Bava Batra 99b (צט:) — the Talmud in English

And we explain:

Rabbi Elazar said:

Because of suspicion concerning his wife.

This was instituted so that the homeowner would not suspect his wife of having relations with the owner of the pit. Therefore, the Sages instituted that the homeowner, too, should make a lock for the pit, so that the owner of the pit would be unable to come and draw water from it while the homeowner was not present in his house.

Mishna:

One who has a garden situated within his fellow’s garden,

and the owner of the outer garden agreed to give him a path through his field,

enters at the time when people generally enter, and leaves at the time when people generally leave.

For it is evident that the owner of the outer garden agreed to give the owner of the inner garden a path only when he has a great need to enter, since walking through the garden causes considerable damage to it.

And he may not bring merchants into it.

The owner of the inner garden may not bring merchants into his garden to purchase vegetables from his garden.

Nor may he pass through it into another field.

If he does not need to enter his garden but wishes to pass through it merely to shorten his route to another field, he may not pass through his fellow’s garden. His fellow granted him the right of way only for tending the garden and gathering its vegetables, and not for any other purpose. This is also the reason that he may not bring merchants there.

And the outer owner,

the owner of the outer garden,

may sow the path.

He is permitted to sow the path, since it is self-evident that, because the path passes through the middle of his garden, he certainly did not intend to grant it entirely in such a manner that he would be unable to sow there. If

the court gave him

the owner of the inner garden

a path at the side,

a path that passes along the side of the outer garden rather than through its middle,

with the consent of both of them,

as both agreed to this, then

he enters

it

whenever he wishes, and leaves

it

whenever he wishes.

And he may bring merchants into it.

Since this was done with the consent of both of them, and since the path is at the side and does not cause him so much damage, it is presumably that he granted him the path entirely, so that he may use it for all his needs.

However,

nor may he pass through it into another field.

The outer owner agreed to give it to him only for the needs of his garden, and not to shorten his route from there to another field.

Both of them,

both the owner of the outer garden and the owner of the inner garden,

may not sow it.

Since the path is at the side, they designated it exclusively for passage.

Gemara:

Rav Yehuda said that Shmuel said:

One who says to his fellow:

“An irrigation channel for a field requiring irrigation”

an irrigation channel for watering a field requiring considerable quantities of water,

“I am selling you”

within my field—

gives him two cubits within it.

The channel itself must be two cubits wide, so that it can contain enough water for the irrigated field. He must also give him

one cubit on this side and one cubit on that side,

on its two sides,

for its banks,

so that he can use that earth to repair the banks of the channel if they collapse.

If he said to him:

“An irrigation channel for drawing water,”

an irrigation channel for watering animals and washing clothing and utensils,

“I am selling you,”

and it is not so large,

he gives him one cubit within it,

as its width must be one cubit.

And half a cubit on this side and half a cubit on that side for its banks.

The Gemara raises the matter:

“And those banks,”

the area outside the channel designated to reinforce its banks,

who sows them?

Who has the right to sow them—the owner of the field or the owner of the channel?

Rav Yehuda said that Shmuel said: The owner of the field sows them.

As in the case of our Mishna, concerning the path that the owner of the outer garden gives to the owner of the inner garden, so too here: The owner of the field subordinated this land to him for reinforcing the channel when necessary, but did not completely relinquish his right to sow there.

Rav Naḥman said that Shmuel said: The owner of the field plants them.

He may plant trees there בלבד.

The Gemara explains their dispute:

The one who says that he may sow them, all the more so

that he may

plant them,

as trees cause less damage to the land than crops.

And the one who says that he may plant them

holds that he may plant only trees there, because the roots of trees penetrate deeply and do not damage the upper layer of the soil.

But

sowing them—no!

Because the roots of crops

penetrate in all directions;

they spread laterally and penetrate the upper layer of the soil, thereby damaging the banks of the channel.

And Rav Yehuda said that Shmuel said: In the case of an irrigation channel whose banks have been entirely lost,

that is, whose walls have collapsed,

he repairs it from that field

by taking earth from the adjacent field to repair its walls.

For

it is known that its banks could have collapsed only into that field.

There is a presumption that the earth of the banks dispersed into the adjacent field. Therefore, he may take earth from there to repair the banks.

