Right of Way Question

[muldonach]

Good evening.

 

I hope some general views can be obtained here as I have a taxing issue that as a small woodland owner, I am having issues with.

 

Neighbour has a right of way across one side of my wood and has recently expressed a view that he wants to extract a load of oak and the only way of getting it from his property to wherever is by using the ROW.

 

A general discussion took place and I was gleefully told that I should not worry, all the work will be undertaken by my neighbour and that some sort of arrangement can occur. All informal at present but a few issues arise. I am sorry to be somewhat lengthy here.

 

The ROW has not been used for many many years.

 

In scotland at least a servitude right of access can prescribe if not used for 21 years - it would be up to your neighbour to prove he had used it. However it ain't as simple as that - if your neighbour used to have a right of way and there really is no alternative then it cannot prescribe through non usage. If however he has an alternative then he may be forced to use it.

 

The land between point one and two of the ROW is very populated with some nice trees that may get in the way of his activity.

The land is quite wet in places, I was informed that i need not worry as they would simply put brush down to avoid any damage.

 

If he has a valid right to use the ROW he is also entitled to maintain it - i.e. remove any trees on it

 

I was also told that I could get a few nice trees out of it for firewood ( I am not naive here).

 

The trees on the ROW belong to you irrespective of the fact that he may be entitled to remove them

 

How should I approach discussions with my neighbour about use of the ROW as it will need a lot of work on and also the character of this part of the wood will significantly change? I am worried that he is trying to hood wink me here. I can of course be quite obstinate of course!

Any advice would be greatly appreciated.

 

Establish on what grounds he considers himself to have a ROW and check its validity. Don't rush to court or to solicitors - it gets expensive real quick

 

Cheers

mac

[openspaceman]

 

If he has a valid right to use the ROW he is also entitled to maintain it - i.e. remove any trees on it

 

 

 

 

Maybe but has he a right of way for a vehicle? Post 87 we had the case where a wood was blown and it was last harvested in WW1 (ring count and hawser marks on standing trees) there was some debate with adjacent land owner whose land the track ran over whether vehicles had previously extracted produce as opposed to horses.

 

On a similar vein the FC owned a farm with house and buildings, they had planted up all the fields and sold the farmhouse and buildings with about 10 acres. They retained a right of access over a couple of hundred metres of drive. We bought the thinnings but the new owner prevented access for lorries because he had built a concrete road which he said would only take a 10 tonne vehicle, FC backed down and we had to cross the road with agri based forwarder and slog uphill through the woods.

[renewablejohn]

On our enclosure act going back to 1797 the ROW is for horse and carriage which covers a horseless carriage ie motor vehicle. Council have tried to make it into a bridalway which would exclude vehicles but have failed.

Edited September 18, 2013 by renewablejohn