Byway and Bridleway Extra
Parliamentary Inclosure and s.10 of the ‘General
Inclosure Act 1801
Peter McKay wrires:
writes: An article in Byway and Bridleway, 2004/2/16, examines s.8, 9 &
11 of the General Inclosure Act 1801, and this paper sets out to examine s.10, but first,
to put matters in context, examines the state of highway legislation applicable in 1801.
The Statute of Winchester 1285, in order to combat highwaymen, commanded that
highways from market towns to other market towns be widened … so that there shall
be nowhere a person could hide with ‘evil intent’ The Highway Act 1555 introduced
legislation for amending highways ‘being now both very noysome and tedious to travel
in & dangerous to passengers and carriages … in parishes leading to market towns’,
which distinction was again repeated in s.25 of the Highway Act 1773, requiring ‘every
cartway leading to any market town to be made, supported and maintained 20 feet
wide at the least’. It was not until the Highway Act 1835, after the General Inclosure
Act 1801, that all highways, including bridleways and footpaths, were to be maintained
due to statute, which provision is continued by s.36 (5)(a) Highways Act 1980, which
says that a highway shall be maintained at public expense if it was a highway before 25
August 1835. The public have right of use of all highways, whether or not maintained at
public expense due to statute.
Examining now s.10 of the General Inclosure Act 1801 we read: ““And it be further
enacted, that such commissioner or commissioners shall, and he or they is and are
hereby empowered and required to set out and appoint such private Roads…”
The power here is to set out roads in a similar way to s.8, except as ‘private’ since
the public would not pay for their making, nor ultimately foot the repair bill, i.e.,
as for roads that did not lead to market towns. The use of the word ‘private’ in this
context is in its common, everyday meaning, as used frequently in the Highways Act
1980; perhaps the most illustrative being s.232 which says “to be a private street,
and thereupon the land is deemed to have been dedicated to the use of the public
as a highway and to be a private street.” The Parliamentary Board of Agricultural
Survey shows common use of the word ‘private’ in this context at that time, e.g.,
Cambridgeshire 1794: “The public roads in general are tolerably good, the private
roads are very indifferent and it is not very probable they will be much improved under
present legislation; Huntingdonshire 1811: “The turnpikes are generally good, but the
private roads are very much neglected; and Wiltshire 1811: “There are no less than 10
principle turnpike roads, the private roads, like those of all other parts of the kingdom,
are good or bad in proportion to the plenty or scarcity of materials.” Also note that no
minimum width is specified.
S.10 of the 1801 Act also includes: “Bridleways, Footways, Ditches, Drains,
Watercourses, Watering Places, Quarries, Bridges, Gates, Stiles, Mounds, Fences,
Banks, Bounds and Land Marks.” Note that the initial prefix ‘private’ may or may
not apply to the above items, there being no need to distinguish between those
maintained at public expense due to statute, and those that were not, since none of
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these items were covered by statute at that time, and, of course, a ‘private rights land
mark’ would be a nonsense. Note also that whilst the awards themselves often list
bridleways and footpaths as ‘public bridleway’ and ‘public footpath’ this is simply use
of a common name. These being often set out as rights of way over allotted land, it
does not mean they were unlawfully set out under s.8, and that calling them ‘private
bridleway and ‘private footpath’, according to the definition in the Act, would have led
to misunderstanding then in same way as it would today.
S.10 continues: “ … in, over, upon and through or by the sides of the allotments to be
made and set out in pursuance of such act, as he or they shall think requisite, giving
such notice and subject to such examination, as to any private roads and paths, as
are above required in the case of public roads”: The private roads, bridleways and
footpaths are subject to the same extensive right of inspection and objection as were the
public roads set out under s.8 and reported in B&B 2004/2/16, which would not have
been case if public had no interest in their use.
“ … and the same shall be made, and at all times for ever thereafter be
supported and kept in repair, by and at the expense of the owners and proprietors for
the time being of the lands and grounds directed to be divided and inclosed, in such
shares and proportions as the commissioner or commissioners shall in and by his or
their award order and direct.”: This empowers the commissioner to direct who shall
carry out the work, and awards frequently do this, sometimes just a single person and
at other times many persons. Note however that the work does not have to be carried
to the acceptance of justices of the peace as for public roads. However those directed to
carry out the work would need to know to what standard to aim, and who could enforce
this work, and to satisfy this requirement awards often specify a level of use, by saying
whose use the roads were for. In a similar way, that is used in the Highway Act 1980,
which defines the standard to be that suitable for “the traffic which was reasonably
expected to use it,” in s.58(2)(a). This statement should not be confused between saying
who was entitled to use a private rights road (there being no power to set out private
rights roads) and such a meaning requiring the meaning of the word ‘private’ to be
changed from who pays to who has rights.
