Common Sources of Documentary Evidence
Evidence is "...any map, plan or history of the locality or other relevant document...justified by the circumstances, including the antiquity of the tendered document, the status of the person by whom and the purpose for which it was made or compiled, and the custody in which it has been kept and from which it is produced." (Highways Act 1980 s32).
This is a far-reaching definition; however, although any case may be made on a piece of evidence relevant specifically to it, all cases should have caused investigation of a series of common sources. Individual documents may have greater weight than others but all evidence in a case is considered cumulatively to decide the 'balance of probabilities' indicating the subsistence of a right of way.
Evidence resulting from statute and parliamentary or official regulation tends to be given higher value because a legal procedure was followed in its preparation which was open to public knowledge and documents have been held in the public domain. This includes records of Inclosure, Tithe and Finance Act, and turnpike, railway and canal schemes (whether or not they were built). Quarter Sessions records were also closely regulated and Highway Board minutes were prepared by a public body.
Ordnance Survey maps are given greater weight than private maps because of the governmental control. The value of private maps will vary depending on the reason why the map was made, the reputation of the surveyor, whether it was produced as a result of a new survey or re-published from an earlier survey.
Reference in documents with reasonable provenance such as deeds and sale particulars, personal journals, estate records and accounts, published travel guides or tales, newspaper articles and so on can be very strong evidence – much depends on the provenance.
Inclosure (or enclosure) was the process of converting land with communal rights or ownership into that with sole ownership or control (severalty).
There were many reasons for inclosure, varying over time, region and even community so it is not possible to generalise as to why it was undertaken. In some places it may have been in response to escalating grain prices, which financed the inclosure process and made higher grain production possible. In others, it seems to have been a means of ridding the land of the burden of tithe, where land was made over to one owner in return for abolition of tithe over other land. There were also many arguments for the increased productivity of land; bringing waste land into use; controlling abuse of land by indiscriminate mining or quarrying and protecting mineral development rights; shortage of controlled pasture; achieving effective land drainage; and so on.
Whatever the reason for undertaking it, inclosure had a massive social impact on society as it took away the capacity for many people to subsist from their own land, forcing them into employment for the new inclosure landholder. It also had a dramatic effect on common rights, many of which were taken away by the inclosure process, again a big loss to the commoner who could no longer use the common for grazing or foraging stock, for fuel, animal bedding, or fish.
Inclosure was achieved through either Parliamentary inclosures under private acts of parliament or one of the General Inclosure Acts and through formal written agreements. The latter are rarely helpful in rights of way research terms as often no record exists, particularly with a map, unless one was made by the new landowner to record his new holding.
The chronology of inclosure is also difficult to define. In the Middle Ages, most of England and Wales was under communal control, with open fields, small common pastures or meadows and common moors or downs. A significant amount of inclosure occurred in the late Middle Ages but there is little map evidence or records of use to highway research. This continued during the sixteenth and seventeenth centuries though there is no agreement as to the extent of land affected. Inclosure in the eighteenth and nineteenth centuries became more complex. Much of it still took place without Acts of Parliament, through agreement, and method of inclosure still varied hugely from place to place.
It may be realised, then, that inclosure was a varied process in itself and not necessarily consistent, even under parliamentary inclosure. The modern mind sees a map as an essential component of such a radical change to property boundaries, but mapping was very skilled and expensive, adding considerably to the already high cost of inclosure, therefore many inclosures took place without maps. The written definition was sufficient to local and current landowners. However, maps did become more common after about 1760 and for parliamentary inclosure they became usual. By the 1801 General Inclosure Act, a map had become standard and the Act stated that the map should be verified although earlier commissioners and surveyors had adopted signing the maps to signify their authenticity before that Act. Such inclosure maps have greater value as evidence today. However, it must be noted that there accuracy varies significantly - some surveyors were meticulous, others quite evidently estimated.
From the late eighteenth century, it became the practice to deposit a copy of the award and map with the Clerk of the County, or sometimes the Courts of Record in London, and in the chest of each parish affected. After 1800, more landowners also had a copy made. So it can be seen that a number of maps for one inclosure may survive. In later maps, it is not uncommon to find that previously enclosed land is not shown, except perhaps with the name of its owner.
The 1845 General Inclosure Act had a significant effect on mapping as it required a certain standard in order for a map to be sealed as accurate by the commissioners. Maps were to be at a scale of one inch to three chains (1:2376) so that the new allotments could be reconstructed once any previous physical boundaries had been removed. However, this was very costly and was reduced in practice to a good 'plain working plan'.
