Rights of way do not fall under the denomination of Natural Rights. Rights of way are never given by law to owners of land (a special characteristic of a natural right), but they are discontinuous easements, and may be acquired in the same ways as other easements are acquired. As to the precise nature of a right of way, there is no difference in principle between a public right of way and a private right of way, as it is in either case the mere right of passing over the soil of another person uninterruptedly, though in the one case the right is for every individual to pass, while in the other it is for a particular person only.
The right is not a right to the land, not to any corporeal interest in the land, and the soil is in no way the property of the owner of the right. From this it follows that, so long as the owner of the right of way is not prevented from enjoying his easement, he has no right to prevent the land owner doing anything he pleases with the soil; neither has he any right to complain of or interfere with any other person, whatever he may be doing, even though it may be an unlawful act or a trespass as against the owner of the soil. The right of way may be created by express grant, or by immemorial custom or necessity.1)
As to the nature of rights of way, they may be general in their character, or, in other words, usable for all purposes and at all times.2), or the right to use them may be limited to particular purposes, e.g., for sweepers3), or to certain times.4) Thus, a right of way may be limited to agricultural purposes only; and the existence of such a right is not itself sufficient evidence of a general right for all purposes; as to carry lime or stone from a newly opened quarry.5) or it may be limited to the purpose of driving cattle6), or carriages7), or of the passage of boats8) or it may be a horse way or merely a way for foot passengers9); or the right of user may be limited to such times as a gate is open10), or to certain hours of the day, or when the crops are off the land. But the extent of the right must always depend upon the words of the instrument creating the right, if any written instrument exist, or it must be measured by the accustomed user, if the right has been gained by prescription.
A right of way by sufferance over another's land cannot create a permanent right.11) A right of way is ordinarily a right of passing, and not a general right to pass from one point to another point.12)
By the Common law of England there are three distinct classes of rights of way and other similar rights.
These three classes of rights exist in England as well as in India.13)
A person commits a wrong who disturbs the enjoyment of a right of way by blocking it up permanently or temporarily, or by otherwise preventing the free use of it.
With regard to first and second classes of rights of way they do not require a permanent obstruction to give rise to a right of action. Thus, the padlocking of a gate is sufficient.14) Permitting carts or waggons to remain stationary on the road in the course of loading and unloading, so as to obstruct the passage over the road, will give rise to an action.15) In the case of an obstruction to a private right of way proof of special damage is not material.16)
As regards the third class it may be noted that no action will lie for obstruction to a public way without showing any particular or special inconvenience or injury beyond that suffered by any member of the public.17) Such special damage must differ not merely in degree but in kind from that sustained by the rest of the public.18)