“I have an outfarm a short distance away from the home farm that is accessed via a right of way through a neighbour’s farm. My right of way goes through the middle of the farm and I have to stop and open a gate into his field, get out and close the gate and then go down the lane to my land, get out open the gate to go in to my field, get out and close the gate. There are several fields of his opening out on to the lane and he won’t put a gate or fence in them to keep his stock in off the right of way for me. He won’t maintain the fences and leaves all that to me and will not repair or maintain the lane either. Do I have any rights or will I just have to put up with the situation?”
It is often claimed that the erection of a gate across a right of way constitutes an interference with the use of that right of way.
Whether it does or not depends on the purpose for which the gates were erected, such as to prevent straying animals or indeed the theft of animals.
It has been held in a case that the control of gates on a right of way was exclusively vested in the person who owned the land over which the right of way exists. However, they must give means of opening them to persons who use the right of way and those persons must close the gates immediately after use.
Rights
However, in another case it was held that the person who used the right of way was entitled to put gates on the right of way so long as they did not interfere with the rights of the person over whose land the right of way was exercised.
It may be unreasonable to oblige the user of the right of way to keep a gate shut for the purpose of keeping out livestock when this purpose is otherwise fulfilled by the provision of a cattle grid, for example. Also, there may be no obligation to keep the gates closed if there is no stock on the land. The obligations in respect of the installation of gates and the duty to keep them closed depend very much on the facts of the case.
Obligation to repair
In the absence of a written agreement, it is often the history of use and repair of the right of way which will determine any repairing obligations.
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 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, thereby doubling the width of the overgrown lane. The defendant then 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 way the user of the right of way is restricted from doing something which adversely affects the owner of the lands 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 700t 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.
Legal action
To summarise, it is clear that to be considered a disturbance with a right of way, there must be real substantial interference with the use of the right of way, which is determined by the facts of each case. The person who owns the land over which the right of way exists has as good a right to the enjoyment of his land as the person who uses the right of way.
Where there has been disturbance in the use of a right of way, the cause of action is a claim in nuisance.
Where a dispute involves no actual real substantial disturbance but arose from conflicting beliefs as to the rights of the parties, an application can be made to the court for a declaratory order.
In terms of who will be liable for court costs in such an action, in general in actions involving disputes as to rights of way, the circuit court makes no order as to costs unless it is necessary to mark the court’s disapproval of the behaviour of one of the parties.
Consequently, each party will pay their own legal costs and any such court action should be approached with caution.
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“I have an outfarm a short distance away from the home farm that is accessed via a right of way through a neighbour’s farm. My right of way goes through the middle of the farm and I have to stop and open a gate into his field, get out and close the gate and then go down the lane to my land, get out open the gate to go in to my field, get out and close the gate. There are several fields of his opening out on to the lane and he won’t put a gate or fence in them to keep his stock in off the right of way for me. He won’t maintain the fences and leaves all that to me and will not repair or maintain the lane either. Do I have any rights or will I just have to put up with the situation?”
It is often claimed that the erection of a gate across a right of way constitutes an interference with the use of that right of way.
Whether it does or not depends on the purpose for which the gates were erected, such as to prevent straying animals or indeed the theft of animals.
It has been held in a case that the control of gates on a right of way was exclusively vested in the person who owned the land over which the right of way exists. However, they must give means of opening them to persons who use the right of way and those persons must close the gates immediately after use.
Rights
However, in another case it was held that the person who used the right of way was entitled to put gates on the right of way so long as they did not interfere with the rights of the person over whose land the right of way was exercised.
It may be unreasonable to oblige the user of the right of way to keep a gate shut for the purpose of keeping out livestock when this purpose is otherwise fulfilled by the provision of a cattle grid, for example. Also, there may be no obligation to keep the gates closed if there is no stock on the land. The obligations in respect of the installation of gates and the duty to keep them closed depend very much on the facts of the case.
Obligation to repair
In the absence of a written agreement, it is often the history of use and repair of the right of way which will determine any repairing obligations.
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 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, thereby doubling the width of the overgrown lane. The defendant then 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 way the user of the right of way is restricted from doing something which adversely affects the owner of the lands 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 700t 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.
Legal action
To summarise, it is clear that to be considered a disturbance with a right of way, there must be real substantial interference with the use of the right of way, which is determined by the facts of each case. The person who owns the land over which the right of way exists has as good a right to the enjoyment of his land as the person who uses the right of way.
Where there has been disturbance in the use of a right of way, the cause of action is a claim in nuisance.
Where a dispute involves no actual real substantial disturbance but arose from conflicting beliefs as to the rights of the parties, an application can be made to the court for a declaratory order.
In terms of who will be liable for court costs in such an action, in general in actions involving disputes as to rights of way, the circuit court makes no order as to costs unless it is necessary to mark the court’s disapproval of the behaviour of one of the parties.
Consequently, each party will pay their own legal costs and any such court action should be approached with caution.
Read more
Read more from Aisling Meehan
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