway is always as shown by line "A" in Figure 2.  But his is not the case !

It is necessary to start from a position suggested by common sense. Let us suppose that a person who owns land adjacent to a highway decides to fence the boundary adjacent to the highway. This might be to prevent stock from straying onto the highway or conversely, in the days when highways were used as drove roads, to stop stock straying onto his land. Unless there is some reason to do otherwise, the landowner will place his fence on the outermost limit of his land. So far as he is concerned, he has marked the boundary between his land and the highway. In doing so, he has excluded all highway at this boundary and included all of his land.

If the frontage landowner has left any strip or area between the fence and the metalled surface, then this might be because he has recognised that the strip or area is part of the soft verge to the highway. This leads to a common sense presumption. If it appears that the fence, hedge or other boundary marker was erected by reference to the highway, then, in the absence of other evidence to the contrary, one may presume that the boundary marker is positioned at the boundary between the frontage land and the highway. Any verge between the boundary markers can thereby be presumed to be part of the highway: eg. Figure 2, line “A”.

Some case – law on the “fence to fence presumption”

Unfortunately, the historical case-law on this fence to fence presumption is not remarkable for its clarity.

In Neeld v Hendon Urban District Council (1899) 81 LT 405 highway rights were claimed over a strip of land which was formerly part of the waste of the manor, and which was separated by a ditch from both the metalled highway and a grass strip beside the metalled highway. The Court of Appeal held that there was ample evidence to rebut any presumption as to the extent of the highway. Lord Russell of Killowen stated:

"It seems to me very difficult to give assent to such a general proposition as this, that under all conditions where you find a metalled road bordered by unmetalled margins and beyond the margins by hedges, there is an invariable presumption that all the space between the hedges is highway. The question whether such a space is all highway would depend, to a great extent, I think, on many other circumstances, such, for instance, as the nature of the district through which the road passes, the width of the margins, the regularity of the line of hedges, and the levels of the land adjoining the road. These are all circumstances which should be taken into account before any presumption of law can arise as to the width of the highway. It seems to me that it is not safe to say, as a general proposition, without knowing the conditions of each particular case, that in such a case as I have mentioned all the space between the hedges is part of the highway." (Emphasis added).

Not all judgments are as clear as that of Lord Russell of Killowen.

 In Offin v Rochford Rural District Council [1906] 1 Ch 342, Warrington. J. stated:

". . . . . the mere existence of fences on either side of the highway is not enough to raise the presumption. You have to find whether those fences are prima facie to be taken to have been made in reference to the highway, and, therefore, to the boundaries of the highway, ..”

Thus far this is uncontentious and consistent with the Neeld Case, but then His Lordship added:

“ . . .and, further, I think that, having regard to the judgment of Vaughan Williams LJ, if you find a fence by the side of the highway, then prima facie that fence is the boundary of the highway, unless you can find some reason for supposing that it was put up for a different purpose."

Arguably, these statements by Warrington. J. do not contain any logical fallacy as such, but from any other standpoint, there does appear to a degree of circularity. Either one asks the question about whether the fence was erected by reference to the highway or one does not. This statement seems to say that a prima facie inference arises from the mere fact that the fence is “ . . .by the side of the highway . .”. However, Lord Russell of Killowen stated ( in Neeld ) that one has to take account of a number of local circumstances before drawing any inferences. Ergo, this does seem to be something of a gloss by a Divisional Court on the Court of Appeal in the Neeld Case. The “by the side of the highway” test might be scotched immediately in a case where, on an examination of local factors, there is a significant difference in levels between the fence-line and the metalled way. Arguably, it might be that this type of situation was intended to be covered by the phrase “unless you can find some reason for supposing that it was put up for a different purpose.". But, if, as a matter of fact, it is a plain as a pikestaff that the fence cannot possibly relate to the highway, then it serves no useful purpose to try to then divine why it was erected in the first place.

