Rights of way

Section 34 Land Law (Ireland) Act 1896
If the property and the servient tenement were part of a holding that was vested in the owners by the Land Commission, and having regard to the fact that 89% of land passed under the Land Purchase Acts, the Land Law (Ireland) Act 1896 

Section 34 of that statute reads as follows:

  • A holding vested in a purchaser by a vesting order under this act shall continue to have appurtenant thereto and to be subject to, as the case may be, any previously existing easements, rights, and appurtenances; and any privilege previously in fact enjoyed, whether by permission of the landlord or otherwise, in such manner and for such time that, if the holding had belonged to a different owner from the rest of the estate, it would have been an easement or right, shall be an easement or right within the meaning of this section, and shall be appurtenant to or exerciseable over the holding, as the case may be.


    There is a distinction in Irish law between public road, public and private rights of way. A public right of way is a person’s right of passage along a road or path, even if the road or path is not in public ownership. There are very few registered public rights of way that are not maintained public roads and Boithrin na Lachan is one of them.

      1. It must be used overtime:
      1. 1) ‘nec vi‘(without force),
      1. 2) ‘nec clam‘ (openly – i.e., not in secret)
              3) ‘nec precario‘ (not be based on permission).

    A public right of way may exist over any particular route, but it is not a public road until it is taken in charge by the local authority under the Roads Act 1993.
    In the context of public rights of way, it is important to note that the Local Authority has the function to protect the rights of the public to use public rights of way.
    A public right of way can be created in 3 ways:
    it may arise from use from time immemorial or living memory (i.e. there is no living person who can recall when the user began).
    May be created by legislation.
    it may be established by proof of a long used by the public with an express or implied acceptance by the owner.

    More commonly, a public right of way will come into existence by way of presumed dedication (the long use by the public without interruption or challenge).Presumed dedication can take place under either common law.

    User as of right:

    User as of right means use or enjoyment without force, without secrecy and without the oral or written consent of the servient owner.


    Private right of way:

    A private right of way is the right to enter onto private lands, but only for the purposes of gaining access to or exiting from another piece of land. It is typically an arrangement between neighbours.

    Easements v Rights of way:

    Easements are non-possessory interests in real property. More simply, an easement is the right to use another’s property for a specific purpose. Rights-of-way are easements that specifically grant the holder the right to travel over another’s property.  Unlike a public right of way, easements are generally revocable unless otherwise stated in the easement grant.

    Therefore, all rights-of-way are easements, but not all easements are rights-of-way.