Monday, April 27, 2009

Latest Essay: Appears in the current Journal of Halacha and Contemporary Society

Pathways: Easements in Halachah
Rabbi Yosef Gavriel Bechhofer

Rabbi Bechhofer is a Maggid Shiur at Yeshivas Ohr Somayach in Monsey and the Mesivta of Yeshivas Rabbeinu Yitzchak Elchanan, and and an editor at Artscroll/Mesorah currently working on the “Daily Dose” project.

Scenario: In a suburban Jewish neighborhood, for many years the residents have made use of a path between their neighborhood and the local synagogue. The path ran on the property of several of the neighbors, and the synagogue itself. Over the years the path was improved – viz., it was paved, one of the neighbors installed lighting etc. (primarily by the neighbors through whose property it ran and the synagogue, but with the participation of other neighbors as well).

As the synagogue grew, the use of the path expanded as well. At a certain point, the synagogue began some new construction, some of the neighbors who lived closest to the synagogue went to a Din Torah to try to halt the construction. At the same time, they tried to block the construction with the local zoning board. While the zoning board rejected the neighbors' case, it did rule that a fence should be put up to cut off access via the path to the synagogue. The Din Torah simply accepted the zoning board's ruling as Dina d'Malchusa Dina (the law of the Land is law). The Halachic question remains, however, whether the other neighbors, many of whom prayed at the synagogue, who were significantly inconvenienced by the closure of the path (and who were not party to the aforementioned Din Torah), have any recourse to compel the path to be reopened?

Rabbi Yitzchok Yaakov Weiss (Teshuvos Minchas Yitzchak 7:138) deals with a similar question. In that case, the residents of a neighborhood had become accustomed to cutting through a private, open lot. Moreover, since the lot was on the side of a hill, the neighbors, on their own initiative, built stairs in the lot. Subsequently, the lot's owner sold it to another person, who built an apartment house, which he then sold to other people. The new residents of the apartment decided to put up a wall to prevent passersby. Even though they had an alternative path, the neighbors complained that it was longer, and that therefore they wanted their access to the old path restored.

Several other contemporary Poskim deal with this issue, among them Rabbi Shmuel HaLevi Wosner (Teshuvos Shevet HaLevi 10:289).

What was the basis of their claim in the case considered in Minchas Yitzchak? It was the Mishnah (Bava Basra 99b), that states that if a path that has been used by the masses runs through a person's field (מיצר שהחזיקו בו רבים), he may not bar their access to it. Moreover, even if the owner prepares for them an alternative route it is not to his avail, and not only do they retain their previous path, but are now also entitled to use the new routes as well.

What constitutes such a path? Rashbam (ad loc.) explains that it is either a byway on which people have assumed the right (שהוחזקו) to walk from time immemorial (i.e., no one remembers precisely how this situation first came about), or a pathway designated for public use by the field's owner.1
The Gemara (ibid., 100a) adds that the owner also may not “ruin” the path in any way. Rashbam (ad loc.) explains that if the masses smoothed and improved the path to make walking easier, and the owner had been aware of their work and had remained silent, he subsequently may not undo their improvements, as we take his initial silence to constitute acquiescence. The questioner in Teshuvos Shevet HaLevi (loc. cit.) infers from Rashbam that a right of passage may only be considered to have been established if the public actively “took possession” of that right in some way – viz., by leveling the ground and making it easier to walk. Rabbi Wosner responded that Teshuvos HaRashba (#1152) disagrees with Rashbam, and concludes that the right of way in such paths is established by the walking in and of itself (see also Rashba to Bav Basra ad. loc.). Teshuvos Avnei Nezer (Choshen Mishpat #13) rules in accordance with Rashba, and notes that this is, in fact, the simple meaning of the Gemara there (Teshuvos Maharsham 1:5 also rules accordingly, and also cites Teshuvos Beis Ephraim, Choshen Mishpat #22, who asserts that even Rashbam would concede that the right to use a path that is intended solely for walking is acquired by the masses merely by walking there).

Rabbi Wosner does make a different qualification – viz., that Rashbam's implication that the owner's simply remaining silent suffices to establish his acquiescence only applies to a case in which the masses did indeed make physical changes to the path. In cases in which the public establishes its right by walking alone, the owner's silence can only be taken to signify acquiescence if the access established by the masses in some way diminishes the value of his property or causes him a loss in some other manner.2 If that is not the case, then it is only by the express permission of the owner that the public can acquire the right of passage through his property.3

The Mishnah's ruling, as elaborated by the Gemara, is accepted by Rambam (Hil. Nizkei Mammo, end of chap. 13) and both Tur and Shulchan Aruch (Choshen Mishpat #377; see also Bava Basra 60b and Tur and Shulchan Aruch, Choshen Mishpat 417:2). Moreover, the Gemara (Bava Basra 12a) and Shulchan Aruch (Choshen Mishpat 162:2) rule that this law applies even where there already exists an alternative path, so long as the path in question constitutes a shorter route.4

