On the Waugh-path
Sir: The beleaguered landowners on whose behalf Mr A. Waugh writes to complain about the activities of assorted `ramblers and scramblers' (Another voice, 24 April) are in an even worse predicament than that portrayed by Mr Waugh. He seems to assume that if a person's land is crossed by an old byway, bridleway or footpath, the public way still belongs to him. The fact is in the vast majority of cases it does not. Where the right of way is maintainable at the public expense, as it usually is, the sur- face is owned by the relevant highway authority and not by the adjoining landowner. The latter's title will only revive if the path across his land ceases to be so maintainable.
It follows that Mr Waugh is wrong to suggest that `the State . . . makes free with its citizens' property' by allowing people to enjoy these publicly maintainable rights of way, for the property so enjoyed does not belong to the citizens. If a rambler puts up his tent for his summer holiday on an ancient public byway which crosses Mr Waugh's land, he is of course trespassing, for his only right is to pass along the byway, not to camp on it. He is therefore liable to be ejected by summary court order. But not by Mr Waugh. An action brought by that gentleman would be dismissed, for only the county council as highway authority is enti- tled to possession while the public way is maintainable by the authority. Fortunately, it is ultimately the general public, including the overpaid town-dwellers whose existence and lifestyle Mr Waugh so entertainingly regrets, whose taxes permit councils to be provided with the funds which enable them to carry out their highways functions.
Mr Waugh is, secondly, also wrong to Imply that in the past public rights of way were for the exclusive convenience of local People. As a practical matter, it was no doubt mainly the locals who did use them (still frequently the case today), but what made them public was precisely the fact that those entitled to use them were not confined to any particular class of person such as the local inhabitants. The fact that their use is often today for leisure purposes Is not only nothing to the point, it is also Consistent with the civilised objective of English law not to make the exercise of a person's right dependent on his or her pur- pose or motive in doing so.
Mr Waugh does not like ramblers who `exude a challenging air' when they encounter him as they walk along the coun- ty council's land, i.e., the public footpath, which adjoins or crosses Mr Waugh's own. To judge from the tone of Mr Waugh's arti- cle, it seems not unlikely that he exudes a challenging air of his own on such occa- sions. Two wrongs do not of course make a right. On this occasion, however, they are both Mr Waugh's.
G.F. Laurence QC
12 New Square, Lincoln's Inn, London WC2
Previous page
