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Bridge over navigation rights - powers in the past?


magpie patrick

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This picture is Boney's Bridge, carrying the Thames Path over the Bulstake Stream in Oxford. The Bulstake Stream has a right of navigation under the bridge and under others. I'm working elsewhere on the Thames (or rather, a backwater) on a Statutory Instrument for a similar bridge, which won't be a problem. However, some idle (As in not entirely relevant to the topic we're working on) questions got me thinking - it started with someone asking whether Boney's Bridge had an SI.

 

SI have only been around since 1948 (and are only published on the Government website if made since 1990) - SI's are secondary legislation, so to get one to take a road over a navigable river one must have the power to build the road in the first place.

 

The above bridge was almost certainly built before 1948, it's of a style similar to bridges I can evidence were built at the end of the 1920's and early 30's, so an SI wasn't used. they didn't exist. 

 

I understand that the Bulstake Stream was the main navigation stream until Osney Lock was built in 1790 (although elsewhere I've read that the Castle Mill Stream, on the other bank, also had this function in the past). It may be that a bridge (but not this one) was built to carry the towpath up to Osney Lock - assuming there was a towpath that is. 

 

So I guess my question is, what powers would have been used for bridges like this? Or would the navigation authority (Thames Conservancy after 1857, various commissioners before then) have just done it and not worried about the legal niceties? 

 

Nothing in particular rides on the answer, I'm just generally interested. That said, on occasion I do get handed legal riddles whereby it appears that someone acted without authority over 200 years ago and all successors have just assumed the initial agency had the powers to do what they did. 

 

 

Boney's Bridge.jpg

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I would have assumed that a bridge for a towpath would have been covered by a general clause in a navigation Act, with road bridges being covered by a separate clause. Navigation Acts became more standardised from the 1790s, with those prior to that date being more concerned with specific items which were considered problematic. For example, pre-1790 canal Acts are very general with regard to water supplied, with later Acts being much more specific. Could the same be said for bridges?

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1 hour ago, Pluto said:

I would have assumed that a bridge for a towpath would have been covered by a general clause in a navigation Act, with road bridges being covered by a separate clause. Navigation Acts became more standardised from the 1790s, with those prior to that date being more concerned with specific items which were considered problematic. For example, pre-1790 canal Acts are very general with regard to water supplied, with later Acts being much more specific. Could the same be said for bridges?

I would agree. Whilst I don't know about the Thames specifically, various rivers which had been navigable for centuries had in the18th/19th century Acts of Parliament passed to provide a towing path along the navigation. I would expect such Acts to include general powers to construct works ancillary to the provision of a towing path, such as bridges over side streams.

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As I understand it the Thames never got powers to construct a towpath and some riparian owners caused a lot of trouble. I understand that down stream of Bray the Commissioners/Conservancy constructed a towpath under water on the river bed because of this. Tis also as I understand it why the Thames path leaves the river in some places but this may be more to do with the withdrawal of ferry services.

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52 minutes ago, Tony Brooks said:

As I understand it the Thames never got powers to construct a towpath and some riparian owners caused a lot of trouble. I understand that down stream of Bray the Commissioners/Conservancy constructed a towpath under water on the river bed because of this. Tis also as I understand it why the Thames path leaves the river in some places but this may be more to do with the withdrawal of ferry services.

 

 

So to tow a boat using that section of underwater towpath, one would presumably use a seahorse?

 

 

 

 

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1 hour ago, Tony Brooks said:

As I understand it the Thames never got powers to construct a towpath and some riparian owners caused a lot of trouble. I understand that down stream of Bray the Commissioners/Conservancy constructed a towpath under water on the river bed because of this. Tis also as I understand it why the Thames path leaves the river in some places but this may be more to do with the withdrawal of ferry services.

The River Cam also had a submerged towpath along The Backs.

P0003.jpg&key=6f38afd339c4a6527bf92cca05

https://www.canalworld.net/forums/index.php?/topic/73805-submerged-towpaths/&tab=comments#comment-1506306

Edited by David Mack
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This model in the Inn Museum, Rosenheim, Bavaria, shows how trains of boats were worked upstream on the Inn, and probably elsewhere in Europe, without the need for a towpath. I suspect parts of the Thames would have been similar up to the 18th century.