However, Chochmas Shlomo (Choshen Mishpat #377) writes that a path can only be considered a byway on which people have assumed the right to walk if most of the city have been using that path – and that the path's use by “two or three” people does not eliminate the owner's right to close off their access. Clearly then, it is incumbent upon us to determine the status of a case that falls somewhere in between “most of the city” and “two or three people.” Rabbi Weiss is of the opinion that so long as most of the residents of that street (מבוי) use the path, that suffices to render it a byway on which people have assumed the right to walk.5 This would certainly be the case if most of the residents of a neighborhood used the path.

Rabbi Weiss notes that, regardless of the original circumstances, Sema (loc. cit. 377:2) rules that in any case in which the masses currently assume and exercise the right of a pathway through a person's property, the Beis Din assumes a priori (טענינן) that when the public initially began walking through the property, it was with the requisite acquiescence of the owner (see also Pnei Yehoshua loc. cit.).

The questioner in Teshuvos Shevet HaLevi, however, raises an important question, and in his response, Rabbi Wosner issues an important ruling. The questioner asked: Can we not make an assessment (אומדנא) that an owner in his right mind would never relinquish to the masses the right to walk in the middle of his yard, and that he was only silent either because he did not want to create a dispute, or because he was not concerned about the occasional walker? Certainly he did not have in mind to relinquish all rights in perpetuity?

To this inquiry Rabbi Wosner responded that although Sema, and even some Rishonim, are of the opinion that we assume that when the public initially began walking through the property, it was with the requisite acquiescence of the owner, nevertheless, it is reasonable to qualify that if the owner knows that in truth he never did give permission to use his property as a path, and if he is willing to take an oath to that effect, and especially if the Beis Din perceive the justice of his claim under the prevailing circumstances, that he is believed in his claim that he never acquiesced to a permanent path through his property.6

The final issue raised by Rabbi Weiss is very significant, and requires extensive additional research. This is the question as to whether the principle of Dina d'Malchusa Dina applies to this law. Chochmas Shlomo (Choshen Mishpat #377) writes that Dina d'Malchusa Dina does indeed apply to this area of Halachah. It would seem that Rema maintains a similar position, for he rules (Choshen Mishpat 162:1 and 417:1) that the marketplaces and streets are under the jurisdiction of the local authorities, and they may do with them as they please. Hence, it is also incumbent upon us to follow their rulings, determinations and customary practices. This is also the conclusion of Aruch HaShulchan (Choshen Mishpat 377:4 and 417:5).

Albeit, continues Rabbi Weiss, there are some possible qualifications:

1.Pischei Teshuvah (377:2) writes that Rema's position only applies ex post facto – i.e., if the authorities have already intervened – but that it is forbidden to approach them in order to obtain a determination that is not in accordance with Torah law.
2.Pischei Teshuvah (417:1), in the name of Teshuvos Beis Ephraim (loc. cit.) writes that Dina d'Malchusa Dina only applies to cases that concern construction under a public thoroughfare.
3.The case in question in Minchas Yitzchak took place in Israel, and there is a question as to whether Dina d'Malchusa Dina applies in Eretz Yisrael (see Minchas Yitzchak in the preceding responsum (7:137).

1.Nevertheless, on account of the question of the application of Dina d'Malchusa Dina to this area of Halachah, Rabbi Weiss concludes his responsum inconclusively. Rabbi Wosner also concludes his responsum inconclusively for the same reason.7 It is therefore essential to clarify the Dina d'Malchusa in this area.8

In American law, this right is called a prescriptive easement. The Wikipedia entry on easement contains the following information:

Easements by prescription, also called prescriptive easements, are implied easements that give the easement holder a right to use another person's property for the purpose the easement holder has used the property for a certain number of years, which varies from state to state. Prescriptive easement is not the same as adverse possession, which allows a party to acquire title to real property by asserting possession over it for the statutory period... Prescriptive easements do not convey the title to the property in question, only the right to utilize the property for a particular purpose...

Once they become legally binding, easements by prescription hold the same legal weight as written or implied easements. Before they become binding, they hold no legal weight and are broken if the true property owner acts to defend his ownership rights. Easement by prescription is typically found in legal systems based on common law, although other legal systems may also allow easement by prescription.

Laws and regulations vary among local and national governments, but some traits are common to most prescription laws. Generally, the use must be open (i.e., obvious to anyone), actual, continuous (i.e., uninterrupted for the entire required time period), and adverse to the rights of the true property owner. The use also generally must be hostile and notorious (i.e., known to others)...

