Historical ‘Rights of Way’

Historical ‘Rights of Way’

The lovely countryside of Gloucestershire is best discovered on foot and by exploring its variety of historic byways. There are many green lanes, hollow ways and halter paths (bridle ways). Ancient footpaths can lead you into an interesting historical past. You could find yourself strolling through verdant meadows or crossing rushing streams before winding up in an isolated Cotswold stone hamlet. On the way you may pass the relics of a Neolithic stone barrow (burial mound), an ancient church or an imposing old tithe barn.

Wide areas of grass verge can indicate the presence of an early Drove road that once was used to drive herds of cattle, sheep, pigs or poultry to market towns. These unmetalled highways, sometimes called ‘driftways’, that provided rights for Cattle, now can be used freely by walkers and riders, although very rarely by motor cars.
Researching Highways and Byways.

The expression ‘Highway’ has legal connotations, and in fact it has deep legal strength. Where the public have had the right to pass along a linear route. This may encompass footpaths, bridleways and carriage ways. Once a public right of way or highway has come into existence, it is ‘legally always’ a highway. It would normally require a specific legal act to ‘stop it up’ or to prevent the public from using it. This clarifies the term ‘a public right of way’.

Analysis of these rights, for recording purposes, requires historical evidence and determination. To make any claims for registration will involve application of the Civil law test – the ‘balance of probabilities’ as against the Criminal law test – ‘beyond reasonable doubt’. Documental evidence must have clear provenance. This is essential to complete any survey. Beginning from the Highway Act 1555 and Turnpike Acts 1773-1820. It may involve ORPAs ‘other routes with Public Access’ and RUPPs, ‘Roads used as public paths.

In any form of investigation, there are many Acts to be considered. From the National Parks and Access to the Countryside Act, 1949 and the Countryside Act, 1968, followed by the Wildlife & Countryside Act, 1981 and the Countryside and Rights of Way Act, 2000. These Acts have been further affected by the National Environment & Rural Communities Act 2006 and the recent Deregulation Act 2015.

Highways are invariably affected by early Acts such as the Law of Property Act 1925 or by example the earlier ‘Inclosure’ Acts of 1836 and 1845. Any local history study should consider, the Tithe Records. These date back from the ninth century. Tithes were paid ‘in kind’ to support the Church and the parish priest. The tithe was ten per cent of the produce of the land. Some of the perishables were initially distributed to the poor and needy. NB tithes were not due on manufactured goods.

The Tithe Act, 1836, commuted all tithes. It was overseen by the Tithe Commissioners appointed under s.1 of the Act. Agreements and notices were specified, and any disputes about the right to tithes were referred to arbitration. The Tithe amendment Act 1837 allowed first- and second-class maps to be applied. Three sets of tithe records were compiled for the Tithe districts. Land not subject to tithes, would have either been barren or belonging to the Church or Crown estates. Public highways were also exempt. NB other roads were privately owned.
Turnpike Acts – between 1750 and 1770 were in operation until the 1773 General Turnpike Act. The roads continued to be improved up until 1815 when there were over 23,000 miles of these roads. The Highways and Locomotives (Amendment) Act, 1878 removed or disturnpiked all such roads after 31 December 1870. Road Orders came under the Highways and Locomotives Act 1878.

A final mention on research – ‘The Quarter Session Records’. These records, started in Tudor times and continued until they were replaced by the County Court, under the Courts Act 1971. (They are held in the County Records Offices).

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