Private Carriage Roads: Errors in Dunlop

Private Carriage Roads: Errors in Dunlop

The judgment in Dunlop v Secretary of State for the Environment and Cambridgeshire County Council [1995] 94 LGR 427 is widely considered to be flawed because it was made on incomplete evidence.   Here Joanna Roseff looks at the evidence that was before the court and the missing evidence in her response to Somerset County Council’s (SCC) investigation of applications for modification orders for restricted byways which were awarded as private carriage road.  The arguments are applicable far more widely and comments are welcome on evidence which supports or opposes the argument made.

The problem with Dunlop…

Heard in 1995, Dunlop holds that, in the absence of evidence to the contrary, the rights over inclosure awarded private carriage roads are limited to a specific group of people, i.e. not the public at large.  It therefore follows that private carriage roads cannot be added to the Definitive Map on the evidence of the award alone.

But, there are many errors in Dunlop….

In coming to his conclusion, Sedley J examined several legal texts and confirmed to his satisfaction that there existed in English common law a kind of semi-public way open only to a certain local user.

The response to SCC’s investigation report (on the application for restricted byway in Coombe St Nicholas and Broadway) shows that in common law there are two kinds of road or way, one for travellers and one for local people, both of which were fully open to the whole of the public.

It also suggests that private carriage roads corresponded to the public roads for local users.

And it concludes that the effect on Tithe map evidence is that the ways coloured brown can only be public ways, unchangeable in their situation except by due legal process of diversion or extinguishment.

Please read the documents carefully and critically and make comments.

Comments of agreement, particularly where backed up by evidence, are welcome but we would also value any evidence that shows that:

  • the communis strata were not local public ways for all users
  • the default status for private carriage roads was not a minor public cartway
  • the conclusion that all roads coloured brown or otherwise excluded from tithe must be public rights of way is wrong

Documents

  1. Dunlop background
  2. Response to Somerset investigation on application for Charmoor Drove
  3. Notes on Charmoor Drove
  4. Dunlop transcript (parts)

Documents referred to in Consultation response

  1. 1628 Coke Section 68 Tenant at Will – Google Books
  2. Coke 2nd part of The Institutes Vol I on statute of Marlborough c 15 – Google Books
  3. Austin 1 Vent 189 – English Reports
  4. Thrower 1 Vent 208 – English Reports
  5. Thrower 3 Keb 28 – English Reports
  6. R v Saintiff 6 Mod Cas 259 case 369 – English Reports
  7. R v Hammond, 1717, 1 Strang 44 – English Reports
  8. R v Hammond, 1717, 10 Mod 382 – English Reports
  9. The Queen v Inhabitants of Clueworth 1705 – English Reports
  10. Reg v Inhabitants of High Halden 1860 – English Reports
  11. Satku Valad Kadir Sausare vs Ibrahim Aga Valad Mirza Aga on 12/12/1877 (Bombay High Court)
  12. Extracts from Hawkins Pleas of the Crown 1716 edition – Google Books
  13. Extracts from Hawkins Pleas of the Crown 1787 edition – Google Books
  14. 33 H 6 10, 1455, Seipp No 1455.062 – Boston University Law Yearbooks
  15. Tithe map approved symbols – The National Archives

Google Books https://books.google.co.uk/
Commonwealth Legal Information Institute, English Reports
www.commonlii.org/uk/cases/EngR


Readers may also be interested, for background, in this paper on social history by Catriona Cook.  One of the greatest failings of any historian is a failure to consider any artefact in the context of its time.

14 thoughts on “Private Carriage Roads: Errors in Dunlop

  1. In the Response to SCC investigation into Charmoor Drove, under the heading ‘Mistakes in Dunlop’ points 14 – 16, for Tomlins, please read Hawkins.

