The recent court of appeal case of Dewan v Lewis is a useful reminder that a right acquired by user over time is determined by the nature of that user, and not by the use of the land which benefits from the right of way.
Lewis, a farmer, used his land for agricultural purposes, including the grazing of cattle. The land had the benefit of a right of way along a road, which had been acquired by prescription (ie use of that road for more than 20 years). At first instance, the court held that Lewis had established a "right of way at all times for agricultural purposes with or without animals and with or without vehicles".
The owners of the road appealed, objected to the fact that a general right of way for agricultural purposes would include the driving of cattle along the road, when in fact the road had not been used for that particular agricultural purpose.
It was established that during the 20 years of use, the road had been used by pedestrians, vehicles and horses, but not for driving stock. In fact, there was evidence that the cattle had been taken on and off Lewis's land via a different route altogether.
The Court of Appeal held that the right of way did not extend to a right to drive stock. The court noted that the owner of any land subject to such a right of way should not be burdened with a use more onerous than that which had been accepted by the owner over the passage of time.
It is an important reminder that a landowner should check carefully the wording of any right being claimed against them due to long user. It may be that the applicant is attempting to include a wider right than they the one that they have actually been exercising.