The above logic was not put before Sedley J when he considered the Dunlop case, and
his case report says “The word ‘Private’ would create a nominal distinction without a
legal difference”, nor was this logic put before the judge in the Andrews case, reports
of that judgement making no mention of s.10, concluding that it was unlawfully set out
under s.8 being less that minimum width.
Perhaps the greatest problem is the use of the word ‘public’ in the Act and
the awards being used to mean both ‘public funded’ and ‘public rights’, with these
documents being read by rights of way researchers who automatically, but incorrectly,
assume the word ‘private’ means ‘private rights’, especially due to the directions that
specify the standard required and who may enforce. Regarding the effect of these
directions reference ought be made to B&B 1999/10/80 concerning The King against
J. Richards and Five Others, 1800, where a private road was out of repair. The road
was used by all persons willing to pass and repass at their free will and pleasure, but the
case failed as it was not brought by those for whose use were identified in the award,
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and this case may have well have influenced the drafting of awards made after 1800.
However the fact remains that they were set out and made, with the public entitled to
use and enjoy, but without having any power under the Inclosure Act to enforce their
repair.
Awards read in the above context frequently are found to say what they could
be expected to say, which ultimately provide the evidence that this is the correct
interpretation, and it is also of note that the General Inclosure Act 1845, being written
after the Highway Act 1835 made all highways maintainable at public expense, has no
provision for setting out private roads.
Several of the early Highway Acts have been examined, to identify when legislation
was introduced, and when the surface of highways was ‘adopted’, resulting in this
glossary of common names and dates. This shows that highways were legislated for in
stages, depending on their destination, and adoption of the surface was also in stages.
This exercise identifies the King’s Highway as being that subject of The King’s Order,
the 1285 Statute of Winchester, which then enables the other highways to be defined.
Highway Acts identified as being of particular relevance are 1555, 1691, 1773, 1835, &
1980.
Common
Name
Definition
Initial
Legislation
Legislation
for adoption
of surface,
i.e., making &
repair
The Kings
Highway
Highways from Market
Towns to other Market
Towns, as ordered by the
King, 1285, and later those
leading to Market Towns; if
that definition is broader; as
per 1555 Highway Act
1285 / 1555
1691
Common
Highway
Every highway other than
the The King’s Highway
1773
1835
Public Road
Highways whose surface is
adopted for maintenance
at public expense, likely
including The King’s
Highway from the outset
---
(1285)/1691/1835
Private Road
Every Highway other than
Public Roads
1773 & Local
Acts
Un-adopted
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Other names
Parish /
Parochial Road
Every Highway in Parish,
other than The King’s
Highway
1773
1835
Cross Road
Highways traversing several
Parishes, crossing The King’s
Highway, but not leading to
Market Town
1773
1835
Bridleway & Footpath
1773
1835 / 1949
Public Rights
of Way
Bridleway &
Footpath (Also
commonly
prefixed “Public”
to denote right
of way and not
adoption of
surface)
The application of the definition ‘private road’, to a highway with an un-adopted
surface, identical in meaning to that still in use in the Highways Act 1980 was found
to be common and widespread. One particular illustration is the Parliamentary
Agricultural Surveys, e.g., 1794 for Shropshire “The roads in this county, both turnpike
and private, are generally bad, the private ones, particularly in the clayey parts of the
county are almost impassable, ……” for Northamptonshire “particularly in regard
to the private or parish roads, which are in many places in a ruinous situation”, &
Cambridgeshire “The public roads in general are tolerably good; the private roads are
very indifferent and it is not very probable that they will be much improved under the
present regulations “, 1811 Huntingdonshire “The turnpikes are generally good, but
the private roads are very much neglected in many parts of the county” & Wiltshire
“There are no less than ten principle turnpike roads… The private roads, like those of all
other parts of the Kingdom, are good or bad, in proportion to the plenty or scarcity of
materials”, etc., etc. Additionally there are examples of surplus turnpike revenue being
used to repair private roads, court case examples of public road being enclosed, and
becoming a private road, and of the diversion of private road to be more commodious
for public use, which included signing away title in the land being under Highway Act
1773 provisions, etc.
With the definition of ‘private road’ clearly understood, the meaning of s.10 of the 1801
‘General Inclosure Act’ is clear: meaning private maintenance and not private rights;
maintenance is what s.10 is all about.