  2. It has been objected to me by private email that Dunlop is legal precedent and must be followed until overturned by a court of law:
    “The issue, of course, as it always has been, is that it will take another court case to overturn Dunlop (eg just like Andrews). Until then local authorities and the Planning Inspectorate (and the rest of us) are bound by Dunlop even if it is wrong.”
    But a case cannot be precedent if it itself has not followed precedent or an established rule of law.
    So can it be shown that the decision in Dunlop did not follow precedent or an established rule of law?
    The point at issue was whether the Inspector was correct in describing a private carriage road as a minor public road.
    This meant that it had to be demonstrated:
    1. That a private carriage road was a public vehicular right of way
    2. There was some legal difference between a private carriage road and a public carriage road
    In establishing (1) Sedley was presented with evidence, Coke (Co Lit 56a), that there were two kinds of way in common law, via regia and communis strata.
    He concluded that via regia corresponded to an inclosure award public carriage road and he also concluded that the private carriage road in question had existed prior to the award and the way was of a character that corresponded to communis strata.
    Sedley said:
    “The nearest one can come to the class of private user is the likelihood that the road went from Denton to the mill, in which case it will have been communis via only in the earlier parlance and a private way in later parlance.”
    In attempting to discover whether communis strata were public ways he was misdirected that:
    1. according to Saintiff, 1704, a way described as ‘common’ was restricted as to user
    2. it followed that Hammond, 1717, could not mean that via regia and communis strata meant the same because via regia was open to all the king’s subjects but ‘common’ meant restricted as to user.
    This was wrong because in Saintiff, following Thrower, 1684 [actually 1672], ‘common’ was found to mean ‘public’ (the indictment was found good) and hence the assertion in Hawkins, written in 1716 or before, that:
    “there seems to be no reason why any way leading from village to village, which does not terminate there, but is also a thoroughfare to other towns, may not properly be called a common or highway”
    Further evidence for the public nature of communis strata is found in Coke, 2nd part of The Institutes, Chapter XV on the Statute of Marlborough:
    “all the King’s subjects ought to have free passage in via regia, et communi strata, as well to fairs and markets, as about their other affairs”
    Sedley did not know this.
    So he also did not know that prior to inclosure, as communis strata, a public right of way for vehicles existed over the road that became Mill Road and Denton Road in the Glatton with Holme award, and that public right of way was the only way that the public and the occupiers of land in the vicinity could claim.
    And Sedley also did not know that if inclosure had happened by agreement instead of parliamentary inclosure, the act of inclosing the road could have happened either with the authorisation of a writ ad quod damnum, or unauthorised, in which latter case the person inclosing would have become liable to repair the road ratione tenurae.
    But whether it had happened with authority or without, that public right would have continued regardless. It is a rule of law that the public cannot lose their rights without due legal process and in the absence of a stopping up order, or any indication that the Commissioners applied for a stopping up order, that public right continued after parliamentary inclosure as well.
    In respect of (2), that there was some legal difference between the two classes of road, Sedley decided that there was not because his understanding was that:
    “the parish or the local inhabitants [had] to repair all public roads, high or low, local or turnpike.”
    Sedley did not know the rule of law stated in s 9 IA, 1801, which directed that the public carriage roads were to be repaired out of the statute duty and, after a justices certificate had been issued:
    “forever thereafter, the same shall be supported and kept in Repair by such Persons, and in like Manner as the other publick Roads within such Parish, Township, or Place, are by Law to be amended and kept in Repair.”
    Whereas the private roads, by s 10 IA 1801, were to be repaired:
    “by and at the expence 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.”
    So there was a legal difference between the two of which Sedley was unaware.
    As said above, it has been asserted that Dunlop is precedent, presumably for the rule that in the absence of evidence to the contrary, private carriage roads are presumed to be restricted as to user.
    In Dunlop, Sedley did not follow the established rule of law described by Coke in the 2 Part of the Institutes that communis strata were for ‘all the king’s subjects.
    He was misdirected as to the effect of Hammond in confirming the established rule of law that communis strata were the same as via regia as far as the right to pass went i.e. both could be the subject of a public nuisance remedied by indictment. That remedy was not available for a road restricted as to user.
    And he did not know that ss 9 and 10 IA 1801 prescribed different modes of repair for the public and private carriage roads, which he considered to be an essential difference between a minor and a major public road.
    Sedley also did not know that Mill Road and Denton Road were public roads before the award and that right could only be extinguished by due legal process, of which there was no evidence.
    So in reaching the conclusion that the default right over private carriage roads is restricted in some way to a particular local user, Sedley did not take account of several established rules of law:
    i. that the rights over via regia are the same as the rights over communis strata
    ii. that pre-existing rights can only be extinguished by parliamentary inclosure if the Commissioners follow due legal process
    iii. that there was a difference in the way the public and private carriage roads were to be repaired as specified in ss 9 & 10 IA 1801
    It follows that Dunlop is not precedent as to the rights over private carriage roads and may be disregarded by any judicial process.

  3. Many if not most enclosure acts contain a provision that all public roads over the land to be enclosued and not awarded by the act will be, by the act, stopped up. Am I right in inferring that no such provision existed in the Dunlop case?