Rosenheim.jpg

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3 hours ago, David Mack said:

It's still there, very handy stone surface for punting along that stretch ....

(Trick question, how many balls are there today on that bridge?).

Edited by Scholar Gypsy
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12 hours ago, magpie patrick said:

 

 

. . . I do get handed legal riddles whereby it appears that someone acted without authority over 200 years ago and all successors have just assumed the initial agency had the powers to do what they did. 

 

It was far more common for people to just go ahead and do things in years past, and not worry about the possibility of consequences unless and until people whose rights were affected objected.

 

A bridge over a navigable river was never usually considered a problem, so long as it did not affect the navigation of such boats as had previously used the river. It was more of a problem if supports were erected in the riverbed, because then there was an automatic obstruction created, and the builders were indictable for the offence.

 

However, whether or not the offence could be proven in law did often depend upon practicalities more than the letter of the law, and the rail bridge just above the Boston Sluice is a classic case in point. Undeniably, the massive arched pillars built on the riverbed were in strict law an obstruction, but these things were determined by juries, and the jury in that case decided that as the Sluice was itself a restriction, and any boat able to pass through that could pass through the arch immediately in front of it, then no navigational obstruction in real, practical terms existed.

 

In lesser rivers in relative backwaters even such practicality was deemed unnecessary. Prior to the Grand Junction Canal Act the river Brent had various branches leading to the Thames, all of them subject to the public right of navigation, but even when one of the major local landowners erected works on one of them that restricted boat passage, and indeed threatened to block it altogether, the Lord of the Manor blithely dismissed the charge laid against the chap on the grounds that ‘the new canal’ would remedy the situation.

 

Doubtless the fact that the two gentlemen (Lord and property owner) were friends and business partners had nothing to do with it. As it turned out, a decision was made to route the ‘new canal’ along a different branch, and the partially obstructed branch became infilled altogether over the years, so the PRN was illegally obliterated entirely. The Duke of Northumberland later even took out a court case against the Great Western & Brentford Railway for NOT filling in all the other branches – it has always perplexed me how thoroughly the common law rights could be over-ridden so completely, with scarcely a murmur of protest, and even judges being oblivious to the law.

 

In large part, no doubt, ignorance of the populace aided the demolition of their rights, and it is not really so different from the present day. However, no limitation periods apply to obstruction of either highways or navigable waterways, so if there was any case to answer when the bridge was first built, and unless some judicial determination had approved it, it would always be open (theoretically at least) to challenge.

 

One thing would be interesting to check, and that would be whether the path and bridge were officially recognised as a public right of way under the 1949 Act, as a highway maintainable by the inhabitants at large (and since 1959 ‘at the public expense’). If so, then the 20 year rule would have been applied back then and the bridge now long since legitimised whatever its origins. There will be a Definitive Map and Statement relating to it if so.

 

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8 hours ago, NigelMoore said:

One thing would be interesting to check, and that would be whether the path and bridge were officially recognised as a public right of way under the 1949 Act, as a highway maintainable by the inhabitants at large (and since 1959 ‘at the public expense’). If so, then the 20 year rule would have been applied back then and the bridge now long since legitimised whatever its origins. There will be a Definitive Map and Statement relating to it if so.

 

(Thread swerve) Is that “maintainable at the public expense” a universal thing for rights of way, and how does that apply to public footpaths? The bridge at Big Lock in Middlewich carries an official public footpath.

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1 hour ago, AndrewIC said:

(Thread swerve) Is that “maintainable at the public expense” a universal thing for rights of way, and how does that apply to public footpaths? The bridge at Big Lock in Middlewich carries an official public footpath.

No, a right of way may not necessarily be classified as maintainable at the public expense, and there are many rights of way that may be voluntarily granted or purely private. Those are usually classified as “Permissive Paths”, commonly found on land owned by a public body such as railway companies or the National Trust, but also on private estates which have areas open to the public.

 

It most definitely applies, however, to public footpaths.

 

The National Parks and Access to the Countryside Act 1949, Part IV.s.27(6) - " footpath " means a highway over which the public have a right of way on foot only, other than such a highway at the side of a public road ; " public path " means a highway being either a footpath or a bridleway;

 

S.47-(1) provided: “Subject to the following provisions of this Part of this Act, the rule of law whereby a highway is repairable by the inhabitants at large shall apply to all public paths, whether coming into existence before or after the commencement of this Act, notwithstanding anything contained in any enactment passed or made before the commencement of this Act and notwithstanding any liability to repair of any other person: and accordingly the enactments relating to highways so repairable shall have effect in relation to all such public paths.”

