RIGHTS OF WAY BILL. (Hansard, 7 June 1932)

§ LORD BUCKMASTER
My Lords, I regret that I must ask your attention to this Bill at so late an hour in our proceedings. The Bill is one which I trust you will think serves a very useful public purpose. In order to explain its provisions it is necessary that I should make a very short reference to what are known as rights of way in this country. There are two rights of way with which we are all familiar. The first is the private right of way and the second the public right of way. A private right of way is a right possessed by the owner of certain property to pass and repass, for the purpose of his property, over the land of another. A public right of way is a right possessed by everyone to use the King's highway, for the purpose of passing to and fro, and I would like those who are interested in the Bill which we last discussed to remember that that right is one of an absolute quality for every person who uses the road.
The manner in which these rights arise differs. So far as a private right of way is concerned the old principle of the law was that it could only arise by grant or Statute, and as it never did arise by grant, and seldom by Statute, it was difficult to ascertain how it arose at all. So the law assumed that there had been a grant if you could show that the right had been exercised for a time which, according to the legal phrase, was "time beyond which the memory of man runneth not to the contrary." The law in its wisdom fixed the first year of Richard I as the time beyond which the memory of man did not run, and I should like to have heard what that magnificent but rather irascible sovereign would have had to say upon that subject. The result of that was a confusion in the 637 proof of these rights of way, which led to the passage of an Act exactly one hundred years ago, in 1832, by which it was provided that if you could prove there had been enjoyment uninterrupted as of right for twenty years, that should not be defeated merely by showing that the right had arisen at an earlier date. If you could show that it had existed for forty years your right would be absolute against everybody.
The purpose of the Bill is to make these two principles applicable to public highways. The right of a public highway has always been deemed to lie in dedication and that dedication may be established by very short and simple acts, or presumed from long usage, and one of the difficulties which existed has been that if you have land for a long time in settlement you never found the absolute owner against whom dedication could be presumed, and although the public had exercised rights for a very long time nothing resulted when the property got into an absolute owner's hands. It is felt to be a grievance, and has caused frightful trouble and confusion in the Law Courts, because it is very difficult to get the evidence of older people and there is no limit of time which compasses your inquiry. I heard of a case only the other day in which the landowner lost and had to pay the expenses of the trial, amounting to £16,000, because these cases are very expensive. The proposal of this Bill is to assimilate the law with regard to public highways to that of private highways, and I trust your Lordships will think it is a wise and sensible proposal.
The history of the measure is rather interesting. It has been nine times before the House of Commons, it has passed its Second Reading twice without opposition and it has twice got as far as the Committee stage in the House of Commons, but no further. It is one of those small legal Bills which never excites the interest of a Government. It has been left to private members to introduce. The result, as your Lordships know, is that a Private Member's Bill in another place is, according to your fancy, either like a weed in a well kept garden or a flower in a garden of weeds. Whichever it is, it has not much chance of existing. Twice it has been before your Lordships' House. It was last 638 brought before you in 1913 and referred to a Select Committee presided over by a lawyer, and was reported to tile House. The House without opposition adopted the Bill, which is this Bill which I am producing to you. It is not this Bill literally and exactly, for this reason. All of your Lordships know that when a Bill passes through the tangled undergrowth of Committee in another House it comes out with strange burrs adhering to it. There is one such burr at the end of Clause 1, in which there is a statement that you have got to show that there was no person during the twenty years in possession of the land, "including access to the sea," capable of dedicating such way.
I have not the slightest idea what that phrase means in that clause. It is perfectly incomprehensible. The clause reads as follows: (1) Where a way leading from one public place to another upon or over any land has been actually enjoyed by the public as of right and without interruption for a full period of twenty years, such way shall be deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate such way, or unless during such period of twenty years there was not at any time any person in possession of such land, including access to the sea, capable of dedicating such way. I cannot imagine how those words were introduced. It might have been some person whose Imperial ideas were inflamed by thinking of the seas as the highway of our Fleet, or some person disturbed by thoughts of bathing or by the approach of the summer holidays. There is no conceivable reason why the words should have got into the Bill, and if your Lordships do me the honour of reading the Bill a second time I will take care that these words are omitted in Committee.
Clause 1 has also got another burr upon it. Somebody has introduced the statement "leading from one public place to another." That is introduced, I suppose, with the idea that it is a definition of a highway. It is not necessary that a road should lead from one public place to another in order to be a highway. Your Lordships can recall many highways in London which are nothing but cul-de-sacs. There are courts and squares which do not lead from one public 639 place to another, but which are public highways. The phraseology of Clause 1, I think, needs altering. It provides, as you will see, that if during a period of twenty years there is a person who cannot dedicate, then twenty years is not enough, but after forty years it is assumed that there was a person capable of dedicating. Then there is a proviso greatly in the interest of the landowner. It is as follows: (3) A notice by the owner of the land over which any such way passes inconsistent with the dedication of the way as a highway, placed before or after and maintained after the commencement of this Act in such a manner as to be visible to those using the way, shall, in the absence of proof of a contrary intention, be sufficient evidence to negative the intention to dedicate such way as a highway— and so on. That is a very clear and wise statutory provision, about a matter which has often been the subject of controversy.
I do not think I need trouble your Lordships with subsections (4) (5) and (7). Subsection (8) may require examination in Committee. I do not quite know how that got in. There is another thing which is very important, and that is in subsection (6), a provision that you may look at any map, plan, or history or any other relevant document. Hitherto the decision of questions in dispute about these highways has been enormously complicated by the fact that the law of evidence relating to the admission of maps is so strict. For instance, a tithe apportionment map, which is one of the best maps you could possibly get, is not a map which could be admissible in evidence for this purpose. This clause does not provide that a map admitted in evidence proves what it says; it merely says that a Judge may consider this and other relevant documents. It is a wise provision, which I think must help both parties alike to simplify the issue and get a speedy decision. Therefore I hope that this Bill, after its rather weary history, and I hope not too wearisome recital, after its many vicissitudes and disappointments, will to-night at least find some safe shelter in your Lordships' House. I beg to move.