    It seems to me that there is something of a wild goose chase in attempting to define a legal meaning for the term “private road” which is both general and unvarying. Awards often include additional wording to define who may use and not use, the road in question, and who is liable to maintain it. This result is a variety of differing combinations of details between and within awards, which can push a view of the meaning one way or the other in each case. Dunlop can only be treated as a binding precedent where the combination of detailed provisions is the same. Otherwise, while it may be treated as a useful precedent, it cannot be a binding one. A court might wish to follow Dunlop after taking everything into account, but it cannot be under any binding constraint to do so except where the circumstances are identical.

    I have put on record examples of 19th century public administrators using the term “private road” unequivocally to mean a public road (for example, in the the minute books of the Quarter Sessions). With that evidence it is impossible to maintain an argument that the words “private road” can never indicate a public road, even within the higher levels of the legal administration of highways, since we can put forward the very fact of them doing so. But equally, the converse cannot be held to be a rule either. Whether any road so termed in an award is public or private has to be deduced from the rest of the wording of the award together with any other evidence. In some cases this can be impossible without the use of legal imagination, because of seeming inconsistencies or contradictions. At one extreme, some awards are absolutely explicit that the road in question is a private easement, at the opposite extreme, some are worded in such a way as to make no sense unless public rights were intended. It is that large number where the term is ambiguous that are at issue, but the proper way to deal with these is not to seek the chimera of a general rule, but to acknowledge that they must be dealt with case by case, and ambiguities resolved by the use of reasonable “legal imagination”.

    The judge in Andrews 2 had some extremely apposite things to say about the relative slopiness in the wording of statutes at the time, compared with modern standards, and that it is wrong to try and interpret them assuming the same care to use terms consistently and precisely as the legislator seeks to achieve today. The court took the view that one has to look behind and ask what was likely to be intended, what was reasonable to intend, and what was workable to intend. If the court of appeal thinks this view has to be taken of 200 year old acts of parliament then it must be taken of awards made under them as well.

  4. Thank you for responding.

    Re the general provision that roads and ways not awarded were stopped up, Dunlop was under IA 1801 as varied by the local act, which did vary the provisions re roads and ways – see The Seymour Papers elsewhere on this site – but the reasoning in Dunlop was conveniently based only on the more widely applicable IA 1801.

    S XI IA 1801 says:
    “all Roads, Ways, and Paths, over, through, and upon such Lands and Grounds which shall not be set out as aforesaid, shall be forever stopped up and extinguished, and shall be deemed and taken as Part of the Lands and Grounds to be divided, allotted, and inclosed, and shall be divided, allotted, and inclosed accordingly”

    So the provision applies to the land that was “divided, allotted, and inclosed” and so it does not include the land set out with pegs in the ground, at the beginning of the inclosure process, intended to be the roads and ways that remained.

    S VIII says the Commissioners were required:
    “before he or they proceed to make any of the Divisions and Allotments … , to set out and appoint the publick Carriage Roads and Highways”

    S X says in respect of the private roads:
    “[the Commissioners] are hereby empowered and required to set out and appoint such private Roads, Bridleways, Footways, … , 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 or Paths, as are above required in the Case of publick Roads”

    So the provision only applies to unrecorded rights within the new inclosures: rights over the land crossed by the awarded public and private roads, which are normally separated from the allotments by boundaries, continued unchanged.

    Where inclosure was by other means, such as local agreement, the parties inclosing were supposed to apply for a writ ad quod damnum. The standard form of this under 8 & 9 W III, c 16, 1697, was from the King to the Sheriff, asking him to enquire what damage might result if someone was allowed to:

    “enclose a certain common way for horsemen or foot passengers [or if a highway ‘a certain King’s way in … and to other towns and places in your county aforesaid … for all our lieges freely and at their liberty to go, pass and repass with all their draught beasts, carts, waggons and carriage’]”.

    Under this process, the rights of the public remained unchanged. Note the distinction between a common way and a highway, a common way being a bridleway or footpath and a highway being a cartway. For examples see Durham Record Office website.

    Also, if someone inclosed without authority, they became liable to maintain the way ratione clausurae [I know you know this but others might not]. Again, the rights of the public remained unchanged, so why should the situation be any different under parliamentary inclosure?

    S VIII also said:
    “Provided always, that in Case such Commissioner or Commissioners shall by such Bill be empowered to stop up any old or accustomed Road, passing or leading through any Part of the Old Inclosures in such Parish, Township, or Place, the same shall in no Case be done without the Concurrence and Order of two Justices of the Peace”.

