This document is NOT a Pittecroft Trust document, but it addresses an issue that is frequently misunderstood by landholders, user groups and highway authorities, so the Trust felt it was worthy of airing here. Comments are very welcome.

Paths, spits, & toilets
or Who Actually Owns our Public Paths?  Why 'spits'? Why toilets?

Many people, including many path users, believe that public paths belong to the landholders whose land they pass over. Are they right? The National Farmers' Union, the Country Landowners' Association, and the Countryside Commission, in an early edition of their booklet “Managing Public Access”  said

“In simple terms, the surface of a highway, whether a public right of way or a road, is owned by the Highway Authority rather than the owner of the land over which it passes.”

Later editions, unsurprisingly, dropped this paragraph

So who does own it? And what is this 'surface'? Is it just a thin top layer? The law says: "... every highway maintainable at the public expense together with the materials and scrapings of it, vests in the.... highway authority...." [Highways Act 1980 s263]  Many people know that footpaths are highways in law, but what exactly does ‘vest in’ mean and what exactly is included in ‘highway’?

…'vests in'…?
 The legally well respected book Halsbury's Statutes says 'vests in' means the Highway Authority owns the paths in fee simple whilst it remains a public highway. But this ownership reverts to the ‘landholder’ if the route ceases to be a public highway, for example if it is lawfully closed by a diversion order.
This 'vesting' is more than leasehold, though that too is a form of ownership. A lease is only for an agreed time span, whereas a public way, once created, continues forever unless legally stopped up: 'once a highway, always a highway'. [Dawes v Hawkins (1860)].
The landholder of a public path does retain a kind of ownership, but can only exercise it to the extent that it doesn’t interfere with highway rights. For example the landholder’s animals can graze it.
What does the public–you and me–own? Just the right to use the path but nothing more tangible.

…highway…?
Well in Finchley Electric Lighting Co. v. Finchley Urban Council [1903] the judge, Collins M.R., defined it in these terms:  
'All the stratum of air above the surface and all the stratum of soil below the surface which in any reasonable sense can be required for the purposes of the street, as street'.

Lord Denning in an ‘obiter’ (statement not forming part of the formal judgement) in Tithe Redemption Commissioners V. Runcorn U D C said that probably the 'top two spits' of the land were vested, spits apparently meaning spade depths. Collins M.R.’s view is clearly more rational, allowing the whole of the depth of a signpost to be within the highway as well as the necessary airspace above for both signposts and path users.

What isn't included in the highway?
In Tunbridge Wells Corporation v. Baird [1896] the Corporation tried to build public toilets under the street, on the basis it seems of their ownership of the highway. The court decided the ownership was only such property as is necessary for the control, protection and maintenance of the street as a highway for public use. This prevented them from building these subterranean toilets. It is important to note that neither the Highways Act nor the three cases above support the view held by some that the ownership is just the 'right' or is just the surface in the sense of a thin notional layer. Historically only the stones or setts or other materials of value were vested, the so called 'materials and scrapings' (eg Highways Act 1835). But from the Public Health Act of 1875 onwards at least, a string of statutes vested not only those materials and scrapings but the highway itself.

This ownership gives powers that follow the freehold, for example highway authorities can sue for trespass (Wiltshire CC V. Frazer [1984]). They also can take direct action under the common law which can sometimes be the quickest and easiest approach to obstructions.

Why does ownership matter?

If the local 'landowners' understood that they do not own the paths, or at least that any ownership is subservient to the highway authority’s ownership, then they might not feel such a sense of personal possession of these little public highways. And then they might treat them more like they treat the public roads which cross their holdings, and be less concerned at public use and less likely to try to move or to disturb these little ways.
 

If Highway Authority officers fully understood that the paths are their official property then that would help to direct their actions when for example local 'landowners' plough up their paths or obstruct them. It is the Authority’s property being messed with, it does not require even-handedness between the underlying landholder and the public.

And in certain cases the Path Officers can act at once under common law as owners of the paths without waiting for the sometimes tediously lengthy and time consuming statutory processes. Senior management at at least one Home Counties Highway Authority accept this in principle but have seemed reluctant to act, even in clear-cut cases (eg A footpath, part of the London Loop, complete pre Christmas blockage some years ago).

 Acknowledgement is made to Highways and sub-soil ownership and Existence and vesting of highways by Professor Keith Davies (Rights of way Law Review 2.1) And to Halsbury's Statutes. And of course to the Blue Book.
Copyright, but may be freely reproduced if done in full.