"And there was a quarrel between the herdsmen of Avram and the herdsmen
of Lot." (Bereshith 13:7)
The previous essay discussed the issues of an outright act of stealing
land and border manipulation. A subtler act of land theft is taking a
shortcut through a private estate. The halachoth of such a shortcut depend
on the circumstances surrounding its formation.
If the property owner originally consented to allow the path to traverse
his land, then he has forfeited his rights to it. If at some point he were
to take it back, refusing to let people use it, he would be committing an
act of theft (1). The owner does not have the right to replace this path
with another one on the side of his property. Nevertheless, if he does
offer an alternate path, the public has the right to use the new path,
while retaining the right to use the original path (2). Even if people
forgo their right to use the original path, it still belongs to them (3).
If the owner of the land was not consulted when people began using a
section of his land for a shortcut, even if he never contested the
creation of the path, he retains the right to protest its use at any time.
Thus, if at first he did not need the land and only later decided that he
needs it, or if the number of people using the path has increased to the
point that it is disturbing him, then he has the right to prevent people
from traveling through his property. According to this halachah, if the
hallway or stairwell of a building has become a shortcut for public use,
the building’s residents retain the right to protest (4).
1. Mordechai, Bava Metzia 506; Rema, Choshen Mishpat 377.
2. Bava Bathra 99b; Shulchan Aruch Choshen Mishpat 377. The Maharshal
adds that nowadays this halachah would be subject to the law of the
country in which the question arose.
3. Bava Kama 28a.
4. Mishpatei HaTorah 2:69.