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I have studied a four-page report on the Andrews case, and found it not to even
mention s.10 of the 1801 General Inclosure Act, it being presumed that the ‘public
footpath’ had been set out under s.8. When reading s.10, one can see that the word
‘private’ only precedes road, not bridleway or footpath, and the power did exist in s.10.
It should also be noted that had the word ‘private’ preceded bridleway and footpath it
would not have been incorrect, just unnecessary, since at that time there was no need
to differentiate between public-maintained and private-maintained bridleways and
footpaths, legislation concerning their public maintenance not being in force at that
time. It should also be noted that the word ‘public’, often used by commissioners in
their awards to prefix bridleway or footpath, defines ‘public right of way’ and does not
imply public adoption of the surface. Given this interpretation, one could anticipate the
Andrews decision being reversed.
The Chilman case has also been studied, which, along with Andrews, establishes
the basic principle that one can, and ought, go back to first principles when establishing
the legal meaning of inclosure awards, and that any event that has occurred in belief
that the meaning was different may be disregarded. The often-reported Katherine
Austin’s case (1683) has been considered, and it has become clear that this case failed
due it concerning a highway to destinations that were not covered by legislation at that
date, and not because the way in question was not a highway.
The occurrence of dual designation on awards, often for private roads, e.g., ‘private
road and public bridleway’, was considered, and it was established that this is due to
the status before inclosure. The above referred diversion order includes diversion of a
bridleway to Risbury, a route that was subject to inclosure, with an award that shows
before and after inclosure plans. The route in question is shown on the before-inclosure
plan, and recorded on the after-inclosure plan as ‘private road and occupation road
and public bridleway’. Others shown on the before inclosure plan are ‘private road and
occupation road and public footpath’, with roads set out that are not shown on the
before inclosure plan being ‘private road and occupation road’. The before-inclosure
plan clearly shows more than a footpath, and occupation road would not be subject
of a diversion order, so they would logically also be the status before inclosure. In
another case where there is a manorial map before inclosure, a track is shown and the
award says ‘private road and driftway’, with this being a logical location for a driftway:
leading to a common that is still today managed as a lamas common, hay being taken in
strips, and opened for grazing after hay making; i.e. it was a driftway before inclosure.
This practice of dual classification continues today, footpaths being diverted on to
pavements rather than deleted when housing estate roads are set out over them, there
being no procedure then, nor now, to delete public footpaths, bridleways and driftways
when setting out carriage roads over them.
The Dunlop case has been considered, and it is seen that the incorrect argument
was put before the court, with Sedley J finding that, in his opinion, there is no legal
difference between public and private road, a finding that is clearly wrong and fatally
flaws this judgment. By reference to the glossary of common highway names it can be
seen that once set out as a ‘private road’, it is a ‘common highway’, with an un-adopted
surface, that is privately maintained, subject to the Highway Act provision of the day,
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referenced in the 1801 General Inclosure Act as being the 1773 General Highway Act.
Being set out lawfully as a highway, it is open for all to use, however misleading the
wording, with s.232(2) Highways Act 1980, which says “to be a private street, and
thereupon the land is deemed to have been dedicated to the use of the public as a
highway and to be a private street”, that applies today, applying then also. If we can
understand the 1980 Highways Act we can understand the inclosure legislation.
Consideration has been given to the fact that many awards define whose use the
private roads are for, with this being considered to be the prime cause of current missunderstanding of them. It has been found that there are examples of:
•
Defined user private roads to be made and kept in repair by those who make and
keep the public (adopted surface) roads in repair.
•
Defined user private roads with public bridleway and public footpaths branching
off from them.
•
Defined user private roads set out over existing driftways, bridleways, footpaths.
•
Defined user private roads for the whole of an area (I recall reading for the whole
of a village).
•
Defined user private roads in court cases for maintenance issues, with public use
not being questioned.
•
Defined user private roads with local names.
•
Defined user private roads on parish owned land (I hold a copy of a legal opinion
confirming that there is a very strong argument that parish is owner).
In all cases there is no defined landowner, being one of the main criteria for private
right road, and it becomes perfectly obvious that their was no intention that these
were private right roads, since that would have stolen the highway network, and be of
doubtful legality, there being no power to create exclusive-use highways. The tale is
that they stole the common from the goose, not that they stole the highways from the
people. The explanation for defined users is that those users have in addition to the
Highway Act provisions enjoyed by everybody the provisions of the local inclosure act,
giving them powers, be it setting the standard or enforcing the making and repair, or
protection for those carrying out the work from enforcement by others. The evidence
is King v Richards & five others, (1800), where a case that had been brought failed
since it neither conformed to the Highway Act provisions, nor the local inclosure act
provisions, with it containing the evidence that from the time of making, all persons
willing to pass and repass, have at their free will and pleasure passed and repassed.