In Attorney General v Beynon [1970] 1 Ch 1, Mr Justice Goff stated that:

". . . the mere fact that a road runs between fences, which of course includes hedges, does not per se give rise to any presumption. It is necessary to decide the preliminary question whether those fences were put up by reference to the highway, that is, to separate the adjoining closes from the highway or for some other reason. When that has been decided then a rebuttable presumption of law arises, supplying any lack of evidence of dedication in fact, or inferred from user, that the public right of passage, and therefore the highway, extends to the whole space between the fences and is not confined to such part as may have been made up."

Unfortunately, he added:

". . . one is to decide that preliminary question in the sense that is to say that the fences may prima facie be taken to have been originally put up for the purpose of separating land dedicated as highway from land not so dedicated."

Again, this seems to involve the unhelpful gloss on the Neeld Case mentioned above.

Hale v Norfolk County Council (2000)

Hopefully, these historical anomalies have been put to rest by the Court of Appeal in Hale v Norfolk County Council (2000). There Mrs Hale owned a residential property fronting onto a highway. There was a dispute between Mrs Hale and the local highway authority, the Council, regarding a part of her garden which was immediately next to the made up carriageway. The Council asserted that part of the garden was part of the highway. The dispute came to a head in April 1992, when Mrs Hale erected several low posts and a chain on the disputed land. The Council served a notice on Mrs Hale under Section 143 of the Highways Act 1980 requiring her to remove the posts and chain. Mrs Hale failed to do so and so the Council removed the posts and chain itself. Litigation ensued and the matter eventually came before the Court of Appeal. The Court of Appeal held in favour of Mrs Hale.

Chadwick L.J. said:

“ . . . . the first question to be decided is whether the fence was erected (or the hedge established) in order to separate land enjoyed by the landowner from land over which the public exercised rights of way.. . ”

Chadwick L.J. added:

 “ . . . . In other words, did the landowner intend to fence against the highway? If that question is answered in the affirmative, then there is a presumption, which prevails unless rebutted by evidence to the contrary, that the land between the fence and the made-up or metalled surface of the highway has been dedicated to public use as highway and accepted by the public as such”

Chadwick L.J. further stated:

“ . . . . Whether it is right to infer, as a matter of fact in any particular case, that the landowner has fenced against the highway must depend, . . . . . on the nature of the district through which the road passes, the width of the margins, the regularity of the line of hedges, and the levels of the land adjoining the road; and (I would add) anything else known about the circumstances in which the fence was erected. “

To summarise, it is necessary to have regard to:
  • The nature of the district through which the road passes.
  • The width of the margins.
  • The regularity of the line of hedges.
  • The levels of the land adjoining the road.
  • Anything else known about the circumstances in which the fence was erected

Dedication and acceptance

If an area or strip has been left on the highway side of a fence or hedge, then it might be presumed that the public have acquired highway rights over it by dedication and acceptance. The flaw in this argument might, however, be that the historical condition of the highway verge has always been such that public passage and re-passage was highly unlikely – as such it would be difficult to see how dedication and acceptance could be implied. Nonetheless, the following paragraphs contain an overview of the principle.

Creation of public rights of way by dedication and acceptance

If a landowner dedicates a right of passage across his land and for use by the general public, then this may create a public highway. Such dedication may be by way of a written document or it may be implied from the fact that the landowner has allowed public passage across the route for a considerable period of years.

A public highway can also be created by public user over a period of time. This is known as "dedication and acceptance".

Dedication and acceptance at Common Law

At common law a public highway will normally be established over a route by use by the public “as of right” if the following elements are established:
  • it is open to public at large
  • the landowner has not given permission
  • there was no force
  • no secrecy
  • public right must be for passage must follow defined route
The public use should be for a period of years – but the period of user needed to establish the route will vary according to the facts of each case.

Deemed Dedication under the Highways Act 1980

Section 31 of the Highways Act 1980 has simplified the position in that, if a way has been actually enjoyed by the public as a right and without interruption for a full period of 20 years, then that way is deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it. If the public in general pass and repass over a defined route for a period in excess of 20 years, then this will normally be enough to establish that the route is a public right of way.

