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November 23, 2014 / 1 Kislev, 5775
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Public Passage


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Pleasantville was a quiet suburban town with large properties and curving roads that wound around them. Mr. Feder lived just behind the local shul. Since the road wound around his property, people coming to shul on Shabbos would often take a shortcut through his property to walk to shul. The treaded area of earth marked the place where people made their way weekly. The through traffic did not bother Mr. Feder, as his house was on the other end of the property. He never made a fuss about it, but had never officially sanctioned this public shortcut.

One day Mr. Feder decided to build a picket fence around his property. The plan was designed with an entrance on the side of his property adjacent to the shul, so that he could go directly there. It enclosed the remainder of the property, though, including the place where people would cut through from the street.

As the posts were being put in place, the president of the shul asked Mr. Feder: “Would you consider leaving an entrance near the street where the shortcut to the shul is?”

“No, I’d like to complete the fence,” replied Mr. Feder. “Once I’m investing in the fence I’d like to do it properly, and that side faces the street.”

“But people have been accustomed for years to cut through your property,” said the president. “For some people, circling around your property means an extra seven minutes walking along the road.”

“It’s my land; I can do what I want,” responded Mr. Feder. “I’ve been nice about it until now, but that doesn’t mean I owe the public anything.”

The following day, the shul president called Mr. Feder. “I did a little research and discovered something interesting,” he said. “The Gemara (B.B. 100a) teaches that a person may not ruin a pathway that the public possessed. This is phrased: ‘Meitzar shehecheziku bo rabim – asur l’kalkelo.’ Since you’ve allowed the public to posses the pathway for the past few years, you’re not allowed to ruin it now.”

“Who says that rule applies here?” asked Mr. Feder. “Maybe it’s only when the public officially possessed the path? I never gave people formal rights to walk through the property. At most a handful of people actually asked me whether it was OK. The rest simply walked! If anything, they were trespassing all these years, and it’s my legal right to put an end to it.”

“But you saw them do it and never protested in any way, so you acquiesced,” argued the president. “If you don’t agree to leave an entrance for the path, I’d like to bring the case before Rabbi Dayan.”

The president had Mr. Feder summoned to Rabbi Dayan’s bet din, with a claim that he be restrained from fencing the public passageway.

After a brief deliberation, Rabbi Dayan issued the ruling: “The members of the shul cannot restrain Mr. Feder from completing his fence.”

“Why is that?” asked the president.

“The law of meitzar shehecheziku bo rabim is explicit in the Gemara and codified in the Shulchan Aruch [C.M. 377:1; 417:2],” explained Rabbi Dayan, “but there are numerous limitations on the practical application of this halacha.”

“First, there is a dispute between the Rishonim on whether tacit acquiescence through silence suffices or explicit permission of the owner is required.

“Second, there is a dispute about whether it suffices that the public simply walked through or if there is need for some construction to enhance the passage.

“Third, the public through traffic must be such that the owner would normally protest the intrusion. However, if the area is not developed anyway or if the public traffic does not interfere with the owner, so that he had no reason to protest their usage of his property, their chazakah of walking is not valid if they did not do construction.

“Fourth, the fact that a group of people used the land as a shortcut does not determine them as public, unless they form a large percentage of the people for whom this passageway was relevant [Chochmas Shlomo 377:1].

“Fifth, some authorities maintain that if the owner has rights officially registered in the land authority, we do not presume mechila on his part by walking alone, if the public did not do any physical improvement to the land [Pischei Teshuvah 153:3; Maharsham I:5. III:376].

“Therefore, on account of five reasons mentioned,” concluded Rabbi Dayan, “Mr. Feder can fence his property even though it will block the passageway to the shul. He never explicitly granted this right; the public never did any physical improvement; he had no real reason to protest previously; the shortcut was used only by a select group; and his property rights are listed with the land authority.” (See Pischei Choshen, Nezikin 8:32 [79-84])

About the Author: Rabbi Meir Orlian is a faculty member of the Business Halacha Institute, headed by HaRav Chaim Kohn, a noted dayan. To receive BHI’s free newsletter, Business Weekly, send an e-mail to subscribe@businesshalacha.com. For questions regarding business halacha issues, or to bring a BHI lecturer to your business or shul, call the confidential hotline at 877-845-8455 or e-mail ask@businesshalacha.com.


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