Note the word ‘willing’, as once one left the publicly maintained King’s Highway,
one took a risk concerning the condition of the private road, and were unable to take
any action if out of repair. Being an additional benefit to Highway Act provisions,
relating solely to maintenance-enabling action to be taken under the local inclosure act
provisions, the wording that is so misleading to us today, and especially to rights of way
volunteers, can be explained, but it must be appreciated that it does not, and can not,
restrict use to those persons only. When considering why it was done this way, I can
only conclude that legislation that could not be enforced would be a nonsense, and to
create legislation that could be enforced by anybody, e.g., that would enable Sustrans to
enforce private funded maintenance to cycleway standard would be unacceptable, and
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that this was the only way that reasonable standards and enforcement could be drafted
in this legal document. It should also be noted that some variation in the wording may
come about due to the lack of any guidance notes, guidance notes being located for
Tithe Act, Finance Act, Ordnance Survey maps, definitive maps, but not for inclosure
awards.
Thus the inclosure award process is explained, understood, and makes sense, being
what one might have anticipated, and being ‘legal events’, the highways shown on
them coming into existence once set out, and being subject to the provision of s.130 of
the Highways Act 1980, the task is to transfer information from one legal document
to another, in an economic, effective and efficient manner. This causes a question
concerning the need for a statutory list of highways for which the highway authority is
the authority, but which are not repairable at public expense. The highway authority
for the area is the authority, whether or not liable to repair, according to s.1(2) of
the Highways Act 1980. It is the lack of this document that would appear to have
caused many of these highways to have become lost in the first place, and to now need
discovering. Due to the 1949 legislation, the footpaths and bridleways ought also be
listed on the Highways Act s.36(6) list of maintained streets, but I believe the private
roads with their defined persons liable to repair ought not, and need their own list.
Much of what I have said above is of course researched to volunteer standard, suffering
limitations of what may be copied in record offices, while some was found by a
volunteer researcher personally known to myself who is unfortunately now deceased,
and some based on extracts by others reading court case notes. However, once one
understands what is being looked for it may undoubtedly be found, and what is most
important is that the inclosure awards make sense, say what may be expected, you
will find your own examples and conclude that what I have written is the correct legal
explanation.
Reconsidering Dunlop
In the first part of this paper on ‘private roads’, I have looked at the meaning of s.10
of 1801 General Inclosure Act, and set out the supporting evidence that one finds in
historical documents. Looking at Dunlop in more detail, I can say:
The question put before Sedley J was: what were the public rights over an 1820
inclosure awarded highway defined as “One other public Bridle and Drift road and
footpath and private Carriage Road”? It was argued that it should be recorded as a
BOAT and not as a bridleway.
The arguments put before the judge, were that:
i)
Private denotes local or low, an absence of official status, as used in private
soldier, private citizen, private member (of Parliament), but Judge Sedley
rejected that argument.
ii)
Private qualifies the word carriage rather than road, but Judge Sedley
rejected that argument too.
iii)
That these reasoning’s imposed significant (and often deeply unpopular)
repair obligations.
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However Sedley J observed, “The law, as I understand it, required the parish or
the local inhabitants to repair all public roads, high or low, local or turnpike; so that the
best that a ‘local’ road could achieve was reduced wear and tear and less frequent repair
to, quite possibly, a lower standard. All of this, however, will have been a question of
practical usage if ‘private’ meant public. The mere designation would not have made
it possible to exclude anybody who wanted to use it with or without a vehicle. For this
reason I do not consider this point persuasive of the legal significance of ‘private’. The
word would have created a nominal distinction without a legal difference.”
But, as I have set out in my earlier papers, before 1835 the law did not require the
parish to repair all roads, just those leading to market towns. They may well have
repaired them all, but that could not be enforced under Highway Act legislation. Also
there is a clear legal difference between ‘public’ repair and ‘private’ repair. If one cannot
understand that, one cannot understand the Highway Act 1980, nor understand the
philosophy of Mrs Thatcher’s government. Hence, even though I am without any legal
qualifications, with just an understanding of English language I conclude that the
Dunlop decision is questionable at the least, with the word private having the same
meaning as 1980 Highway Act, in that it defines private maintained carriage road, that
was set out over an existing footpath and bridleway and drift road. After all why should
we even think that words change their meaning?
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