Lost Highways

The Country Land and Business Association's report on rights of way, The Right Way Forward (February 2012) highlighted a number of concerns which landowners have with the current rights of way system.

Chief among these, perhaps, is their concern over "lost highways", which is neatly summarised in the following extract from the report: "It is wholly wrong, and defies all sense of propriety and logic, that paths which have been unused for decades, centuries or even at all, can be 'discovered' out of the blue and opened up across land ... when there has been no use within living memory and there is no evidence of a path on the ground."

To understand how such highways can suddenly "appear" requires an appreciation, first, of the legal maxim "once a highway, always a highway" and, second, of the limitations of the Definitive Map and Statement (the official record of public rights of way).

As a preliminary point, however, a claim, based on historical evidence, that a highway exists along a particular route should be distinguished from a claim that a right of way has been created through twenty-years use by the public (although, for the landowner, either claim can seem to appear from nowhere).

"Once a highway, always a highway"

The meaning of the legal maxim "once a highway, always a highway" is relatively straightforward: it means that a public right of way (such as a footpath) does not cease to exist if no-one uses it. "Mere disuse of a highway cannot deprive the public of their rights. Where there has once been a highway, no length of time during which it may not have been used would preclude the public from resuming the exercise of the right to use it if and when they think proper" (Harvey v Truro Rural District Council (1903) per Joyce J).

Because of this maxim, a highway can be shown to exist, not on the basis of recent use, but on historical evidence, e.g. old maps, guidebooks, journals. The difficulty for a landowner is that there is no way to prevent a "lost" highway from being rediscovered, even though the existence of the highway may be universally unappreciated until the relevant evidence is assembled by the claimant.

The difficulty is particularly pronounced for purchasers as, of course, these "dormant" highways will not be recorded against the vendor's title and no purchaser is likely to carry out detailed historical research regarding the existence or otherwise of public rights across the land. At best, a purchaser will make...