    Specifically, any pre-existing way across the lands to be inclosed that continued through the old inclosures could not be stopped up without an order of the Justices and authority in the Local Act. S XI does not operate here simply by virtue of the way not being set out (Logan v Burton 1826; Thackrah v Seymour 1832, Harber v Rand, 1821).

    The case report in Dunlop (see attached papers ‘Dunlop background’ or ‘Dunlop transcript’) described that the way was shown on Hausted’s map of 1613 and Jeffry’s map of 1766 joining the two communities of Denton and Glatton, so it did continue through the old inclosures.

    If a way continues through old inclosures in the neighbouring parish (Gwyn v Hardwicke, 1856) where the Commissioners have no power to act, they could still obtain a stopping up order for so much of the way as was in their jurisdiction, any party aggrieved in the neighbouring parish having the opportunity to appeal to Quarter Sessions.

    The terms of the local act are critical and may mean that changes other than stopping up are subject to the consent of the justices. In the inclosure of Cricklade St Sampson the local act required that any existing way that passed through the old inclosures could not be “stopped up, diverted, turned, or in any other way altered” without the consent of the justices. This restriction applied even though the ancient public bridleway in question had the same termini at either end of the land to be inclosed as it did before (The Queen v The Inhabitants of Cricklade St Sampson 1850).

    The s XI provision was likely to be intended to apply only to ways such as private roads over the waste with no communication with the public roads and public tracks connecting the greater highways (obiter in R v Marquis of Downshire 1836). By ‘public tracks connecting the greater highways’ the judge was referring to that fact that for an uninclosed common, particularly where it was not used as arable land, the lord of the soil had no interest in preventing the establishment of any ways that the public or persons going to certain old inclosures found convenient as shortcuts.

    One of the purposes of the Commissioners setting out the proposed new roads was so that the public could see on the ground exactly which roads and ways were to continue after inclosure.

    So the short answer is that the s XI provision did not apply in Dunlop to the way in quo because it continued through the old inclosures (subject to any variation in the local act).

    For awards under IA 1801, the provision has to be read with the provision at the end of s VIII that no way through the old inclosures could be stopped up without a justices order, so normally it could only be used to stop up ways wholly contained within the lands to be inclosed i.e. duplicated ways.

  5. Response to Chris Padley second and third paragraphs:

    The underlying legal meaning for the term ‘private road’ may well not be concerned with who has rights to use it.

    In the Digest, see attached paper Notes on Charmoor Drove from point 41, the distinction between public and private roads was based on the original contributor of the soil. This did not vary even when the road was used by the public: strictly, a private road was one where the soil belonged to a private person.

    In the Coke quotation, ways were divided into via regia and communis strata, where the via regia belonged to the king and the communis strata belonged to e.g. a city or a town inter alia.

    In England, originally the four great roads left behind by the Romans were the only true public roads where the soil was vested in the state. All other ‘public highways’ now in existence have a variety of origins (some are constructed on land bought by the state) but the one thing that they all have in common is that the king, or state, has the right to improve the surface by adding stone to it.

    Ways shown on the Definitive Map are not ‘public highways’ because they may only be repaired to the standard in R v High Halden, 1860, at most, although as always, there may be a legal reason for exceptions. At the time of the Glatton with Holme Award, the standard for roads not maintained out of the statute duty but according to the common law rules only, was that defined in Reg v Clueworth, 1705. Both cases can be found in English Reports – link supplied on this page.

    If a ‘private road’ is called that because it does not belong to the state, the description will naturally include ways that are mere easements, where a person has the right to pass over private land in the possession of another.

    That is why there is the variation identified, as you rightly say:
    “At one extreme, some awards are absolutely explicit that the road in question is a private easement, at the opposite extreme, some are worded in such a way as to make no sense unless public rights were intended”.

    But there is uniformity in the enabling legislation so at some level there has to be uniformity in the awards.

    The common law recognises three kinds of way:
    1. Highway belonging to the king
    2. Common way or communis strata belonging to a private person including a corporation or body politic
    3. Private way or easement in respect of certain land

    The first two are public (there is no question that the rights over communis strata are for the public) and for the third, there has to be an owner of the fee simple unless there is a deed or grant from higher authority.

    The detail in inclosure awards is simply insufficient to support a claim of a deed or grant except for the ways where a dominant and servient tenement are specified.

    The rights over public carriage roads and public bridleways or footpaths are implied by their description as such, with an appointment clause often being considered unnecessary by the inclosure commissioners.

