[OSM-newbies] Fence in middle of street

[Mike Harris]

See below

Mike Harris
 

> -----Original Message-----
> From: Matt Freake [mailto:matthew.freake at ipreo.com] 
> Sent: 04 February 2010 11:39
> To: newbies at openstreetmap.org
> Subject: Re: [OSM-newbies] Fence in middle of street
> 
> 
> > > 
> > > I found it rather interesting to note that in the UK, property 
> > > owners have to assert the right of ownership on their lands, 
> > > otherwise the public can wander about it at will. I guess 
> that's the 
> > > difference between a country with a couple hundred years 
> of history 
> > > versus thousands of years of history. We came in and 
> pretended that 
> > > there was no history in North America, and we could divvy 
> it up from 
> > > a clean slate.
> > 
> > I don't know where the view came from that in England 
> property owners 
> > have to assert the right of ownership ... Otherwise the public can 
> > wander about it at will". IMHO this is in general not true. 
> A member 
> > of the public acting in that way would be a trespasser and 
> committing 
> > a tort in law that would be subject to civil action. The only 
> > exception is the recent creation of "access land"; the public does 
> > have the "right to roam" on designated "access land" (as 
> created and 
> > designated under the CROW Act). This is why in England (and 
> Wales) the 
> > concept of "public rights of way" is so important (and has to be 
> > defended so vigorously). On these designated ways (as per the 
> > corresponding "definitive map" and "definitive statement") 
> the public 
> > has the right to travel "the Queen's Highway" - either on 
> foot or on a 
> > horse according to their status (bicycles are also now 
> allowed where 
> > horses are allowed unless otherwise specified). In Scotland 
> - and in 
> > many Continental European countries the situation is the 
> reverse and 
> > more as described by whomever made the earlier post: i.e. 
> the public 
> > has the right to roam everywhere (with certain common-sense 
> exceptions 
> > - e.g. usually not in someone's garden or on cultivated 
> land) unless 
> > otherwise specified - hence the expressions: allemansrätt (Sweden), 
> > Wegefreiheit (Austria - can't remember the correct 
> translation for Germany), jokamiehenoikeus (Finland), etc.
> 
> Bearing in mind that I am not a lawyer, isn't there a concept 
> that if a a route through a bit of land has been used by the 
> public for a number of years, without the obstruction by the 
> owner, it becomes a right of way? Randomly searching the 
> internet, this link
> (http://www.rightofwaylaws.co.uk/how_can_I_stop_people_using_m
> y_land_as_if_it_is_a_right_of_way.html)
> says that it is 20 years and is s.31 of the Highways Act 
> 1980. Growing up I recall a local church had a car park that 
> could be used as a cut-through. In order to prevent it 
> becoming a right-of-way they had various notices up saying it 
> wasn't and locked the gates to it once a year.
> 
> Like I say, I'm not a lawyer, so I don't know if this is 
> true, but I imagine this is where that view comes from
> 

Matt - I think you are half right. There is indeed such a concept but it is
a bit more limited than you might be suggesting. Like all rights of way
issues it is complicated because it is based in part on very ancient law and
practice. The relevant legislation is the Highways Act 1980 §§31-33. The
principle is that where a "way - has actually been enjoyed by the public as
of right and without interruption for a full period of 20 years, the way is
deemed to have been dedicated as a highway unless there is sufficient
evidence that there was no intention during that period to dedicate it".
Like all legal things there are 'ifs and buts' and each word has problems of
interpretation! From your own church car park example you can see the
importance of "without interruption" and it is also quite common to see a
notice that says that people can use a way but there is no intention to
dedicate (so it does not become a public right of way). Another crucial
gloss is that the use of the way 'as of right' means that the use must be
"nec vi, nec clam, nec precario" i.e. without force, without secrecy and
without permission". In practcie this means that the usage doesn't count for
the purposes of presumed dedication after 20 years of use if the use takes
place in the face of a challenge (including a 'private' notice for example)
or secretly in the middle of the night or - and this is the one that most
often catches people out - with the permission of the landowner. One effect
of the last condition is that a "permissive path" can never be turned into a
right of way by this method (although there are of course other methods).


> 
> Matt
> 
> 
> 
> 
>