1. General advice
This research guide indicates the principal sources of information about rights of way. It is not a statement of law, and The National Archives cannot give legal advice. Many other series of records not mentioned in this research guide contain information about highways.
The principal pressure groups and dispensers of general advice on the subject are:
Open Spaces Society
25a Bell Street
Henley-on-Thames
Oxon RG9 2BA
Byways and Bridleways Trust
PO Box 117
Newcastle upon Tyne
NE3 5YT
Rights of Way Law Review
The Granery
Charlcutt
Calne
Wiltshire
SN11 9HL
2. Some definitions
Every way is either a private way or a highway. Strictly speaking, the term 'right of way', when it stands alone, relates to a private way: it describes the right enjoyed by a particular person or group of people to pass over land which belongs to another. Such a group of people may be as loosely defined as 'the public'.
A highway is a public passage for the use of the sovereign and all his or her subjects: hence it was commonly called 'the King's highway'. The Highway Act 1835 (5 & 6 Will IV c.50) defines highways as all roads, bridges (not being county bridges), carriageways, cartways, horseways, bridleways, footways, causeways, churchways and pavements. Navigable rivers and ferries are also public highways. A highway may exist by prescription, uninterrupted use since time immemorial, by Act of Parliament or by dedication. A dedication exists where a person expressly or tacitly throws open for public use a road on his land, and the public assent to or avail themselves of the dedication. A way is presumed to be a highway when it has been used by the public for twenty years, unless there is sufficient evidence that there was no intention during that period to dedicate such a way (Rights of Way Act 1932, confirmed by section 34 of the Highways Act 1959).
Section 23 of the 1835 Act provided that no road or other way was to be deemed a highway maintainable at public expense unless notice of dedication had been given in writing to the parish surveyor. The form of such notification was printed as a schedule to the Act. This provision remained in force until repealed by the Highways Act 1959 (7 & 8 Eliz II ch.25). These notices of dedication may sometimes survive in local record offices. They are not in The National Archives.
Some rights of way were the subject of private agreements between landowners and others. Such agreements are unlikely to be found in The National Archives. However, where there was an alteration to rights of way (including the building of new highways and turnpike roads) across or serving property owned by the Crown agreements, surveys, correspondence and maps may be found among the records of the Crown Estate Office, particularly in CRES 2, CRES 6 and CRES 35.
3. Turnpike roads
These were roads maintained out of tolls levied on passengers. A turnpike was a gate across a road, opened to allow those who had paid the toll to pass. They were usually by-ways, the great arterial roads being highways. Many turnpikes were authorised by local Act of Parliament, and administered by turnpike trusts. The requirement to deposit plans in respect of turnpike roads dates only from 1814. Most of these plans, if they survive, are in the Parliamentary Archives.
Turnpike roads did not fall within the operation of the Highway Act 1835. Most were transferred in the latter part of the nineteenth century from turnpike trusts to Highway Boards. Correspondence and papers relating to these transfers and to the winding up of the turnpike trusts or the renewal of their powers for limited periods under the Turnpike Trusts Continuation Acts are in MH 28. A subscription contract in respect of the Elland to Leeds turnpike, 1740, is in RAIL 1164. A few modern files about tolls are in MT 128.
4. Recording of rights of way
The Countryside and Rights of Way Act 2000 is the largest statute governing rights of way, it amends parts of the Highways Act 1980 and the Wildlife and Countryside Act 1981.
Section 31 of the Highways Act 1980 replaced section 34 of the Highways Act 1959 which provided that an owner of land might deposit with the appropriate local authority maps and statements indicating which ways (if any) over that land he admitted to have been dedicated as highways. Maps and statements made under the 1959 and the 1980 Acts should be deposited in due course in the appropriate local record office.
Part III of the Wildlife and Countryside Act 1981 replaced two earlier statutes: the National Parks and Access to the Countryside Act 1949 and the Countryside Act 1968. Regulations as to the form and distribution of definitive maps and statements made under the 1981 Act were set out in the Wildlife and Countryside (Definitive Maps and Statements) Regulations 1983 (SI 1983 no. 21).
No records made under any of these statutes have been deposited in The National Archives. Maps and statements made under the 1959 and the 1980 Acts, and Rights of Way Improvement Plans made under the 2000 Act, should be deposited in due course in the appropriate local record office.
Section 32 of the 1949 Act required local authorities to produce definitive maps and statements defining rights of way in their areas. Such maps and statements may be amended from time to time by revised maps, by subsequent legislation or by an instrument to authorise the stopping up, diversion, widening or extension of a highway (see below). Local authorities are required to make the definitive maps and statements available for public inspection: this is usually done by depositing them in the appropriate local record office. Footpaths, bridleways, and roads used as public paths are distinguished on the maps.
In pursuance of the Countryside Act 1968, local authorities were required to carry out a special review of all public paths. These were to be classified under three heads: byways open to all traffic, bridleways and footpaths. The public footpath reviews and statements created under this Act are also normally deposited in local record offices.