    Similarly, appointment clauses specifying the permitted user are often absent for private carriage roads that, in the words of s IX IA 1801 or similar, were to be:
    “kept in Repair by such Persons, and in like Manner as the other publick Roads within such Parish, Township, or Place, are by Law to be amended and kept in Repair”.

    So the problem has become, does designation as a private carriage road, in the absence of direct evidence to the contrary i.e. an associated dominant tenement, imply a minor way with rights to pass for the public that correspond to the rights of the public over the communis strata through the old inclosures with which they connect?

    In other words, do the private roads have to be of either type 2 or type 3 above: if they are not clearly easements, can they be taken to be a minor public road – which was the original point at issue in Dunlop?

    In Dunlop Sedley J said (see Dunlop Background point 3.10):
    “The nearest one can come to the class of private user is the likelihood that the road went from Denton to the mill, in which case it will have been communis via only in the earlier parlance”.

    If that conclusion is correct, that the pre-existing road was communis strata, then surely it can be said, at least for the private carriage roads that are not cul de sacs and which necessarily in some way connect at both ends with the communis strata through the old inclosures, that they must be minor public ways.

  6. Response to Chris Padley fourth paragraph:

    I would like to add a caveat to the quote from Andrews 2 that there was “relative sloppiness in the wording of statutes at the time, compared with modern standards”.

    I am only familiar with highways and inclosure statutes and there are obvious examples, such as HA 1555 and 1562 and the use of ‘surveyor’ and ‘supervisor’, but even when it seems obvious that the words are wrong, there can be an underlying reason.

    For example, if the difference between via regia and communis strata is the rights, perhaps ‘ownership’ is too strong, over the underlying soil, this cannot change without due legal process.

    Bracton talks of public tenements, which included public squares or streets, as things that belonged to a city or borough town, and these were available to the public without restriction.

    This is probably the same principle on which the rights over communis strata are based even when they belonged to a body politic such as a vill.

    The royal roads that belonged to the king were those that led from city or borough town or royal port to places of similar status (Leges Henrici Primi 80 #3) or were military roads (Leges Henrici Primi 10 #2).

    The Statute of Winchester brought highways ‘leading from one market town to another’ under the king’s protection, implemented by the lord, but all other ways would be, strictly in law, communis strata because they did not belong to the king, even though changes to them could only be authorised by the king.

    The wording of the early highways acts of Henry VIII reflects this, and where the modern reader might expect the word ‘highway’, the term ‘common way’ is used instead, e.g.:

    14 & 15 H VIII c 6, 1523, authorised George Guldeford to make a particular new way in the manor of Hemelhempstead and then inclose the old way. The road was described as “an old common way or street for carriages and all other passages and business” that led from Hempstead Bridge to Totenden Cross by Hampstead Oak for 190 perches, which is 1045 yards or a little over ½ mile, and was probably part of what is now the A28 from Rolvenden to Tenterden.

    Later, in HA 1555, highways leading to a market town were made repairable out of the statute duty.

    Many centuries later Burn’s commented in his law dictionary, The Justice of the Peace and the Parish Officer, under the heading Highways, on the proposition that for a way to be a highway it should lead to a market town:
    “For there were highways before there were market towns. And if it were essential to the constituting of a highway that it should expressly lead from market town to market town, then it would follow that the lord of a market, by forfeiting or surrendering his charter, might cause that to cease to be a highway which was a highway before; or the king, by granting a market in any place where there was no market before, might thereby consequentially change the way to it from a private way into a highway.”

    Context is key to interpreting old statutes and unless we understand the other contemporaneous law, we may draw the wrong conclusion.

  7. It seems to me that the 1801 Act allows commissioners to set out private roads in the sense of roads maintained not by the parish but be such of the proprietors as the commissioners specify. The commissioners have powers to specify who may use the roads. They may perhaps have the power to allow all the public to use the roads for all purposes but even if this is not so the range of users or types of usage might be so wide as to make the road effectively a privately-maintained public highway. But where, as so often is the case, the award is silent as to who is to use the road then I think what was intended was that all the public should be able to use the road, but only to access premises along the road. This would not then amount to a public highway. There are plenty of roads like that today and I can see no reason why there should not have been any in centuries past.

    If there had been public rights along the road before the inclosure then one would have expected the commissioners to have retained them. I also agree that the 1801 Act does not extinguish existing public rights where a private road is set out along the same alignment. But the proposition that the Dunlop judgement was flawed depends on there being public rights there before and it is not clear that there is any evidence of this.

