Way - Definition - Law Dictionary Home Dictionary Definition way

Definition :

Way [fr. w'g, Sax.; weigh, Dut.; vig or wig, M. Goth.], road made for passengers.

1. A passage or pat 2. A right to travel over another's property, Black's Law Dictionary, 7th Edn., p. 1587.

There are three kinds of ways:-1st, a footway (iter); 2nd, a footway and horseway (actus, vulgarly called packe and prime way; 3rd, via or aditus, which contains the other two, and also a cartway, etc.; and this is two-fold, viz., regia via, the king's highway for all men, and communis strata, belonging to a city or town or between neighbours and neighbours. This is called in our books chimin, Co. Litt. 56 a.

All ways are divided into highways and private ways. A right of way strictly means a private way, i.e. a privilege which an individual or a particular description of persons may have of going over another's ground. Such a right is an incorporeal hereditament.

A highway is a public passage for the sovereign and all his subjects, and it is commonly called the king's public highway; and the turnpike roads, created and regulated by specific Acts of Parliament, have now for many years become ordinary highways. See TURNPIKE-ROADS. Highways generally be-come so by what is called a 'dedication' of them to the pubic by the owner of the soil.

Public bridle-paths and footways are highways within the meaning of the Highway Acts.

As highways are for public service, if they are so out of repair that the usual track is impassable, people may pass, by going out of the track, upon the land of the owners of the adjoining closes; but this privilege is confined to highways; for as private ways are presumed to have originated in grants from the owner of the soil, the want of repair, amounting to a founderous state, does not authorize passengers to go out of the way upon the adjacent land.

The inhabitants of a parish are prima facie bound to repair a highway of common right; unless by pres-cription they can throw the burden on particular persons by reason of their tenure; and if the inhabitants of a township, bound by prescription to repair, be expressly exempted by an Act of Parliament from repairing the rods to be made within the township, it falls on the rest of the parish.

By the (English) General Highway Act, 1835, power is given to stop up and divert highways, and the mode of proceeding to effect this object is pointed out. Parties grieved have a right of appeal to the sessions.

Bridges are public highways. See BRIDGE.

A private right of way may be claimed by prescription and immemorial usage; thus where the inhabitants of a particular hamlet, or the owners or occupiers of a particular close or farm, have immemorially been used to cross a particular piece of land, a right of way is created by the immemorial usage, which supposes a grant. By the Prescription Act, 1832 (2 & 3 Wm. 4, c. 71), s. 2, it is enacted that no claim by custom, prescription, or grant, to any way or other easement, or to any watercourse or the use of any water which has been enjoyed twenty years without interruption, shall be defeated by showing the commencement of the right within the time of legal memory; and where the right shall have existed forty years, it shall be absolute and indefeasible, unless it appears to have been enjoyed by express agreement made for that purpose by deed or writing. The right must be proved by user down to the time of the commencement of the action; and, therefore, if there be no proof of user for the last four or five years, it is insufficient. Unity of possession operates as an extinguishment of a right of way by prescription. See Shury v. Pigott, (1627) 3 Bulstrode 339, and EASEMENT.
A highway can always be dedicated to the public, and as to what will constitute dedication, see Simpson v. A.-G., 1904 AC 476.

By the (English) Rights of Way Act, 1932 (22 & 23 Geo. 5, c. 45), public use of way as of right and without interruption for a full period of twenty years is conclusive that way is a public highway, unless of such a character that user by public could not give rise at common law to any prescription of dedication; or unless there is evidence that there was no intention to dedicate, or unless there was not at any time any person in possession of such land capable of dedicating such way. Enjoyment of a way as of right and without interruption for a full period of forty years is conclusive evidence of dedication unless there is sufficient evidence that there was no intention to dedicate such way. The dedication could be made by a tenant for life and remainderman, Farquhar v. Newbury District Council, (1909) 1 Ch 12, and see Rights of Way Act, 1932, s. 4, as to the rights of remainderman or reversioners next entitled in possession.

A quasi-private right of way may also be grounded on a special permission; as when the owner of lands grants to another a liberty of passing over his grounds, to go to church, market or the like, in which case the gift or grant is particular and confined to the grantee alone; it dies with the person; the grantee cannot assign it, or justify taking another person in his company-it is a mere personal licence.

A right of way may also arise by act and operation of law; for if a man grant a piece of ground in the middle of his field, he at the same time tacitly and impliedly gives a way to come to it, and the grantee may cross the grantor's land without being a trespasser. Such a 'way of necessity' is limited by the necessity which created it; and when such necessity ceases, the right of way also ceases. See EASEMENTS.

Disturbance of way happens when a person, who has a right of way over another's grounds, by grant or prescription, is obstructed by enclosures or other obstacles, or by ploughing across it, by which means he cannot enjoy the right of way, or at least not in so commodious manner as he might have done. The remedy is usually by action on the case for damages. A right of way is often contested inaction of trespass. The remedy or the want of repair of or obstruction to public highways is by in-dictment. Consult Gale or Goddard on Ease-ments;Glen on Highwys.; and see HIGHWAYS; TRUNK ROADS.

Waterway.-A navigable river is deemed to be a highway; and if the water, which is the highway, change its course and flow upon the land of another, the highway extends over the place where the water newly flows in like manner as it existed over the ancient course, so that the owner may not disturb it. With respect to navigable rivers there is this difference, however, between them and highways, that the right to the soil of a navigable river is not, by presumption of law, in the owners of the adjoining lands.

Ferries may be said to be common highways, as they are a common passage over rivers. They differ, however in some measure, as they are the private property of individuals, who may maintain an action for the disturbance of their rights. See FERRY.