# Upkeep of a Right of Way



## whiskey1 (10 Aug 2011)

I am a landowner. A neighbouring farmer uses a right of way across my lands to gain access to his lands and dwelling. I walk my cows on the right of way in order to access my field for grazing purposes. My neighbour recently put down stone on the right of way that will cut the cows hoofs. I explained my concern to him and asked him to stop. I said that I had no problem whatsoever in he making repairs to the right of way but only if the appropriate material is used i.e it does not damage the cattle's hoofs. He has refused to take up the stone and has left me with a problem with how to walk my cattle to the field. I do not want trouble but feel I must take a firm stand now. 

Can he interfere with the right of way without my permission?


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## onq (10 Aug 2011)

This is a vexed question and may not be as simple as it appears.

By stone I take it you mean hardcore as opposed to paving slabs and this has not been "whacked" to give a relatively smooth surface and even if it it did the hooves of the cattle would disturb it, leaving some stones sticking up and hurting the cattle's hooves.

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Taking things at face value at first -

If he has a lease to use the right of way then it should be defined by the terms of the lease.

If its an acquired right of way then it may be limited to the right to pass and repass along the right of way.

In other words he may have no right to do anything with the land whatsoever as it is not his property - he only has a right of way over it.

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However you state:

_"A neighbouring farmer uses a right of way across my lands to gain access to his lands and dwelling."_

That sounds like a more substantial right of way, particularly if it is the sole access to his dwelling and lands.

In fact it sounds like a more of less permanent right of way that you cannot interfere with and for which you or he may be liable to upkeep.

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You may get a more useful answer if you supply more detail.

ONQ.  


All advice on AAM is remote from the situation and cannot be relied upon         as a defence or support - in and of itself - should legal action    be      taken.
Competent legal and building professionals should be asked to advise in         Real Life with rights to inspect and issue reports on the matters    at      hand.


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## whiskey1 (13 Aug 2011)

The right of way does not involve a lease. The right of way has existed before my time, so I guess it is a permanent right of way. The right of way divides my field in half by a cattle fence running along both sides. My neighbour has now hired a solicitor and engineer. I am confident that the engineer will agree with me in that the material used to repair the roadway is unsuitable for cattle. Even if this is the case, and it proceeds down the legal route - time is not on my side as I needed to get cows to my field 2 weeks ago. The grass has now gone too strong to graze and is causing me financial loss and headaches. I have offered to come to an arrangement concerning the costs to repair the roadway but he has refused to answer and will not take up the material.


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## Ann1 (13 Aug 2011)

whiskey1 said:


> The right of way does not involve a lease. The right of way has existed before my time, so I guess it is a permanent right of way. The right of way divides my field in half by a cattle fence running along both sides. My neighbour has now hired a solicitor and engineer. I am confident that the engineer will agree with me in that the material used to repair the roadway is unsuitable for cattle. Even if this is the case, and it proceeds down the legal route - time is not on my side as I needed to get cows to my field 2 weeks ago. The grass has now gone too strong to graze and is causing me financial loss and headaches. I have offered to come to an arrangement concerning the costs to repair the roadway but he has refused to answer and will not take up the material.


If your neighbour is a farmer himself.... surely he would be aware how unsuitable the material is where farm animals are concerned.  It would appear that by using this material he has obstructed your right of way to your land.
I am sure the RSPCA would also see this type of material as potentially harmful to your cattle' feet. Also if one of the cattle slipped and fell.....there could be further injuries. I found this link.....don't know if it will be any help but I suppose it's worth a read. 
[broken link removed]


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## onq (15 Aug 2011)

Whiskey1,


I think you may need to appoint professionals to assist you who are experienced in matters such as you describe.

The "stoning" of the right of way already carried out may need  permission, which could be a big stick for you to wield.

There may be a planning requirement for the new road, in that I don't see roads being built over farming land as a matter of course.

You may need to take professional advice from a competent architect  or planning consultant in relation to the exempted development schedule.

