Babylonian Talmud

Rodkinson 1918 — source 14, scan section 9

TRACT BABA BATHRA (LAST GATE). 227 the outside garden has a right to sow the path. If, however, a path was designated to him by court, on the side, with the consent of both parties, then he may enter and leave whenever he pleases and may also take with him buyers; however, the right to pass through to another field is not given, and neither of them has the right to sow the path. GEMARA: R. Jehudah in the name of Samuel said: If one says, " I sell you a place of one ell for digging a well to water your dry land," it must contain the width of two ells, and he also has to add him two ells from his field to the edges of the well, on which to erect walls to prevent the overflow of the water ; and if he said, " I sell you an ell for making a sewer," it must be one ell wide and one-half ell to each edge. But who has a right to sow the edges (while the walls were not as yet made)? R. Jehudah in the name of Samuel said: The owner of the field; and R. Nhaman in the name of Samuel said: The owner of the field may plant trees there, but not sow it, as by sowing he harms the water. R. Jehudah in the name of Samuel said again : If the walls of a channel fall, the owner of it may repair it from the material of the field upon which the walls were placed; as certainly they fall on the same field where they were placed (but the material was scattered by the wind all over the field). R. Papa, how- ever, opposed, saying that the owner of the field may claim that the water of " your well has underwashed the material and caused it to fall "; therefore he gave another reason, that such a stipulation must have been in existence when he hired that place, for otherwise he would not have wasted his money. MISHNA VII. : If there was a public thoroughfare through one's field and he took it for himself and designated another one at the side of his field, what he has given is considered the public's, and to that which he took for himself he does not acquire title. If one sells a path in his field for a private thor- oughfare it must be four ells, for the public it must be no less than sixteen. A way for the government has no limit. The way for carrying a corpse to the grave has also no limit; how- ever, the space where the people stand for condoling was deter- mined by the judges of Ziboras of a space where four kabhs may be sown. GEMARA: Why should he not acquire title to that thor- 228 THE BABYLONIAN TALMUD. oughfare he took for himself, when he designated another one for the public ; let him take a stick with which to drive off in- truders, or do you want to infer from this that one cannot take the law in his own hands, even when he suffered damage? Said R. Zebid in the name of Rabha: It is to be feared that if this would be allowed, one would give to the public a crooked way; but R. Mesharshia in the name of Rabha said that our Mishna treats of a case wherein the ov^^ner of the field has designated such. R. Ashi, however, maintains that a way which is placed at one side is considered crooked, because it is near to one who resides near to this side, while it is far to him who resides on the other side, (and therefore he does not acquire title) to that which he took. But let him say to the public, " take your way and return mine " (and the Mishna stites what he has given is lost). It is in accordance with R. Eliezer of the following Boraitha : " R. Jehudah said in the name of R. Eliezer, if the pubHc has chosen a way for itself, what was done remains." But may the public be robbers, according to R. Eliezer? Said R. Gid'l in the name of Rabh : He speaks in case the public has lost a way in this field (i.e., some time ago there was a thorough- fare which afterwards was lost). If so, why then said Rabba b. R. Huna in the name of Rabh that the Halakha does not pre- vail with R. Eliezer? The one who has taught this statement was not aware of the other statement (i.e., R. Gid'l does not approve the statement of Rabba b. R. Huna in the name of Rabh). But according to Rabba b. R. Huna, what is the reason of our Mishna's statement, that of R. Jehuda, who said above (p. 145) that a path of which the public took charge must not be spoiled? By which act did the public acquire title to the thoroughfare, according to R. Eliezer? By passing, as we have learned in the following Boraitha: If one passed (in an owner- less field) on its length and 1)readth he acquired title to the place he has passed, so is the decree of R. Eliezer. The sages, however, maintain that passing has no effect at all, and title is not acquired unless he makes a hazakah. Said R. Elazar: The reason of R. Eliezer is the following verse [Genesis, xiii. 17]: "Arise, walk through the land in the length of it and in the breadth of it, for unto thee I will give it." The sages say this cannot be taken for a support, however, as Abraham was beloved by Heaven, and it was said to him for TRACT BABA BATHRA (LAST GATE). 229 the purpose of making easier for his children the subjection of the land. Said R. Jose b. Hanina: The sages admit to R. Eliezer in case of a footpath between vineyards, because it was made for passing, title is also given by passing. When such a case came before R. Itz'hak b. Ami he decided that the plain- tifif should get a footpath upon which he should be able to carry a bundle of branches on his shoulders, which in turning here and there should not touch the walls. But this is said in a case wherein the places for the walls are not yet designated; but if they were, the space should be given him, so as to put one foot after the other. " For a private," etc. There is a Boraitha : Anonymous teachers say: "As much as an ass with its load could pass." The judges of the exile said : Two cubits and a half. And R. Huna said : The Halakha prevails with them. But did not R. Huna say elsewhere that the Halakha prevails with the anony- mous teachers? The limit of both is " equal." "A public thoroughfare is sixteen ells." The rabbis taught: A private way is four ells, a way from one city to the other is eight ells, a public way is sixteen ells, and the way to the cities of refuge (Num. xxxv. 11) thirty-two. [Said R. Huna: Whence is this deduced? From the Scripture (Deut. xix. 3): " The way to them." It should be " a way," and the word " the " makes it double.] The way of the government has no limit, as the king has the right to erect partitions, houses, and no one has a right to prevent him, and the way for burying a corpse has no limit, because of the honor of the dead.* MISHNA VIII. : If one sells a place for digging a grave, or an undertaker makes a grave for one, the inside of the cave must be four by six, and opening into it eight niches for