Until recently, Ordnance Survey maps have borne a disclaimer stating that the depiction thereon of any road, track or path does not constitute evidence of the existence of a public right of way. With the public availability of definitive maps, Ordnance Survey maps at 1:50,000 and 1:25,000 scales now indicate footpaths, bridleways, roads used as public paths, and byways open to all traffic. Such information is stated to be based on the definitive maps and 'subject to the limitations imposed by the scale of mapping'. The National Archives is not a place of deposit for successive editions of published Ordnance Survey maps: readers seeking specific sheets are advised to enquire of a major library in the area in question or of the British Library, Map Library, 96 Euston Road, London, NW1 2DB. Papers about Ordnance Survey policy regarding the depiction of rights of way are in OS 1 and OS 11. Copies of many definitive maps and public path orders were sent to Ordnance Survey for use in preparing published maps. These records were transferred to The National Archives in late 2010 and early 2011 as series OS 75 (definitive maps) and OS 78 (public path orders).
Digital versions of the Registrar's District maps from the series RG 18, based on the Ordnance Survey "Old Series" are available online from Cassini Maps.
5. Extinction of rights of way
The first Act of Parliament to provide general powers to stop up highways was the Town and Country Planning Act 1947. However, the exercise of emergency powers to requisition land during the Second World War often affected rights of way over such land. Orders to stop up or divert highways under the Defence (General) Regulations 1939 are in MT 78. MT 78 can be searched in the Catalogue using:
- name of parish
- name of town
- name of village
- name of Rural District Council
- name of Urban District Council
- for larger towns and cities, name of road or street
In 1945, the War Works Commission was set up to deal with problems arising from the emergency use of private land. The Commission's records, in T 180, include a number of files about the closure of highways and footpaths at airfields, ordnance factories and other strategic sites.
Notices about proposals to stop up or divert highways are usually published in the local press and in the London Gazette (online and in ZJ 1). Subsequently an Order authorising the change is made and deposited according to the provisions of the Act of Parliament under which the Order is made. Orders made under the Highways Act 1959 were to be transmitted to clerks of the peace and enrolled among the records of quarter sessions. Stopping-Up Orders made under the following Acts are in The National Archives in the series MT 78:
- Requisitioned Land and War Works Act 1945
- Civil Aviation Acts 1946 and 1949
- Supplies and Services (Defence Purposes) Act 1951
- Town and Country Planning Acts 1947, 1962, 1968 and 1971.
Some Rights of Way Extinguishment Orders are among the Housing Instruments and Consents in HLG 13; related registered files are in HLG 47. Orders made under the Town and Country Planning Acts 1944 and 1947 are in HLG 26 (registers in HLG 66). Orders made concerning the creation, stopping up and diversion of footpaths in Welsh counties and county boroughs are in BD 20.
Orders made after 1956 by Liverpool Crown Court under the Liverpool Highway Act 1835 are in J 108. Similar Orders made by Manchester Crown Court under the Manchester General Improvement Act 1851 are in J 109. Earlier Orders in these two series are deposited locally with the appropriate quarter sessions records.
References to closures of footpaths and other ways are to be found in numerous series of registered files. Mid 19th-century licences to stop up footpaths are recorded in HO 141. Some information about rights of way over Ordnance Board lands is in WO 44. A very few files are among the records of the Treasury Solicitor (TS 18 and TS 28). Stopping up orders, some with maps and considerable background detail may sometimes be found in KB 16 (Records of Orders and Writs returned).
Inquisitions ad quod damnum from at least the early seventeenth century until the nineteenth century record both the proposed closure of old highways and footpaths consequent on enclosure of lands, and also the provision of alternative ways to replace the old roads and paths. The dimensions of both are recorded, and the local field names over which the routes were to pass may also be given. The inquisitions are in C 202: the series list is indexed.
Rights of way which remain unrecorded on a definitive map by 1 January 2026 will be deemed to have been extinguished (Countryside and Rights of Way Act 2000, section 56).
6. Long distance walking routes
The responsibility for submitting proposals for long distance routes along public rights of way and for making arrangements with local authorities for the establishment of routes which secured ministerial approval, lay with the National Parks Commission. Files on such routes are in COU 1 and HLG 92. Minutes of the Long Distance Routes Committee, 1954-1966, are in COU 2. Publications and publicity material are in COU 3.
7. The National Byway
The National Byway is a heritage cycle route around Britain, using quiet rural roads and byways. The end result will be a 4,000-mile cycle route which is scheduled for completion in 2005. The National Byway is being organised in ten regions, six of which are now operational. It is being funded by the Department of Environment, Food and Rural Affairs (DEFRA) and the European Agricultural Guidance and Guarantee Fund. Maps at 1 inch to 3 miles are being produced. No related records are in the national Archives: for more information see the National Byway website.
8. Rights of way on enclosure documents
Many enclosure awards contain information about the status of roads and other ways, including public paths and occupation roads, and state who was responsible for their maintenance and for the maintenance of hedges and fences along the boundaries of fields. Some enclosure maps distinguish between major and minor roads but no inferences should be drawn from the absence of such information.
9. Rights of way on tithe documents
Although roads, particularly public highways, were usually exempt from tithes, no positive inferences about the status of ways can usually be drawn from the tithe documents. Some tithe files (IR 18) contain information about the condition of local roads, the existence of turnpikes and main roads leading out of the district, and recent improvements to roads. Some tithe maps distinguish between major and minor roads. Some apportionments name owners of private ways but no inferences should be drawn from the absence of such information.
10. Rights of way in Valuation Office Field Books
The existence of a public right of way could be off-set against increment value duty under the Finance (1909-10) Act 1910, and many ways are thus recorded in the Valuation Office Field Books (IR 58). However, it should be noted that it is the mere fact of the existence of a way and not normally its precise location or course which is recorded.
