Right of Way
the right which the public has to the free passage over roads or tracks. The expression is more generally applied to those public routes which are not statutory roads, such as hill or field paths, drove roads, bridle and other paths, and cart or driving roads in the common use of the public, which are not kept up by the county authorities. In many instances these roads are the only means of communication between important districts; and generally they are the shorter, and often the more picturesque, ways from one point to another. Right of way also exists along the seashore and on the banks of tidal rivers. The law of rights of way is judicial and not statutory. In Scotland, where of late the chief causes célèbres have originated, 40 years' continuous use by the public of such roads or paths is the prescriptive period for_constituting a right of way; while in England the public acquire a right of way under dedication to them by the owner of the soil, and user signifying their acceptance of the same, or when dedication can fairly be assumed from notorious user, which needs generally to be proved for a lengthened period, but which may yet, according to circumstances, be presumed from a period of user of only a few years.
In Scotland there is no public authority for the protection of the interests of the public in rights of way, or for their maintenance. They are in the position of being left to chance; and "what is everybody's business is nobody's business" has resulted in many valuable rights being lost. The public, or individual members of the public, have to incur the costs and risks of litigation in the courts under an action of declarator to recover a road which a proprietor has closed, and it is difficult for them to do this. In England, though there is also no direct public authority for the guardianship of rights of way, yet their maintenance is so far provided for under section 10 of the Local Government (England) Act, 1888, which enacts that county councils "may, if they think fit, contribute toward the costs of the maintenance, repair, enlargement, and improvement of any highway or public footpath in the county, though the same is not a main road."
Both in Scotland and England influential societies exist for the purpose of assisting in the protection of public rights of way-viz., the Scottish Rights of Way and Recreation Society, Edinburgh, founded in 1844 and reconstituted in 1884, and the National Footpath Preservation Society, London, founded in 1884. There are also several societies for special districts. See ROADS. RIGHTS OF MAN