By Rabbi Avrohom Sebrow
Rav Zilberstein, shlita, discusses an interesting halachic question relating to the daf learned this week (Bava Basra 100a). Someone had a half-height brick wall on the front of his property. There happened to be a bus stop right there. Since there was no bench for the public to use, many bus travelers sat on the wall while waiting for the bus. The owner of the house watched the daily occurrence and never said anything. However, for aesthetic reasons, the owner of the house now wants to have a full-height wall bordering his property. The halachic question raised was whether owner may build the complete wall and thereby deprive the bus-riding public of the seating amenity that they had come to enjoy.
The question revolves around a statement uttered by Rav Yehuda. Rav Yehuda said that a strip of land that has been appropriated by the public may not be ruined. In the times of the Gemara, it was common for there to be a strip of land that was used to divide fields from one another. This privately owned piece of land was generally left bare. If the public uses that strip of land as a walkway, the owner of the land may not reclaim it for his own use.
The Rashbam explains that this is true even if the owner did not verbally give the public permission to use the strip of land as a walkway. Rather, he gave his tacit approval to the idea by his continued silence. That unspoken permission is enough to guarantee the public the continued use of his land.
However, the Rashbam seemingly adds a necessary condition precedent in order for the walkway to become public. He writes that the public must have cleared the path or fixed it up in some manner to make it level. If the public simply uses the land, that does not create any new rights. Rav Zilberstein therefore concludes that the public does not have any claim against the homeowner to force him to keep their makeshift bench there. They did not perform any type of repair on the half-height brick wall; they simply used it as they found it.
Still, one could argue against this conclusion. The Rashbam seems to be the only Rishon who mentions the idea that the public must have fixed up the path to warrant a continued right to use it. The Ri Migash, Rabbeinu Chananel, the Rashba, and the Ritva all say that the public is entitled to keep using the strip of border land as a public path once it became established as such through mere use. Moreover, the Shu’t Pnei Yehoshua remarks that this Rashbam is not accepted as halachah; it is not mentioned by the halachic codifiers. He even suggests a different explanation of the Rashbam, according to which everyone holds that the continued use of private land by the public, even without any repairs, creates a public right.
So must the owner of the half-height wall leave the wall there indefinitely for the public to use as a bench? Rav Zilberstein suggests another angle, based on a Maharsham, to help the property owner. In the times of the Gemara, there was no detailed record-keeping system for lands. If the owner of the border strip did not want his land becoming a public thoroughfare, he should have protested, because if he ever wanted to change his mind, he would have a hard time proving that the strip of land is really his. Since the strip was used by the public for a number of years, barring any proof, the courts would reasonably conclude that the land is actually publicly owned. The owner knew of this possible outcome in the future, yet he was silent, so his continued silence proves that he approved of this strip of land forever remaining a public thoroughfare.
Nowadays, however, there is a system in place to record deeds with precise descriptions of the properties. The owner knew that no one could ever claim that the half-wall and the land under it belong to the public. He knew that at any time he could always revoke his permission for the public to sit on his wall and he could not be challenged in court. He could simply produce the detailed deed. Therefore, his silence does not prove that he consented to grant the public a permanent right to sit on his wall. The owner of the wall may therefore revoke his (implied) permission and build a full-height wall.
There is a wonderful and generous family that provided actual benches for the public to use on Reads Lane in Far Rockaway. The benches are frequently used by young and old alike. Would the family be able to reclaim these benches for personal use? Here the question does not pertain to the land but rather to the bench itself. There are no government records for plastic benches! Perhaps Rav Zilberstein would say in this case that the benches must remain in the public domain. Needless to say, the generous family has no interest in taking back the benches.
Rabbi Avrohom Sebrow leads a daf yomi chaburah at Eitz Chayim of Dogwood Park in West Hempstead. He can be contacted at ASebrow@gmail.com.
