Unnecessary Roads. We have been discussing the improper registration of rights of way in
Let us take the case of Mr D’s land first. I invite you to study the following plan.
My property is to the east, or far right, Parcel 293. Daryl Richardson, known to everyone as “Mr D” is now deceased. His land lay to the immediate west of Parcel 293. It used to be registered as Parcel 7. My land derived originally from the same Parcel as Parcels 20, 186, 187 and 202, which lie to the south of the rights of way painted blue and red. Let us call it the Owen Estate. Mr D, as the owner of Parcel 7, and the administrator of the Owen Estate, agreed on a mutual right of way running up the common boundary. It was a 10 ft right of way. We have seen in an earlier article that this was the minimum width for demanded by the Chief Surveyor at the time. The Administrator gave Mr D a five foot right of way up the boundary of the Owen Estate. Mr D gave the Owen Estate a reciprocal right over his land. This mutual right of way is shown painted red on the plan above. We registered the grants of easement in the Land Registry.
Years passed. The right of way worked well. One of Mr D’s sons started building his home on what is called “
What to me is extraordinary is that no effort was made by anyone to speak to the registered owners of the Owen Estate about widening the mutual right of way. There are only two of them. One of them lives on the land and the other is my mother who lives at Old Ta. The surveyor did not do it, though he is an old friend. The Executor was not told that it might be a good idea. He is my cousin, David Carty. He would have had no difficulty in making the approach, if it had been suggested to him. The surveyor simply made a 26 ft and a 21 ft provision for access out of Mr D’s land. End of discussion.
What is so irregular about this new road? You will have read the two previous articles. We discussed the law and proper practice on public and private rights of way.
First, this right of way is not registered as a public road. So, I cannot use it as of right along with other members of the public.
Second, it is not the subject of mutual easements of right of way. I cannot use it as a private right of way. It is called a “right of way” on the map. Just seeing it on the map does not give me a right to use it. I am perfectly content with the present 10 ft right of way. But, would it not have been better for the heirs of Mr D’s estate if they had negotiated with the two owners of the Owen Estate to share burden of the right of way? They would not have lost so much land.
Thirdly, the new right of way has been made into a separate parcel, Parcel 267. It is completely and fundamentally wrong to create a separate Parcel of land to constitute a right of way. A right of way cannot be a parcel of land. It is a right enjoyed by one landowner over the land of another landowner. The only conclusion I can come to is that it might be a device to block off the land so that one day the government can acquire it freely, without having to pay anybody for taking it for the public use. What is wrong with that? The normal practice all over the world is for the public to pay private landowners for the right to pass over their land. This is accomplished by government paying the landowner for the public right of way. It is only fair.
Finally, what was the use of starting the new roadway to the north of the existing right of way? Just to make a straight line? The existing roadway passed over the land designated and left by the Owens for the purpose of gaining access to the lands to the east. The present owner could have been approached about widening the present roadway from 10 feet to 26 feet. He is a very reasonable person. There is no way that I can see him refusing such a sensible provision. The narrow piece of land to the west of Parcel 186 is not capable of being used for any other purpose than the road for which it was intended. In my view it was completely unnecessary to have taken 26 feet out of the south of Mr D’s garden, while leaving the present 10 ft road just a few dozen feet away!
The surveyors tell me that there is nothing they can do. The survey will not be approved by the LDCC if there is no access. The LDCC has told them to make provision for access out of the land they are surveying. Others tell me that the LDCC has done no such thing. The LDCC has mandated that there must be access when a sub-division is being made. They do not care how it is done. They would expect the surveyors to assist their clients to negotiate with the neighbours and get them to agree on what is fair to all, a mutual right of way along their joint boundaries. If they cannot agree on this in a reasonable time, then the road provision might have to come out of one person’s land. But, that would not be the preference of the LDCC.
I don’t know. Well, what do you make of it?