Later maps may be coloured, usually in shades of grey, occasionally with red, mostly to make reading the map easier or sometimes to provide more information, such as whether or not a building was inhabited. Standard colouration began with tithe maps after 1836 and was often adopted: sienna or brown infill for roads; blue infill for water; red, pink or grey for buildings. Colouration of roads was an enhancement; it has no significance in terms of the public nature of the road. New roads and field boundaries may be coloured in red though this may not be a common local technique in some areas.
Footpaths and bridleways are shown on about 50% of inclosure maps. They are less likely to be shown in areas of old-enclosure, but their omission is not conclusive evidence that they did not exist.
The fact that many inclosure award maps do not survive can make identification of specific routes difficult. Doing so without doubt will probably depend on whether the topographical description is sufficient to cross-reference with an Ordnance Survey map post-dating the award by sufficient time for the new highways to have become physically defined.
The value of an award in terms of evidence of a highway varies depending on the award and the circumstances under which it was made. The more controlled the environment, the greater the value. That is, an award by agreement has lower value than one under the last General Act because it did not follow any due procedure and was subject to a much lesser degree of official or public scrutiny and may not have been retained in the public domain.
The Tithe Act of 1836, amended in 1837, standardised tithes and rent-charges, often into a one-off payment. Tithe commissioners were appointed by Parliament and operated in regions, employing their own valuers and assistants. Tithe surveys were undertaken with great care and the process was scrutinised by tithe owners, tithe payers and parliament, all of whom had a major interest in the outcome. The maps therefore tend to be accurate and have been held in the public domain, which gives them greater weight as evidence than private mapping. Each tithe map will have plot numbers associated with the numbers in the award.
Tithe maps were commissioned by landowners for the purpose and are designated first or second class. This reflects their scale, not their quality. The scale, the extent of topographic detail and colour vary greatly between maps, sometimes even between different copies of maps for the same holding. Most original maps are held at the National Archives, with many local record offices holding diocesan copies. Their purpose was to accurately show the extent of titheable land so boundaries and roads are included only where they may be significant in this respect. If a road is shown, then it is unlikely that it did not physically exist at the time, but its omission may only mean that it was not a meaningful tithe boundary.
There may be no distinction between public and private ways or depiction of status. Annotation of a road to another settlement is indicative of public status but not of its level of use. Colouration of a 'road' is not significant in terms of status; many surveyors used colour on roads and watercourses to improve the ease with which the map could be read.
Roads may not be apportioned tithe but this is not an indication of public status, only that, like barren land, beaches or cliffs, they were not considered liable to tithe.
If a road is numbered on the map and listed in the public section of the award, it can be assumed that it was part of the parish highway system, but this is not exclusive. If the road is not numbered but open to the rest of the numbered system, it is still reasonable evidence that it was public.
Evidence of a road on a tithe map has high value as the process was open, legal and subject to scrutiny by opposing bodies, all of whom had an interest. The documentation has also been kept in the public domain.
Finance Act 1910
The Finance Act 1910 caused a valuation of every property in England and Wales in order to tax any increase in value when it changed hands. The records are relevant to highways in that vehicular roads were commonly excluded from adjacent hereditaments because the Act provided that "No duty ... shall be charged in respect of any land ... held on or behalf of a rating authority." a highway authority being a rating authority. In addition, abatements (discounts) could be requested for public rights of way because they would diminish the gross value of the land when sold.
Valuation Books listed all the properties in the Parish Rate Book and each property was given an assessment or hereditament number relating to the map on which parcels were recorded. The map was the Increment Value Duty Plan, using an Ordnance Survey map. Details from the Valuation Book were copied onto a form and sent to each property owner. The Valuer inspected each property and made any notes, including sketch plans if appropriate, in the Field Book.
A provisional valuation from the Field Book was sent to the landowner with an opportunity to appeal. The Field Books are held at Kew, with the Valuation Books mostly locally in Public Record Offices. Many Plans are lost and all that remain are at Kew. The National Archives catalogue lists the Plans held. It is very important to be aware that there are differences between the Field Book and Valuation Book so always check both records.
If an abatement exists for a public right of way where there is more than one in the parcel, it may not possible to tell how the abatement was apportioned as a distinction was not always made. Many landowners wanted to record public rights of way to receive tax relief, but some considered the additional tax liability worthwhile rather than declaring the rights of way, so lack of record of a right of way may not negate its existence. If a right is recorded, it is conclusive evidence for its existence as it was included with the full knowledge of the landowner and criminal action could ensue from falsely declaring a right of way.
Quarter Sessions were Court sessions held four times a year in each County and County Borough, presided over by a Justice of the Peace. They met quarterly at Epiphany, Easter, Midsummer and Michaelmas from 1361 and dealt with both law and order and the administrative tasks that were later carried out by local government. Few of the early records survive, most being from the 16th or 17th centuries.
