Once you've found a forgotten right of way you'll need to gather evidence to prove it. Without evidence you won't be able to get the right of way recorded on the definitive map.
Your evidence must not only show that a right of way exists; it must also indicate which type of right of way it is – a footpath or a bridleway, for example. You can use documentary or user evidence, or both. Don't forget to make use of our resources and advice if you get stuck!
Proving the existence of a forgotten path: documentary evidence
Much documentary evidence is open to interpretation and may well be vigorously contested. Different types of evidence carry different weight – some evidence is deemed stronger than others. It is usually the case that several pieces of documentary evidence will need to be found in each case – a single document will rarely stand as conclusive proof in its own right.
There is a wide range of documents which can contain the kind of evidence you need, but some are of much more importance than others.The following list is not exhaustive, but probably includes all those most likely to be of use. Be aware, however, that, for various reasons, you will rarely find all of them for any one path or area.
Containing potentially very good evidence – sometimes conclusive
- Highway orders
- Inclosure Awards and maps
(there is currently a difficult legal issue about the evidence relating to footpaths and bridleways awarded by inclosure commissioners) - Highway maintenance records
- Deposited maps and plans
Often containing useful supporting evidence
- Tithe maps and apportionment schedules
- Defence legislation orders
- Road maps
- Records associated with the Finance Act of 1910
- Local authority records
- Estate and other private maps
- Published Ordnance Survey maps and books
- Other Ordnance Survey documentation
Items which can contain evidence of varying strength
- Glebe Terriers
- Manorial records
- Records of private estates
- Aerial photographs
Most of these will be kept in your local/county record office or by the surveying authority itself, but original tithe maps, much of the 1910 Act documentation and a lot of the OS material are held in the National Archives at Kew.
Your local Ramblers’ Association group or Area may have useful documents too.
More guidance about researching documents can be found here.
In addition to using historic documentary evidence to show that a right of way came into existence in the past, it is also possible to claim a route on the basis of public use. The law assumes that if the public has used a particular route 'as of right' for a period of at least twenty years (and in some circumstances for lesser periods), then the landowner intended to dedicate the way for public use.
Find out more about claiming a right of way based on user evidence here.