 

Much if this was repealed by the Highways Act 1959, which then provided: s.38 – (1) “After the commencement of this Act no duty with respect to the maintenance of highways shall lie on the inhabitants at large of any area. (2) Without prejudice to any other enactment . . .the following highways shall for the purposes of this Act be highways maintainable at the public expense, that is to say – (a) a highway which immediately before the commencement of this Act was maintainable by the inhabitants at large of any area or maintainable by a highway authority;

 

Interestingly, from a boaters’ perspective, the 1949 Act definitions provided in s.27(7): “A highway at the side of a river, canal or other inland navigation shall not be excluded from any definition contained in the last foregoing subsection by reason only that the public have a right to use the highway for purposes of navigation, if the highway would fall within that definition if the public had no such right thereover.

 

Throughout the initial period set aside for objections to be heard, the British Transport Commission were furiously arguing that the canal towpaths should be excepted as having no public rights of way – certainly in London – but were over-ruled, so that despite BW/CaRT representations to the contrary, much of the London towpaths at least were officially made public highways maintainable at the public expense, open to all the public as footpaths (though not necessarily as bridleways or BOATS – a serendipitously amusing acronym in this context).

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1 hour ago, Pluto said:

Access to canal towpaths was assessed in 1961, as this note shows. BW were keen at the time for access to remain permissive rather than free.

So they were (though it was BTC at the time, not BW), and so they (BW) continued to assert as a generality. However they were not always successful; they might have succeeded on the L&L, but as I have said that was not the case in much of London.

 

The appointed body for determining the public rights of way as affecting the Middlesex area towpaths, noted the BTC’s objections as listed in their letter to the Board dated 10 June 1954 –

 

 

BTC objections to RoW classifications.jpg

 

You will note the objection received respecting the lower part of the Grand Union in Brentford in paragraph 8 of the letter, with ROW’s 30, 31 & 32 being listed.

These paths made it into the Definitive Maps & Statements regardless, as you can see from the Revised 1962 version (differing in no way from the earliest versions relating to those listed paths).

 

 

Copy of Revised 1962 definitive map 6 close up Hwy 30..jpg

 

You will also note – as pertinent to this topic – that the footbridges are specifically included as part of the ROW. It is very curious, though, that the northernmost path on this Definitive Map is described as commencing in the centre of Gallows Bridge! How you could/should maintain only the northern half of the bridge is a nicety that escapes me.

 

 

RoW Statement nos. 30 & 31 (2).jpg

RoW Statement nos. 30 & 31 (3).jpg

Edited by NigelMoore
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The right of access to canal footpaths was continually challenged, sometimes unsuccessfully. In 1911 there was a mass trespass involving up to 600 people on the footpath around Foulridge Lower Reservoir on the L&LC. Three of the leaders were taken to court by the land owner and the canal company, who lost their case, with free access being continued. This was twenty years prior to the better-known Kinder Scout mass trespass.

1911 writ.jpg

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7 hours ago, NigelMoore said:

No, a right of way may not necessarily be classified as maintainable at the public expense, and there are many rights of way that may be voluntarily granted or purely private. Those are usually classified as “Permissive Paths”, commonly found on land owned by a public body such as railway companies or the National Trust, but also on private estates which have areas open to the public.

 

It most definitely applies, however, to public footpaths.

Many (most?) public footpaths are not maintainable a public expense.  The typical footpath crossing a farmer's field is a highway/ public right of way but is not maintainable at public expense.

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4 hours ago, Tacet said:

Many (most?) public footpaths are not maintainable a public expense.  The typical footpath crossing a farmer's field is a highway/ public right of way but is not maintainable at public expense.

I refer back to my post #12: “the rule of law whereby a highway is repairable by the inhabitants at large shall apply to all public paths” (s.47(1) of the 1949 Act) later converted to “maintainable at the public expense” (s.38(1) of the 1959 Act).

 

As I have said, not all rights of way are “public paths”, but “all public paths” are covered by the Acts according to the definitions therein.