From 1888 elected County Councils took over the administrative duties of the courts, with Quarter Sessions retaining their judicial and licensing powers. The Quarter Sessions continued as criminal courts until 1971 when the County Court judicial system was implemented.
Quarter Sessions records will vary widely between Records Offices but commonly will be found catalogued in three sections: as a Court; as an administrative body; other roles such as enrolment and licensing; with many subdivisions in each. In the first section, useful highway evidence may arise from reports of crime, such as robbery or murder but also collisions, particularly if a person died or were seriously injured. In the second section, evidence may be found in relation to highway and bridge repair, certificates of repair, contracts, accounts and minutes. The last section may record sales of land and deeds, Inclosure Acts and awards; and turnpike trusts.
Unfortunately, many Quarter Session records are difficult to search and it is likely to be worthwhile contracting a specialist for the search. Some counties have usefully had a search made of the Sessions for all references to highway matters, which is then much easier to cross-reference.
As with many old documents, it takes time to become familiar with the language, layout and style before searching can become swift and accurate.
Railway and Canal Plans
In the eighteenth and nineteenth centuries, infrastructure was greatly increased by the provision of turnpike roads, railways and canals. For a new road, railway or canal, other than by agreement of every single landowner, a Private Act of Parliament was required to compulsorily acquire the land for that purpose. Increasingly detailed plans were required to be submitted with the private bills to establish new routes. The plans, as well as showing landownership and whether or not they consented or dissented, show crossings of highways.
This was important because provision for the highway would be necessary as part of the canal or rail scheme.
A large number of schemes never came to fruition so this source of evidence is always worth checking, not only where a claimed right of way crosses a disused railway or canal. The full records are held in the House of Lords' Record Office although after 1838 duplicate plans had to be deposited with the Clerk of the Peace and are in local Public Record Offices. There are many also deposited before that date.
The omission of a highway is insufficient evidence to say that it did not exist as errors did occur but the submission had to pass fairly rigorous Parliamentary tests so inclusion of a highway is good evidence that it existed, particularly as its existence was against the interests of the developer.
Council and Parish Council Minutes
Minutes of meetings and discussions, particularly on matters of maintenance or obstruction, can be enlightening and sound evidence when sufficient detail is given to identify the route in question. Finding references can be time-consuming but worthwhile if there is something on the route to suggest that a minuted incident may have occurred - a substantial bridge that will have required maintenance at some time, for example. 'Highway Boards' pre-date current county or unitary authorities.
The Ordnance Survey was founded in 1791 in response to military needs for mapping. Dates of surveys and publications vary from county to county but roughly the first epoch (First Series) will have been mid-1800s, and second epoch (Second Series) early 1900s. The First Series 6" is very useful for identifying tracks and roads shown on earlier maps. Significantly fewer tracks appear on later editions. The First Series 25" is excellent for detail; some are hand-coloured, though this is not necessarily of significance for rights of way. Fields and roads are numbered and keyed to a separate book of reference with common descriptions of public road, parish road etc. These Object Name Books are held at Kew and can be very useful for identifying highways.
The Ordnance Survey Act 1841 required the Ordnance Survey to record public administrative boundaries using documents held by the Clerk of the Peace and a physical survey by parish 'meresmen' who walked the boundary and noted landmarks along it. A sketch map and book of remarks were produced. The map was advertised and available to public inspection. Where the boundary follows or crosses a highway, this is often noted in the Boundary Remarks Book. The records (held at The National Archives) include a Journal of Inspection which details the advertisement and public inspection of the boundary book. The majority of comments are "I agree with the boundaries as shown." but there are occasional comments on repair of a particular highway. A description of a bridge may be helpful - a plank bridge might be adequate for a footpath but a stone, brick or arched bridge indicates horse or vehicular use that may be public. Study of OS records and comparison with recorded highways indicates strongly that annotation of a highway as "to xxx" or "from yyy" is consistent with public status.
Later maps will also be useful, sometimes showing different detail - it is not uncommon for critical items like Guide Post or Milestone to appear on one edition and not another.
Also of value are the manuscript maps, in the Map Library of the British Library, produced by the OS surveyors between 1789 and 1840. These are drawings at a larger scale on which the maps were based; they may pre-date the map by many years and may have more detail
Depiction of a route on the Ordnance Survey is good evidence that the way physically existed at the time of the survey because the instructions to surveyors were specific in this requirement, but physical existence is not an indication of public status. A named route or description as public or parish road in the Object Name book is much stronger evidence of public status. The fact that the survey and mapping was undertaken through the Crown and documents have remained in public domain adds weight to the value as evidence.
