Special Acts of Parliament

Railways Clauses Consolidation Act 1845: Inspectors should be familiar with the following clauses:
Clause 10: True copies of the plans and books of reference to be received as evidence of the contents thereof
Clauses 46-51: Railway crossings by bridge and at level

Case Law

Monmouthshire Canal Company v Hill (1859) 4 H & N 421: A towpath is legally part of a canal.

Grand Junction Canal Company v Petty CA (1881) 21 QBD 273: Any dedication to the public along a towpath is a limited dedication and cannot set up a right to prevent or limit the use of the tow-path.

Dartford Rural District Council v Bexley Heath Railway Co.[1898] AC 210: The 1845 Act does not impose a duty upon a railway company to carry a footpath over the railway or the railway over the footpath by means of a bridge.

Other Publications

Rights of Way: A guide to law and practice’ by John Riddall and John Trevelyan (published by the Open Spaces Society and the Ramblers’ Association) pages 50 and 51

Woolrych – A treatise of the law of ways: including highways, turnpike roads and tolls, private rights of way, bridges and ferries 1847(2nd Edn.): Chapter X
‘Documentary Evidence’ – a paper by Christine Willmore, July 2002 (see annex 2 of these Guidelines)

The following article, which is of interest, has appeared in the RWLR
Railway and Canal Deposited Plans - W Riley, RWLR Oct 1990

GUIDANCE

Introduction

10.1 Individual railway and canal schemes were promoted by Special Acts. The process for Canal Schemes was codified in 1792 by a Parliamentary Standing Order and these arrangements were extended to cover Railway Schemes in 1810. The requirements for railways were expanded in the 1845 Act, which requires public rights of way which cross the route of a railway to be retained unless their closure has been duly authorised. Therefore, although it was not the primary purpose of the deposited plans to record rights of way, these plans can provide good evidence in this context.
10.2 The referenced RWLR article is a helpful exposition which should be read in full. The 1845 Act is explained in detail in Woolrych’s ‘Law of Ways’ and the referenced 2002 paper has a short section on the subject.

Statute

10.3 Clause 10 of the 1845 Act requires that True copies of such plans and books of reference ... certified by any such clerk of the peace .... shall be received by the courts of justice or elsewhere as evidence of the contents thereof. The Act also includes provisions for the crossing of the line by any highway and specifies (Clauses 46 to 51, which should be read) the minimum bridge dimensions for public and private roads and the requirements for the gating of crossings on the level.

Evidential Value

10.4 Both canal and railway deposited documents were in the public domain. The statutory process required for the authorisation of railway schemes, and to a lesser extent canal schemes, was exacting and the book of reference and deposited plans made in the course of the process needed to be of a high standard. In particular, railway plans, which were normally specifically surveyed for the scheme, usually record topographical detail faithfully. They have been admitted by the courts as evidence of public rights of way. In addition, where available, surveyors’ notes can provide useful information regarding the then function of a particular way.

10.5 The process for the authorisation of railway schemes provided for scrutiny of the plans by involved parties. Landowners would not have wished unnecessarily to cede ownership, Highway Authorities would not have wanted to take on unwarranted maintenance responsibilities, and Parish Councils would not have wished their parishioners to lose rights. Therefore an entry in the book of reference that a way was in the ownership of the ‘Surveyor of Highways’ may be persuasive evidence of a public right of some description. However, the weight to be given to this can only be determined when it is considered alongside all the other evidence. It may be that there is reputable evidence to rebut it such as a deed, conveyance or local map. The material available relating to canal schemes is generally more limited, both in quality and scope, than that for railway schemes.

10.6 Where schemes were not completed, the plans were still produced to form the basis for legislation and were still in the public domain. Whilst they are likely to provide useful topographical details, they may not be as reliable as those that have passed through the whole parliamentary process. As above, the weight to be attached will need to be determined alongside all the other available evidence.

Status

10.7 Railway plan sections and cross-sections usually differentiate between public and private roads. Where this is not the case and the route is described as ‘road’ in the book of reference, it is sometimes possible to establish the nature of the way by reference to the description of other roads. Unless the existing roadway was less than 25 feet (in which case section 51 of the 1845 Act set the minimum by reference to the average available width for the passage of carriages within 50 yards of the point of crossing), the minimum width for bridges laid down in the 1845 Act is 25 feet (7.62 metres) for public roads and 12 feet (3.66 metres) for private roads. However, caution needs to be exercised regarding the latter as some high status estate roads had wider bridges. There were no specified widths for bridleways or footpaths. If a manned level crossing is shown, the associated route is likely to be a public vehicular road. Canal maps and their associated books of reference do not always differentiate between public and private roads. A towpath is legally part of a canal but may also be a highway.

10.8 The status of a way had an impact on the cost of the scheme and it is unlikely that railway plans would show a route at a higher status than was actually the case. There was no obligation to bridge footpaths under the 1845 Act and, as a general rule, unless there is specific provision in the Special Act, any public route requiring a bridge is of at least bridleway status. Bridleways and footpaths which are not shown on the plan are sometimes described in the associated book of reference. Canal plans and their associated books of reference record roads, but do not normally record bridleways and footpaths. Any public rights along a towpath are generally limited to footpath (refer to pages 50-51 of Rights of Way: A guide to law and practice).

Concluding Remarks

10.9 For the above reasons deposited plans can be good evidence to support a claim that a highway existed at the time they were made. Where this is not the case, they are still useful in establishing that a particular route existed.

Revised April 2004