Bava Batra 100a — the Talmud in English

Rav Ashi said:

the Mishna is also speaking of a case in which he gave them an ordinary road, and nevertheless he is not permitted to exchange that road for them—not because of a decree, lest he give them a crooked road, but because whenever the road is

on the side

of the field,

it is a crooked road!

For although

it is close to this one,

to those who live nearby, on the other hand it is not convenient

and far from that one,

to those who live on the other side, for whom the previous road was closer. And with regard to them, this is like exchanging it for a crooked road, and he has no permission to rob the public. Therefore, he does not acquire the old road.

And we raise an objection: If so, since the exchange is not legally valid, and the old road remains under the possession of the public, whether we say that this is by law or by virtue of the enactment of the Sages, why should the owner of the field not be able to take back the new road that he gave them?

And let him say to them,

let him say to them:

Take what is yours,

take the old road, which is yours,

and give me what is mine!

Return to me what is mine, for it is a mistaken transaction!?

And we answer:

Whose is this?

Who is the tanna of our Mishna?

It is Rabbi Eliezer!

For it was taught: Rabbi Yehuda says in the name of Rabbi Eliezer: If the public selected

—that is, chose—

a road for themselves

within a field without the owner’s permission,

what they selected, they selected!

And the owners are not permitted to take it from them.

And we are astonished: What,

according to Rabbi Eliezer, are the public robbers!?

And how is it permitted for them to rob another person’s land?

And we answer:

Rav Giddel said in the name of Rav:

Rabbi Eliezer is speaking

of a case such as when they lost a road in that

field,

that they had a road in that field, and it was lost to them, and they do not know where it is. Therefore, they may choose another road for themselves in place of the lost road. For if an individual lost the road through another person’s field, he may not choose a new road for himself; rather, either the court will give him one, or the owner of the field will choose one for him. But the public have the advantage, because since there is no one among them who will summon the owner of the field to court, their status is like that of a court, and they may choose a new road for themselves.

And this is all the more so in our Mishna, where the owner himself gave the public the new road, so he cannot go back and take it from them. Yet, on the other hand, they also do not lose the old road, for the Sages penalized him because he gave them a crooked road.

And we challenge this:

If so,

that Rabbi Eliezer is speaking only when they lost a road there,

why did Rabbah bar

Rav Huna say in the name of Rav: The halakha is not in accordance with Rabbi Eliezer!?

But the law is with him: If the public selected a new road for themselves, they acted properly, since in either event they have a road in that field?

And we answer:

The one who teaches this does not teach that.

Rav Giddel, who said in the name of Rav that Rabbi Eliezer is speaking only when they lost a road in that field, does not hold like Rabbah bar Rav Huna, who said in the name of Rav that the halakha is not in accordance with Rabbi Eliezer. Rather, according to his statement, Rav holds that the halakha is in accordance with Rabbi Eliezer.

And we examine it: According to Rabbah bar Rav Huna in the name of Rav, who says that the halakha is not in accordance with Rabbi Eliezer, then

what is the reason?

What is the reason for the Mishna, according to which the owner of the field lost the new road that he gave the public? For certainly he would not establish the anonymous Mishna as following Rabbi Eliezer, whose view is not the halakha? And we answer:

Because of Rav Yehuda.

For Rav Yehuda said: A boundary

between two fields

through which the public established possession,

that they leveled it and prepared it for walking, and the owners saw and remained silent,

may not be damaged

by removing it from public use and returning it to an individual. Since the owner of the field knew and remained silent, he certainly waived his right to that boundary in favor of the public. And this is all the more so in the case of our Mishna, where the owner of the field himself gave it to the public, and they had already established possession in it, for he may not take it back from them.

And we examine it:

And Rabbi Eliezer,

who, according to Rabbah bar Rav Huna, is speaking when they did not lose a road in that field [and therefore the halakha is not in accordance with him]. Nevertheless, he maintains that what they selected, they selected, even if they did not establish possession there at all, but only selected it verbally. If so, the public,

by what did they acquire it?

What, do they acquire merely through speech?

And we answer:

Through walking.

By walking there they acquired it, for walking is an act of acquisition establishing possession.

For it was taught

that Rabbi Eliezer holds that walking is an act establishing possession: One who purchases a field from his fellow and

walked through it lengthwise and widthwise

acquired

the place of his walking, the words of

Rabbi Eliezer.

And the Sages say: Walking accomplishes nothing until he establishes possession

—that he performs a complete act of establishing possession, preparing the land for plowing, or building a fence and breaching any amount.

Rabbi Eliezer said: What is the reason of Rabbi Eliezer

that walking constitutes establishing possession?

For it is written

concerning Abraham, to whom the Holy One, blessed be He, said, “

Arise, walk through the land, for to you I shall give it.”

And it implies that through this he acquired the land.

And the Sages

hold that there is no proof from there, because

there

He did not tell him to do so because of establishing possession, but

because of Abraham’s belovedness: this is why He said this to him, so that it would be easy to conquer before his sons.

So that they would be like heirs and not like robbers, and so that the Adversary would have no permission to prosecute.

Rabbi Yosei bar Rabbi Hanina said: The Sages agree with Rabbi Eliezer regarding a vineyard path,

for

since

it was made for walking, it is acquired

also

through walking!

For everything is acquired through the benefit of its use, and the use of a vineyard path is walking on it.

When they came before Rav Yitzhak bar Ami,

when they came before him for judgment regarding one who sold his fellow an unspecified vineyard path, how wide must it be given to him,

he said to them: Give him

a wide path,

so that he can carry a bundle of vines, and turn around.

To the extent that he can carry a bundle of shoots on his shoulder and turn this way and that, without the shoots touching the walls of the path.

And we said this

that this measure applies

only when the walls are marked out,

when there is a fence on both sides of the path; then he must widen the path and move the fences away so that the one carrying the shoots will not stumble against them.

But when the walls are not marked out,

if there is no fence there,

so that he can lift one foot and place the other.

They give him only the width of the sole of his foot, and he may sow or plant a vineyard in the remainder, for there is nothing there that can interfere with carrying the bundle of shoots.

We learned in the Mishna:

An individual’s road is four cubits.

A tanna taught: Others say,

the width of an individual’s road is

so that a donkey carrying its burden can pass.

Rav Huna said: The halakha is in accordance with Others.

The judges of the exile

—they are Shmuel and Karna—say: The measure is

two small cubits

[small cubits; and some say complete cubits]

and a half.

And Rav Huna said: The halakha is according to the judges of the Exile.

And we raise an objection:

But Rav Huna said: The halakha is according to the Others!

And we answer:

This and that are one measure.

The two measures are equal. Therefore, Rav Huna ruled that the halakha is according to both of them.

We learned in the Mishna:

A public thoroughfare is sixteen cubits.

The Sages taught:

One who sells to his fellow within his field

a private path,

so that one person can pass through it in order to reach his field, its measure is

four cubits,

which is the width of a wagon.

If he sold him

a road from city to city,

a road designated only for these two towns, and people from other towns do not enter there, he must give him a road with a width of

eight cubits,

like the width of two wagons, so that if two wagons meet in the middle of the road, they will not have to wait for one another.