Section 31 of the Highways Act 1980 provides as follows:

“Where a way over any land, other than a way of such a character that use of it by the public could not give rise at common law to a presumption of dedication, has actually been enjoyed by the public as of right and without interruption for a full period of 20 years, the way is to be deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during this period to dedicate it.”

A landowner may demonstrate that he had no intention to dedicate the way as a public highway by placing an appropriate notice in close proximity to the route in question. He may also supply to the highways authority a map of his land showing the ways that he admits to have been dedicated and declaring that no further ways have been dedicated. In the absence of evidence the contrary, the filing of these documents will negative an intention to dedicate: Highways Act 1980, s31(6).

Unfenced land

If the way crosses open land and is not fenced, the presumption is that the width of the highway is the width of the made up way or beaten track only.

In Easton v Richmond Highway Board (1871) LR 7 QB 69, an unfenced metalled way crossed a village green and there was no difference between the grass abutting the way and the rest of the green. Cockburn. J. stated:

"It cannot be meant that the whole green was a highway, and the state­ment is expressly that the public have not exercised any greater or other right of passage over the grass adjoining the metalled road than they have over the rest of the green. In the first place, a highway may exist which is not metalled road at all; but generally a part is metalled and a part left which is not hard road; and, in general, when the highway is between two fences all the ground that is between the fences is presumably dedicated as highway, unless the nature of the ground or other circumstances rebut that presumption. In the present case there are no fences, and there is nothing to raise the presumption that one part of the open green more than another beyond the actual road has been dedicated.”

Drains and ditches

Simcox v. Yardley R.D.C. (1905)

In Simcox v. Yardley R.D.C. (1905), the defendant highway authority filled in a ditch adjoining the plaintiff’s property and also cut a hedge and part of the bank on which the hedge grew. The local highway authority was ordered to pay damages to the plaintiff and to replace the ditch.

The highway had been laid out in an Enclosure Award to a width of thirty feet. It appeared that the predecessor of the plaintiff had to fence the land awarded to him. Swinfen Eady J. determined that the hedge and ditch had been made when the land was enclosed pursuant to the award and that no part of the ditch was on the highway. He took into account evidence of purported acts of ownership by both parties but concluded that the evidence in favour of the plaintiff was more persuasive:

“ The defendant council adduced some evidence as to the ditch, but none as to the hedge. The plaintiff from time to time cleaned the ditch. As to the evidence of the defendant council, it must be observed that the frequency with which the ditch was cleansed has been exaggerated. The evidence of one witness that after rain he cleared away leaves so that the water could run into the ditch is the probable explanation. The position of the drain pipe does not look as if the highway authority was the owner of the ditch. The plaintiff relies on the fact that, when building on the north side, the building lessee filled up the ditch and put in a pipe. The acts of ownership are of much more weight than the acts of a surveyor to let water run freely. “

This analysis shows the importance of having regard to the particular facts of each case.

Chorley Corp. v. Nightingale [1906] KB 612

In Chorley Corp. v. Nightingale [1906] KB 612, it was held, at first instance, that there is no rule of law that a ditch running alongside a highway between the road and the fence cannot be dedicated as part of the highway merely because it is not part of the roadway and cannot be used by the public for purposes of passage. This ruling was subsequently upheld by the Court of Appeal.

