Opposite my house is a lot which has been vacant for many years. We live on a long block and it is very convenient to cut across the lot instead of walking all the way down to the corner. Recently a yeshiva bought the lot with the intention of building a yeshiva building there in a manner which would block the shortcut. I remember learning that one isn’t allowed to block a public path. If I go to beis din will they order the yeshiva to leave the shortcut open? Or, may I raise an objection with the city planning commission asking them to require the yeshiva to leave the shortcut open?
First, you are correct that the Gemara (Bava Kama 28A, Bava Basra 60A) and Shulchan Aruch (CM 377 and 417) rule that one may not block a public path. However, there are qualifications to this rule which render it inapplicable in your situation.
Before answering your question, it is important to note that this rule applies only if the shortcut was used by the general public. Many Acharonim (e.g. Minchas Pitim (siman 377) and Aruch Hashulchan (377, 1)) derive from the Gemara’s words – “a path which was used by many” – that the law applies only if the path was used by the general public. If just you and a few others used it, the owner is free to take back the path and prevent others from using it unless he gave express permission to allow others to use the path.
In your particular case, even if the general public used the shortcut there are still a number of reasons for beis din to turn down your request. One very important reason you cannot claim this right is that the Maharshdam (CM 238) writes that the rule only applies if there is someone who could have prevented the public from using the property and yet he failed to exercise that right. However, if no one could have prevented the public from using the property, then the public’s use is not halachically significant. He specifically mentions that, for example, if the owner of the property suffered no loss when the public used the property, their use is not halachically significant.
The idea is that the public only acquires the right to use a property when the property’s owner agreed to allow the public to use the property. If the owner could not have prevented the public from using the property, or had no reason to care if the public used the property, which is the case when a lot is vacant, the fact that the owner was quiet does not show he accepted the public’s use. The ruling of the Maharshdam is cited by the Knesses Hagedolo (siman 417-note 11 of the notes on the Tur). It is also the ruling of the Sefer Yehoshua (Siman 113) and the Divrei Chaim (CM 2, 13), who is also cited by the Erech Shai (end of Siman 377). Also the Neta Shashuim (Choshen Mishpat 53) was asked about your exact situation and he writes, “If a property wasn’t built due to the laziness of its owner or his lack of funds, even though it was used by the public it does not become a public path.”
A second reason to turn down your request is based on the fact that there is a major dispute amongst the Rishonim whether use alone suffices in order to turn a piece of private property into a public path. The Rashbam (Bava Basra 100A) writes that walking alone does not convert private property into a public path. Rather, it is necessary that the public take some action to make the place fit to be used as a public path. There are Rishonim like the Rabbeinu Yonah and the Rashba (ibid) who disagree with the Rashbam and rule that walking suffices. It is a major dispute among many Acharonim which opinion is authoritative. Sefer Yehoshua (CM 113) and Bach and Maharsham (1, 5) side with Rashbam, and Maharshdam (CM 377), Avnei Nezer (CM 13), Beis Shlomo (CM130) side with Rashba. Therefore, this reason would not be determinative on its own, but together with the first reason you would lose the case.
A third reason is based on a responsa (1, 5) of the Maharsham. He writes that in places where ownership of land is recorded in an official manner, the fact that the public used a piece of land does not transform it into a public path. The idea is the same as before. Since the owner of the property had no pressing need to prevent the public from using the property, as his ownership was recorded by the official government land registry and was never in jeopardy, his failure to object isn’t significant. However, the Mishkan Shalom (Page 314) writes that it is difficult to rely on this alone since there are opinions like the Teshuras Shai (2, 1) and others who disagree with the Maharsham. Furthermore, it would seem to be somewhat strained nowadays, since the fact that a property is deeded in one’s name does not show that it does not contain a public path since the secular authorities will not be concerned about a public path which is only a Jewish religious principle. Therefore, a religious Jewish owner who has to deal with other religious Jews would find it difficult to find support from the fact that the property is titled in his name. However, one can use the Maharsham together with the other reasons.
Based on the above, your efforts to block the yeshiva’s construction would not succeed in beis din.
You asked if you are permitted to petition the planning commission to block construction. The issue is an instance of a broad issue: whether one Jew may use the secular law in order to prevent another Jew from exercising rights which he has according to Jewish law. Since this is a broad general issue we will Be’ezras Hashem devote next week’s column to this part of your question.