Rav Pappa challenged this: Let the owner of the field say to him,

the owner of the channel:

“Your water lowered it into your land!”

It was your water that carried the earth of the banks down into the depths of the channel; you may not take anything from my field!

Rather, Rav Pappa said:

That is not the reason. Rather, it is because

the owner of the field accepted it on this condition:

If the banks of the channel collapse, he may take earth from his field, since if he cannot take it from there, from where will he take earth to repair the banks? When he sold him the channel, he resolved to grant him earth from his field whenever he needed to repair the banks.

Mishna:

One whose field was traversed by a public thoroughfare,

for example, because the public had long established the practice of passing there, or because the owner of the field had given it to them himself, and now he wishes to cancel it, and therefore

he took it

from them

and gave them

another path that passes

at the side

of his field:

What he gave, he gave,

and the public has acquired possession of the new path. But as for the old path that he wished to take back for himself,

he has not acquired it.

He did not acquire it; rather, the first path also remains in the public’s established possession.

A private path,

one who sells his fellow a path through his field must give him a path

four cubits

wide, so that a wagon of that width can pass there.

A public thoroughfare,

if he sold him a path for the public, he must give him a path

sixteen cubits

wide. The Sages learned in tractate Shabbat [99a], from the wagons of the Tabernacle, that this is the measure of a public thoroughfare.

The king’s road has no measure.

For the king breaks through fences and the houses of other people to clear a path for himself, so that he need not turn to the right or left.

The burial road,

one who sells his fellow a path through his field to carry the deceased to his grave,

has no measure

in width; rather, he must provide him with a path through which all those accompanying the deceased can pass.

The site for the eulogizers,

one who sells his fellow a place to make a “standing,” according to the custom that when returning from the cemetery after accompanying the deceased, they would sit near the cemetery and console the mourner there or weep there for the deceased; they would then rise, walk a short distance, and sit again, and so on seven times. These places are called “standing sites.”

The judges of Tzippori said

that the measure of such a standing site is

a plot sufficient for four kav.

An area in which four kav of grain can be sown. It is fifty cubits long by thirty-three and one-third cubits wide [according to the calculation based on “two se’a like the courtyard of the Tabernacle,” the area in which two se’a can be sown being one hundred cubits by fifty cubits]. That is, approximately a square forty cubits by forty cubits.

Gemara:

The Gemara raises the matter:

Why has he not acquired his own?

Why does the Mishna say that he not only forfeited the new path that he gave the public, but also forfeited the old path that he wished to receive in exchange?

The apparent reason is that, as a matter of law, he is indeed permitted to make this exchange even against the will of the public, since the public suffers no loss as a result; and in such a case, one compels another to avoid the conduct of Sodom. Therefore, as a matter of law, the public acquired the new path. Nevertheless, he also forfeits the old path, despite having acquired it lawfully, because the public had already become accustomed to passing through it, and he is unable to summon each and every individual to a court of Torah law and prevent him from using it. But challenge this: Since he is unable to summon the public to court, then

let him take a club and sit down.

Let him take a stick, sit on the old path, and drive away those who pass through it!?

Can you infer from this,

that

a person may not take the law into his own hands,

meaning that a person is not permitted to take the law into his own hands

even where there is a loss,

when he would suffer a loss. For example, in our case, he loses the old road. But it is an established halakha that where there is a loss, a person is permitted to take the law into his own hands!

And we resolve this:

Rav Zevid said in the name of Rava:

Actually, a person may take the law into his own hands where there is a loss. However, here, as a matter of law, he cannot take the old road from the public, because the Sages enacted that a person may not replace the public’s road, even if he gives them a road as good as the old one,

lest he give them a crooked road

that is not as convenient as the previous one, and they will not notice this [for a pot belonging to partners is neither hot nor cold]. And the Sages were greatly concerned for the welfare of the public; therefore, they established that even if he replaced it with an equally good road, the public would not thereby lose their previous road [below the Gemara will explain why, if so, the landowner should lose the new road he gave them, since the transaction is one made in error].

Rav Mesharsheya, son of Rava, said:

The ruling of the Mishna applies only

when he gives them a crooked road.

Therefore, he cannot take from them the previous road, which is better than it. But if he replaced it with a good road, he acquires the old road and may take the law into his own hands and prevent the public from using it any longer.