The relevant facts were stated by Kennedy J. as follows:

“ On the opposite side of the road to that on which the defendant's land lay was some land belonging to the Chorley Colliery Company, which land sloped towards Pilling Lane and formed a watershed. The ditch which existed in Pilling Lane was the natural waterway for this watershed, and the whole of the water from the watershed naturally and of necessity drained into the ditch. The ditch was wholly situated within the area contained between the old fences of Pilling Lane. The water collected and passed' along this ditch for a certain distance and was then conveyed under and across Pilling Lane by a conduit on to the defendant's land. The ditch and conduit were constructed for the passage of the water, were essential to the existence of Pilling Lane, and formed a necessary part of Pilling Lane as a highway. A pipe placed in the ditch for the purpose of conveying the water to the conduit above and the ditch was begun to be filled up, in 1885, and the filling up was completed and the site of the ditch added to the roadway in 1894.” (Emphasis added)

The local highway authority, Chorley Corp., made up the surface of the way, including the site of the former ditch, and sought to recover a proportion of the expenses of doing so from Mr Nightingale. Eventually, the Corporation sought a charge for an order for enforcing the charge by sale. Mr Nightingale’s defence was that the site of the ditch was, historically, part of the highway maintainable at the public expense and, as such, he was not liable to reimburse the Corporation’s expenses. The Corporation agreed that Pilling Lane was a highway maintainable at the public expense, but it contended that the highway had been recently widened by, amongst other things, filling up of the ditch and that this added portion of the roadway was not repairable by the inhabitants.

Kennedy J. said:

“ I am not prepared to say that the decision of the learned county court judge is wrong in point of law. So far as it is a judgment of fact, if there was any evidence to support it, this Court cannot reverse it. He has found, after hearing the evidence and viewing the locality, that the ditch was wholly situated between the old fences of Pilling Lane; that the ditch and conduit were constructed for the passage of water flowing down from the watershed, and were necessary to the existence of Pilling Lane and formed a necessary part of Pilling Lane as a highway; that there has been a dedication of the whole area between the two original fences of Pilling Lane; and that Pilling Lane has not been widened.”

Kennedy J. went on to say:

“ The principal argument of the appellants' counsel was that a ditch cannot in point of law be treated as part of the land dedicated to the public as a highway. It was argued that land cannot be treated as part of the highway which cannot be travelled over by the foot or (if it be a carriage­way) by the carriage of the traveller. We are not persuaded of the correctness of this view. It appears to us that the whole of a space including a ditch may be dedicated to the public as a highway, the ditch being treated as an obstruction or excavation, subject to which, so long as the obstruction or excavation continues to exist, the highway is dedicated, but the surface of which, if by natural or other causes the ditch is filled or silted up wholly or partially, thereupon becomes wholly or pro tanto land which must be treated as part of the original highway.“

In reading this passage, it is important to remember that Kennedy J. had previously stated that the ditch and conduit were constructed for the passage of the water, were essential to the existence of Pilling Lane, and formed a necessary part of Pilling Lane as a highway.
He concluded on this point:

“ We do not see any legal objection to the proof of such a dedication of the whole space, although it includes part which for the time being may not be able to be used for passage, as judge has found as a fact in the present else any established principle of law or judicial decision which compels us to hold, if the obstruction or excavation which practically prevented the use of the whole disappears, that the inclusion of the formally obstructed or excavated portion which thereupon ensues must be treated as an addition to the highway so as to cast on the frontagers under the concluding portion of s150 of the Health Act, 1875.”

Hanscombe v Bedfordshire County Council [1938]

In Hanscombe v Bedfordshire County Council [1938] All ER 944 a highway authority placed pipes in a ditch belonging to the owners of land abutting on the highway, without the owners' knowledge or consent, and then filled in the ditch. The pipes effectively drained both the adjoining land and the highway. The owners of the land sued the highway authority for, among other things, trespass. The highway authority pleaded that the acts done by them were improvements in the highway which they were authorised to carry out by statute. Farwell J. held in favour of the landowners and against the highway authority.

The facts of the case were that the ditch abutted immediately on a road leading from Henlow towards Hitchin. The road was bounded on each side by a hedge or a fence and the ditch was within and on the road side of a fence. The land immediately abutting the portion of the ditch in question was in the occupation of the owners' tenant. The ditch served for many years to carry the overflow from a pond situate on the owners' land on the east side of the road.