 

This applies to such paths crossing farmers’ fields, despite being routed over private land. From the Lincolnshire.gov website, for example –

 

The majority of the rights of way network in Lincolnshire crosses land in active agricultural production although they can pass through other sites, for example, industrial sites or private gardens.

 

Farmers and landowners have a key role to play in working with the County Council to keep the access network in good shape.

Most rights of way are maintainable at public expense and so the responsibility to maintain these routes rests with the County Council as the Highway Authority.

 

All farmers and landowners have responsibility for the rights of way crossing their land and for the public using them. Landowners’ responsibilities for rights of way include:

·         Keeping rights of way open and free from obstruction

·         Reinstating cross field paths after ploughing within timescales

·         Not ploughing field edge paths

·         Keeping stiles and gates on rights of way in good repair

·         Keeping paths clear of overhanging or side vegetation (e.g. from hedges and tree limbs)

 

Over the years the County Council’s rights of way teams have built up good working relationships with the farming community.  Officers in each highway division can provide help and advice regarding rights of way and arrange for maintenance work.” 

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The general view if highway authorities is that they are required to maintain the right of way but not the structure it's sitting on, unless they are also owners of the structure. This applies on roads as well, although often a bridge carrying a road will belong to the highway authority.

 

The land underneath the highway, especially in built up areas, usually does not. I worked on a pedestrian scheme in Taunton where we proposed a prohibition of driving order rather than a stopping up order for that reason. Stopping up extinguishes the highway, and it would have reverted to the adjacent land owner. 

 

Many roads in Bath have cellars underneath them, it is the cellar owners responsibility to support the road above.

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One of our local footpaths crosses seeded fields (as do many). Whilst it would be not practicable or possible for the public authority to maintain same, farmers in general do cut crops, or drive a tractor along such paths to 'show the way' such as across field of ridged potatoes. Others, where access has been contested they have been deliberately obstructed, but that's a different issue which has a volatile history since Kinder Scout in 1932 right up to the present day.

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3 hours ago, magpie patrick said:

The general view if highway authorities is that they are required to maintain the right of way but not the structure it's sitting on, unless they are also owners of the structure. This applies on roads as well, although often a bridge carrying a road will belong to the highway authority.

 

The land underneath the highway, especially in built up areas, usually does not. I worked on a pedestrian scheme in Taunton where we proposed a prohibition of driving order rather than a stopping up order for that reason. Stopping up extinguishes the highway, and it would have reverted to the adjacent land owner. 

 

Many roads in Bath have cellars underneath them, it is the cellar owners responsibility to support the road above.

I would venture to suggest that until modern times, and the establishment of highway authorities, the land beneath highways was always in private ownership if not property of the Crown.

 

The classic position in law since establishment of highways authorities and the Highways Acts of 1835 and 1980 was that the "materials and scrapings" of the highway belonged to the authority, while - as you say - the soil beneath remained in the original ownership. The somewhat weird expression used obiter by Lord Denning in 1954 (Tithe Redemption Commissioners v Runcorn UDC) was that the "top two spits" vested in the highway authority (an expression used earlier in an 1896 decision).

 

There has always appeared to be some conflict of opinion over the extent and ramifications of this. A prior decision in 1903 had been that a highway comprised “All the stratum of air above the surface and all the stratum of soil below the surface which in any reasonable sense can be required for the purposes of the street, as street.

 

This more extensive and flexible definition has very recently had some confirmation by the Supreme Court in London Borough of Southwark & another v Transport for London, CA, 5 December 2018. I would have said that this decision settled the matter, but in my perhaps simplicity it reads as a cop-out, in that in dealing with transfer of highways between authorities the “highway” is said to comprise “all that part of the vertical plane relating to a GLA road vested in the relevant council on the operative date but only to the extent that ownership was then vested in the council in its capacity as former highway authority.”

 

It seems to me that it still begs the question of the extent of ownership of the former highway authority, however the principle was that the meaning incorporated the “full zone of ordinary use”, covering various depths of subsoil and airspace height depending on the nature and intensity of use of the road.

 

As to the application of the principle to bridges, the position ought to be even clearer, in that the material of the highway is very visibly apparent, and especially in situations where the bridge crosses a river, the ownership of the riverbed will form no part of the subsoil necessary to the “highway” – except to the extent that supports, if any, are anchored in the riverbed. If the bridge arches over the land without contact, I would have said that no part of the land beneath vested in the highways authority, although the effect of the recent Supreme Court decision would be that the airspace above and below vested in them to the extent necessary for maintenance.