  8. Response to John Sugden commissioners’ authority.

    Thank you for your input.

    On the subject of the Commissioners’ authority: the first thing to remember is that inclosure is to do with rights over land, many of which have existed since before 1066.

    The manorial system of agriculture is thought to have grown out of the Roman villa system, although not as a direct descendant; the Roman villas virtually disappeared and were replaced by other settlements which had their own legal systems. Hoskins writes of these settlements in his book The Making of the English Landscape, see Chapter 1 The Landscape, and in particular Chapter 2, The English Settlement.

    The detail is not so important as to understand that the common law is very much the law of the manor and of other systems of land use that existed in mediaeval times – it is the law that was common to them and was very influenced by Roman law. Bracton recorded it and followed Azo’s Summa very closely although he recorded English law. But as the Romans had aspirations that their law should be used throughout Christendom, it is not surprising that it was so influential.

    Parliamentary inclosure was not the only method of inclosure – see Common Land and Inclosure by Gonner. Prior to Parliamentary inclosure, the main methods were under the Statute of Merton, 1235, or by agreement.

    The common law rule was that no-one should interfere with the king’s highway unless authorised by a writ ad quod damnum. The statute of Merton, 1235, did not give authority to interfere with public ways and in respect of private ways to pasture it said that the occupiers of the tenements should have:
    “free egress and regress from their tenements into the pasture”.
    If anyone inclosing by agreement inclosed a common way or a highway, unless they had authority under a writ ad quod damnum they would become liable to repair ratione clausurae (Duncomb’s Case, 1635).

    Parliamentary inclosure did not vary this; the authority given to commissioners was not to decide who could use the awarded ways but to ensure that prior third party rights, including those of the local or travelling public to pass, were not compromised.

    So reading the legislation in terms like, “The commissioners have powers to specify who may use the roads” and “may perhaps have the power to allow all the public to use the roads for all purposes” is missing the point.

    It was far more a case of deciding which duplicated and parallel pre-existing rights of way were unnecessary. Because the land was unenclosed, there was nothing to stop the establishment of any convenient ways except that there were obviously restrictions about walking, riding or driving over the cultivated strips, i.e. the right to go over the corn only existed if the road was impassable. See Hawkins Pleas of the Crown, Chapter 76:
    “Sect 2. It hath been holden, that if there be a highway in an open field, and the people have used, time out of mind, when the ways are bad, to go by the outlets on the land adjoining, such outlets are parcel of the way, for the king’s subjects ought to have a good passage, and the good passage is the way, and not only the beaten track; from whence it follows, that if such outlets be sown with corn, and the beaten track be founderous, the king’s subjects may justify going upon the corn.”

    Inclosure was not early town and country planning law but concerned with exchanging rights to use land where the soil was owned by another, i.e. the lord, with allotments in fee simple.

    England is a trading nation and freedom to travel is essential to this – still is, that’s why Europe zero rates transport for VAT. To go from a situation where Charles II commissioned Ogilby to draw up his maps, 1675, to facilitate travel, to one where the countryside was closed down just because common land was divided up into fields is nonsense. Ogilby said in his preface:
    “I have attempted to improve our commerce and correspondency at home, by registering and illustrating your Majesty’s High-Ways, directly and transversly, as from shore to shore, to the prescrib’d limits of the circumambient ocean, from this great emporium and prime center of the Kingdom, your royal metropolis.”
    https://www.fulltable.com/vts/m/map/ogilby/a/a.htm

    And Coke, in the second part of the Institutes on the Statute of Marlborough, 1267:
    “all the King’s subjects ought to have free passage in via regia, et communi strata, as well to fairs and markets, as about their other affairs”.

    The Commissioners were bound by the law when deciding which ways were to be public carriage roads and which were to be private carriage roads. It was not a matter of desirability or whim.

  9. Response to John Sugden on silent as to user

    When awards are “silent as to who is to use the road” I think that firstly a distinction needs to be drawn between those that are:
    1. Cul de sacs ending at a new allotment
    2. Cul de sacs ending at a gate into an old inclosure
    3. Through routes connecting with a cul de sac road through the old inclosures ending at a gate into an old inclosure
    4. Through routes that connect with the highway network at both ends, either directly or via a road through the old inclosures.