The ditch, starting from the pond, ran in a north westerly direction, and was joined by another ditch running approximately due west; when it proceeded in a westerly direction for a short distance and then turned almost due north and, prior to 1937, ran along the high road past the owners' land to a point somewhere to the north of that land. The land to the east of the highway sloped upwards and the surface water from that land drained into the ditch. Farwell J. commented that the ditch was undoubtedly of importance to the owners' and their predecessors in title, both to carry away the overflow from the pond and to carry away the surface water from the higher land to the east of the road. The ditch was also required to carry off the surface water from the road, and channels had been cut into the grass verge, between the road and ditch, to carry such water into the ditch.

The ditch was at all times cleansed and kept in order by the owners' servants or agents. Moreover, the owners' predecessors had from time to time done certain works in connection with the ditch.

The highway authority became involved when, in 1937, a heavy lorry passing along the road ran to near to the ditch and one wheel slipped over the edge of it. It was found difficult to extract the lorry from its position and, in doing so, the bank of the ditch to the roadside was broken away. The council did their best to repair the bank but found it impossible to do so satisfactorily. Accordingly, they laid six inch pipes in the drain to carry away the water and then filled in the ditch completely. Farwell J. was satisfied that the method of repair was a proper one. However, if the ditch was the owners' property, then these acts constituted a trespass nonetheless.

Farwell J. stated:

"The rights of the public in a high road are to pass and repass along it, and their right to use the way for that purpose is not limited to that part of the way which is metalled or made up, but extends to the whole highway. When, therefore, the whole portion of a highway which is bounded by a fence or hedge is capable of being used to pass and repass, the whole portion is deemed to have been dedicated to the public.[1] When, however, a portion of the whole is a ditch which prima facie is not adapted for the exercise by the public of their right to pass and repass, the presumption, in my judgment, is that the ditch does not form part of the highway. This is a presumption which may be rebutted, but the onus lies on those who assert that the ditch is part of the highways. In the present case there is, in my judgment, no sufficient evidence to rebut the presumption."  (Emphasis added)

Farwell J added:

"Further, I think that in a case of this kind the presumption against the ditch being a part of the highway is extremely strong. No doubt the ditch serves a useful purpose in draining the road, but quite obviously it was, and is, of the greatest importance to the owner of the adjoining land on the east to preserve his rights in it. It was almost essential for draining his land and, to my mind, it is impossible to suppose that any owner, when dedicating a road, could have intended to part with his rights in the ditch."

However he went on to say:

"In cases where the only purpose of the ditch is to drain the highway, the presumption may be more easily rebutted, but that is not so in this case, and the defendants have failed to satisfy me that the ditch is vested in them."

Taking these comments together, the default position would appear to be that, in the absence of countervailing evidence, a ditch is presumed to be owned by the frontager notwithstanding that it drains a highway along with his property.

Width defined by statute

For the purposes of sections 134,135,137A of the Highways Act 1980, Schedule 12A provides certain minimum and maximum widths for enforcement purposes.

For these purposes the “minimum width” and “maximum width” of a highway are as follows:

In any case where the width of the highway is proved, that width is both the “minimum width” and the “maximum width”.

In any other case—

(a) the “minimum width” is –

(i) as respects a footpath which is not a field-edge path, 1 metre,
(ii) as respects a footpath which is a field-edge path, 1.5 metres,
(iii) as respects a bridleway which is not a field-edge path, 2 metres, or
(iv) as respects any other highway, 3 metres; and

(b) the “maximum width” is –

(i) as respects a footpath, 1.8 metres,
(ii) as respects a bridleway, 3 metres, or
(iii) as respects any other highway, 5 metres.

Section 134 deals with disturbance of a footpath or bridleway by ploughing or other agricultural practice. Section 135 deals with other works on agricultural land disturbing a footpath or bridleway. Section 137A deals with interference by crops. These defined widths do not apply for other purposes.

[1] Somewhat debatable in light of the Court of Appeal in the Neeld Case (see above).


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