County maps produced privately vary hugely in their accuracy and value. Many originals or plates were purchased and printed under other names without revision. The provenance of the map is therefore important. Bear in mind the reason for their production - this is often documented - and the reputation of the mapmaker. They can be invaluable but be wary and check the background. It is very important to remember the limitations of both survey and printing techniques in use at the time. There will be inaccuracies of scale and depiction of features compared with the later Ordnance Survey since in no way were the surveys undertaken with the same resources or skills. In comparison with an OS map, they should be treated as a guide or sketch.
Estate maps may be extremely useful, whatever the reason for their production. Depiction of highways may be taken as reasonable evidence of belief of public rights of way but lack of their depiction is not necessarily evidence to the contrary. Some estate maps were produced by reputable mapmakers using survey information from smaller scale maps. If estate maps are held in public archives, ownership may still rest with the estate so permission may be necessary to produce the map in evidence at an inquiry or in court.
Title Deeds and Conveyances
Deeds are daunting documents but can provide excellent evidence so it is worth becoming familiar with them and their language. That task is made easier by the fact that the format and words used have changed little since mediaeval times. It is possible with practice to quickly distinguish between the essential elements and the rest of the verbiage by recognising forms of words or clauses in their context. As with all old documents, being able to read or recognise key phrases comes with familiarity with styles of both script and language.
Deeds are divided into sections: the introduction; premises; recitals, testatum; parcels; habendum et tenendum; covenants, conditions and provisos; testimonium; margin and stamp duty; endorsements. Rights of way and easements are likely to be detailed as part of each parcel description or en bloc at the end of the parcel section. Easements and other third party or public rights became more important in the late nineteenth century, and therefore more detailed. Key words and phrases to look for are: right; privilege; subject to; together with; except and reserving; save always and excepted.
Sale Particulars, Catalogues
Auction sale particulars can be useful. They are most likely to crop up in the late nineteenth century, sometimes earlier for large estates, and may refer to rights of way in varying detail. They may occur in bundles of deeds as part of title but also occur singly within archives of agents that dealt with the sale, or even in local history collections if the property was important locally. Purchasers may have kept a copy with their documents. The descriptions are straightforward and sometimes include details of abutting land as well. The conditions of sale will include a root of title which may suggest the location of deeds. They do not normally specify rights of way, simply stating that the land is sold subject to all subsisting rights of way.
Reference may be made to highways in newspaper reports, particularly if a crime or accident occurred on a route. This can have great weight, particularly if the route is a named one and the incident reported makes it clear that it was a public highway.
Where to Find Evidence
National sources are the National Archives (Public Records Office) at Kew, the British Library, London and Bodleian Library, Oxford. The two libraries have copies of all published Ordnance Survey maps, which is useful if any are unavailable locally.
Royal Commission of Historical Manuscripts, Quality House, Quality Court, Chancery Lane, London, WC2A 1HP has lists and indexes of material in local record offices and the most important collections of local manuscripts. It may also have information on locations of manorial records and the identities of Lords of the Manor.
Local history libraries have maps, pamphlets, guides, newspapers, postcards, articles, personal accounts or diaries and document collections. They may be administered by the local library service or the public record office.
University libraries frequently have material of importance as in many cases they may have begun collections before the public record offices existed. Some are strictly subject based but many are general. For example, there are instances where inclosure awards are held by university libraries and not by the local record office.
In April 2003, the National Archives brought together the Public Record Office and the Historical Manuscripts Commission.
The Access to Archives (A2A) database contains catalogues of archives held across England and dating from the 900s to the present day.
The Archives Hub provides a single point of access to descriptions of archives held in UK universities and colleges. At present these are primarily at collection-level, although where possible they are linked to complete catalogue descriptions. The Archives Hub forms one part of the UK's National Archives Network, alongside related networking projects.
The North West Regional Archive Council is an overview and details of organisations in north-western England that care for archives and allow public access. Includes local authorities, businesses, educational, estate and private bodies.
The National Library of Scotland has a digital resource of the 1945-1947 Ordnance Survey maps of England and Wales as well as many maps covering Scotland. The OS series is viewable online by sheet or as a seamless layer on Google maps base.
Discovering Lost Ways Project
The Discovering Lost Ways project was begun by Natural England following the Countryside and Rights of Way Act 2000 and was intended to research all unrecorded rights with a view to adding them to the definitive map before the cut-off date of 2026 for adding rights that was created by the Act. The project foundered in 2008 and was abandoned after review. A final report was produced following the review at the close of the project.
As part of the research into the status and value of various documents, a number of reports termed 'research standards' were produced.