    The cul de sacs ending at a new allotment are obviously of most benefit to the allottees whose allotments are served by the way. The question of user is obviously anyone who has a reason to enter one of the allotments, but say someone is breaking in a horse, not an unusual occurrence in those days, would they be able to long rein the animal up the quiet cul de sac – or children playing, would they be able to go up there?

    Why shouldn’t they? They were able to use that land in that way before inclosure. But should such a way be shown on the Definitive Map? It does not have the characteristics of a highway because it doesn’t go anywhere but it does have potential recreational value and people still need somewhere quiet for a child’s first lesson on a leading rein or to train a young horse.

    That is a matter of policy that defra, as successors to the inclosure commissioners, should be able to decide.

    The same considerations apply to the cul de sacs leading to an old inclosure with the additional issue that a pre-existing right of way might lead through the old inclosure.

    The through routes are the important ones. They are the ones by which journeys that were possible pre-inclosure can still be made.

    For the awards under IA 1801, the “old or accustomed Road, passing or leading through any Part of the Old Inclosures in such Parish, Township, or Place” could not be stopped without an order from the Justices. So the rights over the private carriage roads that connect with them must be the same as over the “old and accustomed roads etc”.

    In other words, they must be public rights of way of the same status as the “old and accustomed roads etc”.

    Many of these old and accustomed roads etc” have survived as UCRs, either surfaced or unsurfaced.

    This agrees with Coke in Coke on Littleton where he says that if the common ways leading to land are obstructed, the remedy is an indictment for common (public) nuisance.

    If the private carriage road ends at a T-junction at both ends with a county maintained road, an argument might be made that the private carriage road is completely new but the T-junctions must be in the same two places as the old entrances to the common. It is very unlikely that there were two entrances to a common and no-one ever made a journey connecting them both up, however difficult the terrain in between.

    So I think that the topography and character of the private carriage roads should make clear who the authorized user is.

  10. Response to John Sugden on access to premises

    It is agreed there are plenty of roads that have been created specifically to serve the premises on either side. Normally the premises and road have been created out of a single plot, such as a new road of housing. So before the housing is sold or let, the owner of the road and the owner of the premises is the same person.

    If such a road is a cul de sac, until the case of Rugby Charity v Merryweather, 1790, that would have been sufficient evidence to maintain that the road was an accommodation road.

    If such a street is left open to the highway at both ends, opinion has been expressed that when the owner starts to sell or let the houses, that is an act of dedication.

    In Woodyer v Hadden 1813, Chambre J. said:
    “No particular time is necessary for evidence of a dedication: it is not, like a grant, presumed from length of time: if the act of dedication is unequivocal, it may take place immediately: for instance, if a man builds a double row of houses opening into an ancient street at each end, making a street, and sells or lets the houses, that is instantly a highway.”
    In such a circumstance, the owner must maintain a bar at each end to prevent presumed dedication.

    Rights over land have to be evidenced in writing or claimed under common law. Manorial ways are of great antiquity and if a way is obstructed, a remedy must be sought using the common law.
    If a common way is obstructed, the remedy is for the justices to make a presentment of their own knowledge or for an officer to bring an indictment for common nuisance. No-one may bring a private action unless they can show that they have suffered a special damage. For further detail see Coke on Littleton sect 68 and Satku Valad Kadir Sausare vs Ibrahim Aga Valad Mirza Aga.

    It may be argued that there are many ways in the countryside shown on the Definitive Map as FPs and BRs where the owners/occupiers on either side have private rights of cartway. But a right extends only so far as it can be enforced and in the absence of a deed or grant, those owners/occupiers must rely on the common law.

    There are three methods available to them, each of which demands that they should name the freeholder:
    1. By prescription or time immemorial
    2. By ‘lost modern grant’ if a claim of time immemorial might be defeated
    3. Under the Prescription Act 1832.

    Private ways in the nature of an easement must have a dominant tenement and a servient tenement and the freeholder of each must be known.

    As far back as 1455, in 33 H 6 10, it was said that the justices would presume a way to be a highway if the freeholder was not named:
    “Moyle JCP: …it does not appear by the writ who is the freeholder of the way (bovel) where the nuisance is supposed, because it might perhaps be the highway (haut chemyn), in which case no action of any kind lies, because it is a ‘popular action’ and he who has thus stopped the king’s highway should be presented at the leet and fined, but no common person can have an action against him, though it is lawful for anyone to break down the wall where the nuisance is, if it is a common nuisance;”
    So although it is agreed that in residential areas many roads do exist only to serve the premises on either side, the situation is different in the countryside. Bounded lanes through the old inclosures that connect with the highway network at each end are likely to be highways themselves, particularly if they are ungated.

