Bava Batra 100a (ק.) — the Talmud in English

Rav Ashi said:

The Mishna is also speaking of a case where he gave them an ordinary road, and nevertheless he is not permitted to exchange it for another road—not because of a decree lest he give them a circuitous road, but because whenever the road is

on the side

of the field,

it is a circuitous 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,

for those who live on the other side, for whom the previous road was closer. For them, this is equivalent to exchanging it for a circuitous road, and he has no authority to rob the public. Therefore, he does not acquire the old road.

And we challenge this: If so, since the exchange is invalid and the old road remains in the possession of the public, whether we say that this is the law or that it is due to a rabbinic ordinance, why should the landowner not be able to reclaim the new road that he gave them?

And let him say to them,

let him say to them:

Take your own,

take the old road, which is yours,

and give me mine!

Return to me what is mine, since the transaction was undertaken in error!?

And we answer:

Whose opinion is this,

who is the tanna of our Mishna?

It is the opinion of Rabbi Eliezer!

As it was taught in a beraita: Rabbi Yehuda said in the name of Rabbi Eliezer: When the public selected

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: Is it so that

according to Rabbi Eliezer, the public are robbers!?

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

And we answer:

Rav Giddel said that Rav said:

Rabbi Eliezer is speaking

of a case where they lost their road in that

field,

where they had a road in that field, but they lost it and do not know where it is. Therefore, they may choose another road 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 will choose a road for him. But the public have greater standing, because since none of them will summon the owner of the field to court, their status is like that of a court, and they may choose a new road themselves.

And all the more so in our Mishna, where the owner himself gave the public the new road, for he cannot retract and take it from them. On the other hand, they do not lose the old road either, for the Sages penalized him because he gave them a circuitous road.

And we challenge this:

If so,

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

why did Rabba bar

Rav Huna say that Rav said: The halakha is not in accordance with Rabbi Eliezer!?

But the law is on his side: If the public selected a new road for themselves, they acted properly, for 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 their road in that field, does not hold like Rabba bar Rav Huna, who said in the name of Rav that the halakha is not in accordance with Rabbi Eliezer. Rather, according to him, Rav holds that the halakha is in accordance with Rabbi Eliezer.

And we examine this: According to Rabba 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’s ruling that the owner of the field loses the new road he gave the public? For certainly he would not interpret the anonymous Mishna as following Rabbi Eliezer, whose opinion is not the halakha? And we answer:

It is because of Rav Yehuda.

For Rav Yehuda said: A boundary

between two fields

that the public have established,

leveling and preparing it for passage while 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 relinquished his right to that boundary in favor of the public. And all the more so in our case, where the owner of the field himself gave it to the public and they have already established possession of it: He may not take it back from them.

And we examine this:

And Rabbi Eliezer,

who, according to Rabba bar Rav Huna, is speaking when they did not lose their road in that field [and therefore the halakha is not in accordance with him]. Nevertheless, he holds that what they selected, they selected, even if they did not establish possession there in any way, but merely selected it verbally. If so, the public—

by what means did they acquire it?

Do they acquire it merely through speech?

And we answer:

Through walking.

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

As it was taught

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

walked through it lengthwise and widthwise

acquires

the place where he walked, the words of

Rabbi Eliezer.

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

by performing a complete act establishing possession, such as preparing the land for plowing, or enclosing even a small area by building a fence or breaching one.

Rabbi Eliezer said: What is the reason of Rabbi Eliezer

for holding that walking constitutes an act establishing possession?

As it is written

regarding Abraham, when the Holy One, blessed be He, said to him, “

Arise, walk through the land, through its length and breadth, for I will give it to you.”

This implies that through doing so he acquired the land.

And the Rabbis

hold that no proof can be brought from there, because

there,

He did not tell him to do so on account of establishing possession; rather,

it was on account of Abraham’s beloved status: He said this to him so that it would be easy for his children to conquer the land.

They would be like heirs rather than like robbers, and Satan would have no opportunity to prosecute against them.

Rabbi Yosei bar Rabbi Ḥanina said: The Sages concede to Rabbi Eliezer with regard to a vineyard path,

that

since

it was made for walking, it is acquired

also

through walking!

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

When they came before Rav Yitzḥak bar Ami,

to litigate before him concerning one who sold his fellow an unspecified vineyard path—how wide a path must he provide him?

He said to them: Give him

a wide path

so that he can carry a load of vine branches and turn around.

That is, a width sufficient for him to carry a bundle of vines on his shoulder and turn this way and that without the vines touching the walls of the path.

And we said this

only with regard to this measure

when the boundaries are marked,

when there is a fence on both sides of the path. In that case he must widen the path and move the fences farther apart, so that the one carrying the vines will not stumble against them.

But when the boundaries are not marked,

if there is no fence,

it is sufficient that he place one foot and then the other.

He need give him only the width of the soles of his feet, and he may plant or cultivate a vineyard in the rest, since there is nothing there that could interfere with carrying the vines.

We learned in the Mishna:

An individual’s road is four cubits wide.

A tanna taught: Others say,

the width of an individual’s road is

sufficient for a donkey to pass with its load.

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

The Judges of the Exile

were Shmuel and Karna] say: The measure is

two cubits

[small cubits. And some say full cubits]

and a half.

And Rav Huna said: The halakha is in accordance with the judges of the exile.

And we challenge this:

But Rav Huna said: The halakha is in accordance with the Others!

And we answer:

Both this measure and that measure are one and the same.

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

We learned in the Mishna:

The public thoroughfare is sixteen cubits wide.

The Sages taught:

One who sells to another

a private path within his field,

on which one person can pass 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 one city to another,

meaning that the road is designated exclusively for these two towns, and people from other towns do not enter it, he must provide him with a road

eight cubits wide,

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.