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You may also need other professionals acting for you

Solicitors are competent to advise on the right of way.

Engineers are competent to advise on the construction of roads.

You could be unwise think that your neighbours professionals will act even-handedly towards you.

At the least you will need to ensure that your neighbour's solicitor does not take a legal action to claim more rights than he already has.

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A permanent new roadway (which is where this seems to be going) may affect drainage or services through the land to the detriment of your property or adjoining properties.

Roadworks exert a pressure on the subsoil which can cause local flooding.

There may be wildlife habitat issues which you may or may not be required to support.

You need to ensure that as a result of these operations you, as the landowner, are not liable for the costs of installation or upkeep or additional insurance relating to the new road.

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You will also need to take specific advice in relation to the implications of the Land Conveyancing Law Reform Act and the registration of Rights of Way.

This may be what has prompted your neighbour's R.O.W. actions, because a section in this Act effectively extinguishes all unregistered Rights of Way unless they are Registered by next year.

This post may be relevant http://www.askaboutmoney.com/showpost.php?p=1188841&postcount=6

This thread is the context http://www.askaboutmoney.com/showthread.php?p=1188841#post1188841


ONQ.  

[broken link removed]  

All advice on AAM is remote from the situation and cannot be relied upon            as a defence or support - in and of itself - should legal    action    be      taken.
Competent legal and building professionals should be asked to advise in            Real Life with rights to inspect and issue reports on the    matters    at      hand.


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## WizardDr (15 Aug 2011)

onq - very comprehensive.

Er ..mediation might be initially be a better way ..

onq- I may be lazy but where is the extingishment reference you refer to? Is that s39?


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## onq (15 Aug 2011)

WizardDr

This appears to be the relevant section.

S34 seems to be the abolition and S35 the possible remedy.
S39 seems to suggest rights may be lost after 12 years disuse.

Here are all the Sections, 35 - 39 of Part 8, Chapter 1 for the readers.
The whole chapter hangs together needs a proper review and a test case.

To my mind it is one of the most draconian pieces of legislation ever written into Irish law.
It undoes at a stoke rights enjoyed and established over a period stretching back twenty years.

Establishing a right and keeping it going by one person walking over it once a year seems to be pushing it.
But equally acting against the public good for the benefit of private landowners seems to be a wholly retrograde step.
One link above leads to Minister Alan Shatter's  response to queries raised in relation to this matter and makes good  reading

I suspect the State has shot itself and the majority of electorate in the foot by giving benefits to private landowners, developers and NAMA.
Is every public drain, culvert, service route and power line the subject of formal Registration in the PRIA - if not, is there a get out clause for the State?


FWIW

ONQ.  

[broken link removed]  

All advice on AAM is remote from the situation and cannot be relied upon             as a defence or support - in and of itself - should legal     action    be      taken.
Competent legal and building professionals should be asked to advise in             Real Life with rights to inspect and issue reports on the     matters    at      hand.     

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From:

http://www.irishstatutebook.ie/2009/en/act/pub/0027/print.html 

_ Number_ 27 _of_ 2009
​ *LAND AND CONVEYANCING LAW REFORM ACT 2009*​ 
*PART 8*​ *Appurtenant Rights*​ *Chapter 1*​ _*Easements and profits à prendre*

__Abolition of certain methods of prescription._

*34*.— Subject to _section 38_ , acquisition of an easement or _profit à prendre_  by prescription at common law and under the doctrine of lost modern  grant is abolished and after the commencement of this Chapter  acquisition by prescription shall be in accordance with _section 35_ .

_Acquisition of easements and profits à prendre by prescription._

*35*.— (1) An easement or _profit à prendre_ shall be acquired at law by prescription only on registration of a court order under this section.[PA 1832]

 [PA 1858]

 (2) Subject to _subsection (3)_, in an action to establish or dispute the acquisition by prescription of an easement or _profit à prendre_, the court shall make an order declaring the existence of the easement or _profit à prendre_ if it is satisfied that there was a relevant user period immediately before the commencement of the action.