 

Bridges have been an interesting catalyst for litigation over the centuries. The situation was clearer when navigation proprietors cut through ancient fords and other highways; the duty was imposed upon them to maintain for every after such bridges as were needed to maintain the continuity of the pre-existing highway (navigable channel and/or passage across it).

 

In other situations the position was less clear, and it was concern over the possible duty to maintain a bridge within the Manor of Rickmansworth, with attendant serious financial implications for the Lord of the Manor, that led to him casting about for some extra income, eventuating in a series of notorious cases between him and the Grand Junction Canal Company that led to the early demise of the Lord Chancellor of England.

 

The simplest solution these days is for the authority to formally “adopt” bridges (as they may do for more ordinary highways). From that point the ownership becomes irrelevant so far as I can see; they become responsible for the maintenance regardless. As said, where the public right of way has already been determined and defined in the Definitive Maps and Statements under the 1949 Act, inclusive of the bridges, responsibility for maintenance of those vests in the highways authority anyway.

 

As to cellars, a friend of mine in Islington successfully had his cellars under the pavement recorded as his in his title deeds, even though it is (was?) the assumption that all such land owners owned the moiety of the road alongside them without the need to formally record that. Perhaps in light of the recent decision that was a wise move to have made.

Edited by NigelMoore
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Boney’s Bridge according to Fred Thackery, was first built in 1811, to improve on the former fords interrupting the towpath between Osney Lock and Folly Bridge, and rebuilt in 1850 (same year as the railway bridge was built). So it was originally built while the river and towpath was under the jurisdiction of the Thames Navigation Commission (1751 – 1866), who had built Osney Lock in 1790.

 

In this instance therefore, the bridge will have been built under the statutory authority of an Act passed during the reign of George II.

 

Prior to the TNC, an Act of Parliament of 1606 had appointed the Oxford-Burcot Commission, which the TNC succeeded to. Prior to that, the jurisdiction would have been rather laissez faire, the building of such bridges being under control of local landowners and Lords of the Manor (the latter usually sitting in judgment over any local disputes respecting obstruction of highways and of the navigation).

 

More serious obstructions here and elsewhere in the country would have been handled via Regal and Court dictats, relying upon Magna Carta, and later Parliamentary Acts. As you suggested, bridges were still often built - whether small or great - without bothering with the legal niceties. Sometimes they got away with it and other times not, and whether it came to a court battle or not really depended upon whether there was any grievance suffered by parties such as those navigating boats who felt their livelihood was threatened.

 

Even when charges were brought, the courts could decide (as in R v Betts in 1851 re: the railway bridge above Boston Sluice) that no practical obstruction to the navigation was involved. Pragmatism and commercial interests could set a seal of legal approval on bridges even where it strictly ought not to have done.

 

So far as canals were concerned, private riparian owners were often entitled to build their own bridges across them (with the caveat that no navigational obstruction occurred) regardless of the canal proprietors objections. The best known modern example affirming the continued effect of such rights being the 1996 Swan Hills Development case.

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To add to your file on the subject (supposing you have one), while it does not apply to the particular location you are interested in, there is a massive amount of  legislative provision in the Transport Act 1968 regarding maintenance of bridges over inland waterways within the control of BW. Under the terms of that Act the relevant highways authorities took over responsibility for maintenance of these at the public expense, where they carried public highways.

 

Part VIII is the relevant section.

 

The British Waterways Board (Transfer of Functions) Order 2012 amended relevant sections, and the position is that all bridges carrying public highways were to remain the responsibility of the highways authority, even where such bridges are owned by CaRT.

 

Schedule 1 of the Order lists Acts subject to amendment, including the Transport Act 1968 and the Highways Act 1980.

 

Schedule 2 of the Order amends in para.46  the relevant s.116 of the TA 1968, whereby any new bridges constructed after coming into force of the 2012 Order if carrying public highways, will be, where otherwise than by that section CaRT would be responsible for maintenance, a highway maintainable at the public expense. Sections 47-50 elaborate respecting similar other clauses of the TA 1968.

 

Schedule 3 of the Order includes amendments as per para.6 to the Highways Act 1980.

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