    The rights over private carriage roads are the subject of this debate and there is a strong case to be made that where they are contiguous with ways through the old inclosures, they are minor public ways regardless of whether the award is silent as to the rights over them.

  11. Response to John Sugden on whether the Dunlop judgement was flawed.

    Colin Seymour has already written at length about the missing evidence of the local act in the Dunlop judgment – see The Seymour Papers on this site.

    The common land that was inclosed by the Glatton with Holme award was partway between two settlements. Prior to inclosure, a single road joined the two communities of Denton and Glatton, as was shown on Hausted’s map of 1613 and Jeffry’s map of 1766.

    There is no doubt that a public road of the “old and accustomed” variety existed in the vicinity before inclosure and by the terms of the local act, it continued to exist after the inclosure.

    The flaws in the judgment that are being examined here are conclusions made by Sedley J in respect of the two classes of way called via regia and communis strata. He went against the precedent of R v Hammond, 1717, in which it was correctly decided that the rights over both kinds of way were the same.

    And he was in ignorance of the rule of law expressed by Coke in the 2nd Part of The Institutes on the statute of Marlborough that:
    “all the King’s subjects ought to have free passage in via regia, et communi strata, as well to fairs and markets, as about their other affairs”.

    This rule was also expressed in pleading in Satku Valad Kadir Sausare vs Ibrahim Aga Valad Mirza Aga at point 7:
    “7. There cannot be any doubt that Her Majesty’s subjects at large, as well in India as in England, have the right to pass and repass along a public highway, whether it come under the denomination of regia via or communis strata so long as they do so peaceably and properly.”

    Sedley also concluded wrongly that there would be no difference in the way that a private carriage road was repaired compared to a public carriage road if a private carriage road was a minor public way. In making this statement he ignored the rules of repair of both kinds of road described in ss 8-10 IA 1801.

    He also did not know public carriage roads, being roads for travellers, were repaired by the statute duty using stone, the collection of which was first authorised by HA 1562.

    And he did not know that the common law standard of repair, applicable to a minor road, only required that a road should be made as good as it had ever been.

    So the Dunlop judgment was flawed because there were public rights there before inclosure that continued afterwards; and it was flawed because Sedley J’s conclusion in respect of the rights over communis strata, or common ways, or common streets, or common highways was wrong.

  12. Some information which may be helpful:
    I have an indictment from the Court of the Sheriff of West Sussex in 1564 which has been transcribed and describes a way for pedestrians and horsemen as both a “common way” and also “the Queen’s Highway”.

    This would appear to be at odds with the quoted 8 & 9 W III c. 16, 1697 quoted, where the King’s Highway was supposedly only used to describe a road for carts and carriages and a common way for footpaths and bridleways. Does this perhaps indicate a change in the law reflecting the increased prevalence of wheeled vehicles on the roads?

    I also have, nearby, in 1615 a road described in a Glebe Terrier in abutments as a “lane” which goes from the Church to the nearest market town (nearly 2 miles away, crossing 2 parishes and a common) and, in another abutment, the road immediately next to it is described as “the highwaye” (this road connected to the main road, which connected Chichester with Arundel and other towns along the coast). The one described as the highway is now an adopted public road, the one described as a “lane” was recorded upon the Definitive Map as a footpath, despite the OS maps from 1915-1960 showing it as a bridle road.

    Can I also refer you to the following information I have found reflecting the general meaning of public and private to the citizens of the time:

    Pages 255, 288, 291, 292 and 295 (either within the main text or in the footnotes) of The Development of Transportation in Modern England by W T Jackman (1916) https://archive.org/details/developmentoftra01jack/page/n5

    Page 295, for instance, quoting from John Burton’s 1752 ‘Journey Through Surrey and Sussex’ – (describing the main road from Arundel to London) “These did not seem to be public ways, but bye-roads…”.

    See also p. 67 ‘Treatise on Roads, their History, Character and Utility…’ by S. De Witt Bloodgood (1838): https://archive.org/details/treatiseonroadst00blooiala/page/n3

    “The roads of England and Wales are now computed to be upwards of 24,000 miles in length so far as they are turnpiked. And the extent of the common and private roads in the United Kingdom is estimated at 100,000 miles. The public roads are of the finest description, being constructed on scientific principles, and designed by eminent engineers”.

    1. Thanks for your information, Julie, a useful addition to the argument. Are you able to send us images of the extracts you mention?

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