§ THE LORD CHANCELLOR
My Lords, I am sure you are obliged to the noble and learned Viscount for his explanation of this Bill. As he explained, the effect 640 of settlements upon the law of dedication of highways is a serious obstacle to the proper development of rights of way, and it needs a remedy. As the law now stands, nobody can dedicate a way except an owner in fee simple, and where the land is settled there is no such owner, and no one can make a dedication. Now, it does seem reasonable that where a way has been used for forty years no presumption as to dedication should fail by reason only that there was not at any time during the period anybody capable of making an effective dedication. So much for the object of subsection (2) of Clause 1.
There is an even more important provision, and that is the point about maps and histories being used as evidence. It is very desirable that such documents should be admitted in evidence for what they are worth. Hitherto the law has been that you cannot admit the tithe map, spoken of by the noble and learned Lord, but it is far better to allow such maps to be admitted and to leave it to the tribunal to decide whether any particular map or history is of good evidential value or not. This will certainly cheapen litigation. One of the chief difficulties in such cases is the great number of witnesses. I have known in my own experience, I should think, sometimes thirty witnesses. I remember one case where eight of them were over ninety years of age, and to go round to all their houses and to examine them makes a very expensive class of case. Therefore I hope your Lordships will give a Second Reading to this Bill.
But I do want to point out to my noble and learned friend one or two points which I ask him to consider before the Committee stage, because the drafting of the Bill—it is not his drafting, I know—is not entirely satisfactory. I entirely agree with him with regard to the words "including access to the sea" in subsection (1), that nobody knows what they mean. I rather think that their object here is to make sure that the sea is regarded as a public place for the purpose of the section, but it does not have this effect the way the clause is drafted. May I draw his attention to subsection (2) which seems marred by the phrase about "sufficient evidence," which also occurs in subsection (1). One would have thought it would be better to put the clause the 641 other way about; I mean that it should say in effect that where a way has been used for forty years no presumption of dedication which would arise if an intention to dedicate were established or could be inferred by the Court, shall fail by reason only that there is no person capable of making an effective dedication of the way. Again, I would suggest to my noble and learned friend that he should look at subsection (4). One would have thought that it should be widened so as to extend it to tenancies of less than a year. That is a matter which wants consideration. There are cases, as he knows, where a six months user has sometimes been held to be sufficient for dedication.
I will not go into all the clauses at this late hour. I will take an opportunity, if I may, of seeing the noble and learned Lord about the matter. I agree with him with regard to subsection (8), which appears to be entirely covered by subsection (7) and might well be omitted. Where the dedication of a highway has been proved with the assistance of the provisions of the Bill it seems quite obvious that the highway will have exactly the same incidence as where the dedication has been proved in the ordinary way. But undoubtedly this is a useful Bill, and one which, speaking as a lawyer and not personally, I think it is unfortunate was not passed years ago, and I hope your Lordships will give it a Second Reading.

§ LORD BANBURY OF SOUTHAM
My Lords, I am sorry to hear my noble and learned friend Lord Buckmaster say that he intends to move on the Committee stage an Amendment in respect to a right of way which leads from a public highway to a private place. I do not know whether he quite realises that there are a great number of rights of way leading from a highway to a farm over certain land. If those are to be made public rights of way and to be extended, the result, of course, would be very detrimental to the holder of the land and to the tenant. My noble friend must realise that the idea that the ordinary tourist is quite a nice fellow, who never does any harm, is a mistake. He does not walk across the path in order to contemplate nature, as Lord Crawford would do; what he does is to get on to the path and leave all the gates open, so that all the cattle can get out, and if it is a field laid out 642 with grass, and he has a lady with him, they roll about on the grass and do a considerable amount of damage. The idea that they are going to enjoy fresh air and that sort of thing is really all nonsense. I hope that my noble friend, when we come to the Committee stage, will at any rate leave what the House of Commons has put in—namely, that this Bill shall not apply to a right of way which leads from a public highway to a private place.

§ LORD BUCKMASTER
My Lords, I am much obliged for the suggestion of my noble friend, but I would point out to him that, notwithstanding my rather elaborate explanation, as I thought it, he seems to have confused two things—namely, a private road to go to a particular house and a public road to pass along the highway. Such a thing as he suggests could never happen at all, because it is not the right of the public, it is the right of the people who use the path to pass backwards and forwards, and it is the farm which has access to the highway. It has nothing to do with the question of the highway. We need not discuss it prematurely, however. I can only assure the noble Lord that the question was not out of my mind, but I think he is under a quite needless misapprehension.