 (3) The court may make an order under _subsection (2)_  where the relevant user period was not immediately before the  commencement of the action if it is satisfied that it is just and  equitable to do so in all the circumstances of the case.

 (4) An order under _subsection (2)_ shall be registered in the Registry of Deeds or Land Registry, as appropriate.
​_Tenancies

_*36*.— (1) Where the dominant owner acquiring an easement or _profit à prendre_ under _section 35_ owns a tenancy only in the dominant land, the easement or _profit à prendre_ attaches to that land and when the tenancy ends, passes to the landlord.

 [PA 1832, s. 8](2) Where an easement or _profit à prendre_ is acquired under _section 35_ against a servient owner who owns a tenancy only in the servient land,  it ends when that tenancy ends, but if the servient owner—​(_a_) acquires a superior interest in the land, the easement or _profit à prendre_ attaches to the superior interest,

 (_b_) obtains an extension or renewal of the tenancy, the easement or _profit à prendre_ continues to attach to the land for the period of that extension or renewal.​(3) Nothing in _subsection (2)_ prevents the subsequent acquisition of an easement or _profit à prendre_ under _section 35_ on the basis of a new relevant user period against a landlord who takes possession of the servient land after the tenancy ends.​_Incapacity._

*37*.— (1) Subject to _subsection (2)_,  where the servient owner is incapable, whether at the commencement of  or during the relevant user period, of managing his or her affairs  because of a mental incapacity, the running of that period is suspended  until the incapacity ceases.[PA 1832, s. 7]

 (2) _Subsection (1)_ does not apply where—(_a_)  the court considers that it is reasonable, in the circumstances of the  case, to have expected some other person, whether as trustee, committee  of a ward of court, an attorney under an enduring power of attorney or  otherwise, to have acted on behalf of the servient owner during the  relevant user period, or

 (_b_) at least 30 years have elapsed since the commencement of the relevant user period.​_Application of sections 34 to 37._

*38*.— In relation to any claim to an easement or _profit à prendre_ made after the commencement of this Chapter, _sections 34_ to _37_ —(_a_)  apply to any claim based on a relevant user period notwithstanding that  it is alleged that an additional user period occurred before that  commencement,

 (_b_)  do not apply to any claim based on a user period under the law  applicable prior to the commencement of this Chapter and alleged to have  commenced prior to such commencement where the action in which the  claim is made is brought within 3 years of such commencement.​_Extinguishment._
*
39*.— (1) On the expiry of a 12 year continuous period of non-user of an easement or _profit à prendre_ acquired by—(_a_) prescription, or

 (_b_) implied grant or reservation,

 the easement or _profit à prendre_ is extinguished except where it is protected by registration in the Registry of Deeds or Land Registry, as appropriate.​(2) This section applies to extinguishment of an easement or _profit à prendre_  notwithstanding that it was acquired before the commencement of this  Chapter, provided at least 3 years of the period of non-user occur after  such commencement.

 (3) Nothing in this section affects the jurisdiction of the court to declare that an easement or _profit à prendre_, however acquired, has been abandoned or extinguished.​


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## onq (15 Aug 2011)

WizardDr said:


> Er ..mediation might be initially be a better way ..



Looking at it from this distance it's impossible to predict, but I'd say there is a definite agenda that only a court order by the OP may prevent.

It looks like the adjoining landowner is either trying to establish further rights on land or literally "cement" his existing rights using a method which suggests planning permission may be required.

Normally mediation is useful where both parties can see "common ground", but the OP's history of events suggests that the other party is not heedful of the OP's concerns and so a swift administration of justice may be required to bring him to heel.

ONQ.

All advice on AAM is remote from the situation and cannot be relied upon              as a defence or support - in and of itself - should legal      action    be      taken.
Competent legal and building professionals should be asked to advise in              Real Life with rights to inspect and issue reports on the      matters    at      hand.


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