The period of continuous use for a prescriptive easement to become binding is generally between 5 and 30 years depending upon local laws (usually based on the statute of limitations on trespass). Generally, if the true property owner acts to defend his property rights at any time during the required time period the hostile use will end, claims on adverse possession rights are voided, and the continuous use time period resets to zero.

In some jurisdictions, if the use is not hostile but given actual or implied consent by the legal property owner, the prescriptive easement may become a regular or implied easement rather than a prescriptive easement and immediately becomes binding. In other jurisdictions, such permission immediately converts the easement into a terminable license, or restarts the time for obtaining a prescriptive easement...

Right-of-way for access is among the most common easement by prescription.

It would thus seem that if enough time (as per local regulations) has elapsed since the path was first established (and all the more if the owners of the properties through which the path ran improved the path themselves), even Dina d'Malchusa would allow for the neighbors who were accustomed to use the path to attempt to regain their right of way.
1Darchei Moshe (Choshen Mishpat #377) writes in the name of Mordechai that it is only forbidden to ruin a path that has been used by the masses if those masses were originally permitted to make use of it. Rabbi Weiss notes that this is also the position of Tosafos (Bava Basra 12a d.h. Meitzar). Rema (Choshen Mishpat ibid.) rules in accordance with this view that he cites in Darchei Moshe. On the basis of this explanation of Rashbam,Teshuvos Pnei Yehoshua (vol. 1, Choshen Mishpat #4) distinguishes between an individual and masses. He states that although an individual cannot establish a right of usage in another person's property merely by virtue of the latter's silence (see Bava Basra 41), the masses do establish a right of usage in this manner.

1[Pnei Yehoshua (ibid. and 2:94; cited in Pischei Teshuvah, Choshen Mishpat 377:1) goes even further, asserting that even if the owner's tacit acquiescence was based on a mistake, once the public has established its right of passage, he no longer may rescind that acquiescence (see Bavva Kamma 28a; Ba'al HaMaor and Nimukei Yosef to Bava Basra 99-100). Teshuvos Beis Ephraim (Choshen Mishpat #23; cited in Pischei Teshuvah loc. cit. 377:2), however, distinguishes between an owner who definitively decided to allow the public to use his property as a path – albeit by mistake – and an owner who had only intended to let the public use his property for a specific amount of time.]
2Rabbi Wosner notes that Teshuvos Maharshdam (#238) infers this qualification from Rambam, and that Teshuvos Maharsham (loc. cit.) draws the same inference from Aliyos d'Rabbeinu Yona to Bava Basra loc. cit.
3See the responsum in Teshuvos Shevet HaLevi for Rabbi Wosner's rejection of the position of Teshuvos Chasam Sofer (Orach Chaim #97) on the basis of Aliyos d'Rabbeinu Yonah to Bava Basra 100a. Rabbi Wosner notes that Teshuvos Avnei Nezer (loc. cit.) proves from Sema (377:2) that express permission is required.
4Although Rambam (loc. cit) writes that a Derech HaRabbim, a pathway that is used by the masses, is one that is sixteen amod (cubits) wide (see Be'er HaGolah, Choshen Mishpat #377), Teshuvos Pnei Yehoshua (loc. cit., cited in Pischei Teshuvah, Choshen Mishpat 377:1) writes that Rambam merely meant to define the parameters of a Derech HaRabbim for a case in which one person sold a path characterized as a Derech HaRabbim to another (see Shulchan Aruch, Choshen Mishpat 217:4), and that thus this measurement is not relevant to our case.
5He bases his position on the Gemara (Bava Basra 11b) that states that if the residents of one street want to close an opening, but in doing so will inconvenience the residents of another street, that the residents of the latter street may prevent the resident of the first street from building the wall (see Rashi, Hagahos Ashri ad loc., see also Teshuvos Beis Ephraim loc. cit. and Sema, Choshen Mishpat 377:1).
6Of course, this distinction would be relevant in the case considered by Rabbi Weiss, where the original owner was completely passive, but not in the case with which we opened, in which the owners willingly participated in the improvement of the path.
7He adds also the question of whether a right can only be established my a majority of the city's residents that we saw above, and the position of Teshuvos Maharshdam (loc. cit.) that only a path that is sixteen amos wide on which the masses can establish a right of passage, but he concludes that these are only additional factors that may be taken into account when the Beis Din is inclined to rule in favor of the owner.
8However, Rema's ruling may not be applicable to the case of the neighborhood path to the synagogue with which we opened our discussion. Rema explains that Dina d'Malchusa Dina is applicable to cases of right of way because roads and pathways are subject to the government's jurisdiction and its actions. In the case in point, the path was completely on the private property of individuals and of the synagogue. Moreover, although the local zoning board may have ruled that a fence be erected across the path, it is unclear that they would necessarily disallow an opening for the path.