RIGHT OF WAY:

By: Executive Committee of the Editorial Board., Lewis N. Dembitz

The law in general distinguishes between the right of private way (that is, A's right to pass over a certain strip of B's land) and that of public way (the right of everybody to pass over a strip of land which may or may not be private property otherwise); and the Hebrew law recognizes a third and broader right of way, that referring to the king's highway or to the way to the grave.

Under Sale of Land cases are stated in which the sale of part of the vendor's land does or does not confer on the purchaser a right of way over the residue. But the law recognizes generally the "right of way from necessity"; that is, where one man's property is surrounded by that of another, the former is entitled to means of access and egress. Assuming this principle, the Mishnah (B. B. vi. 5, 6) says:

In the absence of an agreement to the contrary the width of a private way is four cubits (ib. 7), this width being deemed sufficient for an ass with his load (B. B. 100a).

A public way is acquired by usage. Mere walking forward and backward across the strip is not enough: there must be some occupancy by "the many" ("ha-rabbim"), such as treading the soil down into a hard road, or artificially leveling it. No particular length of time is mentioned for maturing the public right. Where the owner of vineyards leaves a vacant strip between fences, he gives an implied permission to walk on it, and as soon as the public begins to do so the strip stands dedicated as a highway. When a highway is once acquired by the public, the owner can not resume exclusive rights; hence should he, with the intention of retaking a public way running over the middle of his field, dedicate a strip on one side of it, the public will have a right to the use of both ways.

According to the Mishnah (l.c.), a public way should be sixteen cubits in width; but a baraita distinguishes thus: a way from one city to another should be eight cubits in width; a way for the many (probably, one on which people from several cities meet, a trunk-road) should have a width of sixteen cubits; and the road running to the cities of refuge thirty-two cubits (see Deut. xix. 3). The streets of a city are public highways and as such a part of the public domain (see Domain, Public).

The king's highway, that is, the way which he has the right to lay out for the use of his army, is not limited in width ("has no measure"; B. B. vi. 7; Sanh. ii. 4), and he may, to open the road, tear down fences and other obstructions.

The way to the grave also "has no measure" (B. B. vi. 7); that is, those who carry or follow the bier may, when they find it necessary, go to the right or left, so as to reach the place for burial without needless delay. But while they have not, like the commander of troops in the field, the right to tear down fences (they must climb over them), they may tread on fields and meadows.

No one should throw stones from his private land into the highway; nor should any one tunnel or dig cisterns or cellars under it; but one may, for the benefit of the public, dig a cistern in the highway.

One whose house or other building abuts on the highway may not erect over it balconies or projecting stories, unless they be high enough to allow a camel with its rider to pass below; nor of such a size as to darken the highway. Where one buys a court of which the balconies or projecting stories are by prescription ("ḥazaḳah") over the public way, he may rebuild them when they fall down. Where a tree leans over the highway the owner must trim it, to leave room for a camel and rider to pass under its branches.

It is unlawful to leave wetted clay for any length of time on the highway, or to make bricks on it; but mortar for building a house may be left by the side of it. Where one prepares stones for a building, he may not let them lie on the highway for an indefinite time, but should use them at once. Whoever acts against these rules is liable for the full damage arising from his act (the words rendered "highway" are "reshut ha-rabbim," i.e., "public domain"). See B. Ḳ. 50b; B. B. ii. 13; iii. 8, 60a; also Shulḥan 'Aruk, Ḥoshen Mishpaṭ, § 417.

The Talmud does not indicate any procedure by which the commonwealth may expropriate the owners of land in order to acquire public highways; nor does it prescribe any form of dedication for roads and streets.