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, forty 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. The following points fall under the legal aspect of a public right of way, according to the law of Scotland: (1) The path or road must go from one public place to another public place. By this is not meant that it must go from one town or village to another; it may be between any two points at which the public have a right to be, and to which they resort for some definite and intelligible purpose. Thus it may run from one highway to another; but it cannot run between a public road and a private house. (2) It must be along some tolerably well-defined route between the termini. (3) If there is a definite road between two public places it does not matter for what purpose it is used. It is not necessary that the public should use the road for any business purpose; it is quite sufficient if the purpose is merely for recreation, the exercise of walking, or the contemplation of the beauties of nature. (4) Its use must be maintained by the public themselves in order to keep up the right to the way. Continuous use is necessary, though the public need not use the road every day or every month; yet the right is in danger if use is discontinued for any length of time. But if the public allow themselves to be excluded from the road for seven years the proprietor becomes entitled to continue the exclusion by interdict without raising the question of public right—that is to say, possession for seven years throws the onus probandi on the public. According to the law of England such points are not construed in a narrow sense, and they distinctly differ in the following respects: (1) It is not necessary that the right of way be between two public places, and (2) continuous use is not necessary, for no lapse of time as regards user or the claiming of their rights can bar the right of the public to a footpath or a highway once dedicated to them, or where dedication can be assumed. There are, however, statutory provisions for shutting up a road when it becomes unnecessary. The whole breadth of the originally dedicated road, including what is known as 'road wastes,' must always remain as the right of way to the public, and cannot be encroached upon. See TRESPASS.
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 maintenancee 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 towards the costs of the maintenance, repair, enlargement, and improvement of any highway or public footpath in the county, although 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. Bills have since 1888 been introduced into the House of Commons by private members with the object of charging a public authority with the duty of protecting and maintaining rights of way, but no legislative measure has yet been passed. See also the section on the law of highways at ROAD. For right of way on the Norfolk Broads, see Walter Rye, Fishing, Shooting, and Sailing on the Norfolk Broads (Norwich, 1891).