The real hero of The Hound of the Baskervilles is Mr Fankland, of Lafter Hall. He tells Dr Watson,
“It is a great day for me, sir— one of the red-letter days of my life,” he cried with many chuckles. “I have brought off a double event. I mean to teach them in these parts that law is law, and that there is a man here who does not fear to invoke it. I have established a right of way through the centre of old Middleton’s park, slap across it, sir, within a hundred yards of his own front door. What do you think of that? We’ll teach these magnates that they cannot ride roughshod over the rights of the commoners, confound them! And I’ve closed the wood where the Fernworthy folk used to picnic. These infernal people seem to think that there are no rights of property, and that they can swarm where they like with their papers and their bottles.”
Categories of public rights of way:
There are four categories of public rights of way, or “highways” (the terms are generally interchangeable, though “highway” is sometimes used to refer to the land itself rather than the rights).
1. Carriageways, including Byways Open to All Traffic (BOATs)
The public have a right of way with vehicles over carriageways (i.e. what everyone other than lawyers call “roads”) and BOATs. Generally, “the greater right includes the lesser”, so the public also have rights of way on foot and with animals. But this is subject to exceptions, such as motorway regulations.
BOATs include footpaths and bridleways, and they are not regularly maintained by the local authority.
The term “green lane”, often used to describe unsurfaced roads or tracks, has no legal meaning.
2. Restricted byways
The public right of way over restricted byways is on foot, horseback and for vehicles other than mechanically propelled vehicles (except electric bikes which are within the scope of the right). The public may have a right to drive animals over restricted byways, but not automatically, it would have to be proved (such as by long use or grant).
3. Bridleways
The public right of way over bridleways is on foot, on horseback, leading a horse, driving animals and on bicycles (perhaps not unicycles or tricycles!), though cycling may be prohibited by local orders or byelaws.
4. Footpaths
The question for footpaths is what a walker can bring with them: “usual accompaniments”. Prams are permitted, and dogs are generally regarded as permitted, though there is no definitive ruling.
Landowner’s duties
Landowners, their tenants and other occupiers have various duties concerning public rights of way over their land. They must keep the route visible and not obstruct it or endanger people using it.
1. Gates
Gates and stiles are permitted on public rights of way, if present when the right was originally dedicated. Gates on carriageways must be at least ten feet wide, and five feet wide on bridleways. The landowner is responsible for maintaining them, but the highway authority must contribute at least a quarter of the costs (s.146 Highways Act 1980).
2. Fencing
Electric or barbed wire fencing alongside a public right of way may amount to a nuisance if the public could walk into it, and the highway authority may order the removal of barbed wire (s.164 Highways Act 1980). It has been held that keeping ferocious dogs adjacent to a footpath (and scaring walkers) is not an obstruction.
3. Farming
Famers may plough over footpaths and bridleways, provided they make good within fourteen days of the initial disturbance, or twenty four hours of any subsequent disturbance (s.134 Highways Act 1980).
Crops, other than grass, will constitute an obstruction where they overhang the minimum width (one metre for a footpath crossing a field, two for a bridleway).
The highways authority may require a landowner to cut back overhanging vegetation where it causes danger, obstruction or interference to the public (s.154 Highways Act 1980).
4. Notices
Displaying misleading notices likely to deter people from using a right of way can be an offence. This could include a “Beware of the Bull” notice if there is no bull in the field!
Generally, bulls are only permitted in fields crossed by rights of way if they are less than ten months old, or if the bull is not a recognized dairy breed and is at large with cows or heifers (s.59 Wildlife and Countryside Act 1981). A warning notice is required though.
Maintenance
The highway authority will usually be liable for maintaining public rights of way, and it is for them to prove otherwise. They are required to keep it safe and fit for the ordinary traffic of the neighbourhood, in all seasons of the year. If a highway is damaged by “extraordinary traffic” the authority may recover the extra expense of repairing the way from the person causing the damage.
A landowner with a private right of way over a highway (such as a right to use a bridleway for vehicular access) may have a right to maintain the way, but he will not have a right to interfere with the public’s use of it.
Landowners should bear all this in mind, or they could find themselves victim to a claim from a modern Mr Frankland!
