Q: “I have been using a right of way for several years and the right of way has fallen into disrepair. I have offered to put new gravel on the road, but the owner of the land has refused to allow me to do so and is going as far as refusing to let me fill potholes at this stage. At the same time, he is refusing to do the work himself. Am I entitled to repair the road and who is responsible for any damage caused by the current state of the roadway?”

A: The extent of rights of way is often determined by the way in which the right of way was acquired, for instance by express or implied grant, by statute or by prescription.

If there is a written agreement between the landowner and the user of the right of way, this should be reviewed to see if there are any provisions in the agreement governing who is responsible for the repair and upkeep of the right of way.

In the absence of such a written agreement, it is often the history of use and repair of the right of way which will determine any repairing obligations.

The grant or acquisition of a right of way carries with it such additional rights as are reasonably necessary to exercise that right.

If the person who owns the land over which the right of way exists does something that causes the right of way to fall into disrepair, he may be liable in nuisance for the interference with the use of the right of way.

For example, where the owner of the land places speed ramps on the roadway over which the right of way exists which gave rise to potholes, he would be liable to the user of the right of way for disturbance of the right of way if the ramps were retained without the way being repaired.

The right as opposed to the duty of the user of a right of way to repair the way is well established in case law.

The history of the user during his/her period of use will determine what repairs the user of the right of way can effect.

In one leading case, the defendant, who had use of a right of way, had cleared away bushes and briars on the farmer’s land over which the right of way was exercised. The width of the overgrown lane was thereby doubled and he proceeded to resurface it.

The court recognised the entitlement of the user of the right of way to keep the land over which the right of way existed in good repair and condition for whatever use he was entitled to make of it.

However, in repairing the right of way, the user is restricted from doing something which adversely affects the owner’s use of that land or imposes an excessive burden on the landowner.

For example, in another leading case, the user of the right of way had put down 700 tons of stone on a track which had become impassable at certain times of the year and in bad weather throughout the 60 years of the exercise of the right of way.

In this case, the court found that there was no reason why the pre-existing state of the way should not continue and the user of the right of way had trespassed by laying the stone road.

There is a fine line between liability for imposing an excessive burden on the landowner and a positive duty on the user of the right of way to repair.

In another leading case, it was held that where the user of a right of way inflicts serious damage to roads and then refuses to repair them, this amounted to an unlawful interference with the landowner’s right to use the land for his own purposes.

In that case, the judge refused to decide whether the defendant was entitled to use traction engines, motor lorries and caterpillars over the right of way for the purpose of removing timber over the landowner’s avenues and farm roads.

What he did decide was that if the user of the right of way was going to use this heavy machinery, he is not entitled to destroy the plaintiff’s avenues and farm roads and to render them useless to the plaintiff for his own purposes or to reduce them to such a condition as to be dangerous for the plaintiff to use them for his own purposes.

The position was summed up in the judgment where it provided that it is the duty of the person using the right of way to do all that is necessary to make the road available for himself and to protect the owner of the road from unnecessary injury.

Whether the owner of the land over which the right of way exists or the user of the right of way owes a duty of care under the Occupiers Liability Act, 1995, depends on who is regarded as the “occupier” of the premises.

Although the user of a right of way generally has a lack of control over the exercise of the right of way by the owner of the land, there are circumstances where he may be deemed to be the “occupier” by reason of his control over the lands over which the right of way exists.

Where the user of the right of way has constructed the way, then he is likely to be held liable for any danger arising on the way caused by a breach of duty in construction, such as a pothole caused by inadequate compaction of the subsurface.

In determining whether the occupier of the premises is the owner of the land or the user of the right of way, the court will have regard to who controls or admits access, the purpose of the particular feature of the premises which caused the injury, who installed it, who it benefits and by whom it is maintained.

Where there is more than one occupier, the extent of the duty of each occupier towards an entrant depends on the degree of control each of them has over the state of the premises and the particular danger thereon. Consequently, both the owner and the user of the right of way could owe a duty of care under the Occupiers Liability Act.

Disclaimer: The information in this article is intended as a general guide only. While every care is taken to ensure accuracy of information contained in this article, Aisling Meehan, Agricultural Solicitors does not accept responsibility for errors or omissions howsoever arising. E-mail ameehan@farmersjournal.ie