Question

1. The customers at Manny’s Makolet, the local grocery store, always
   parked their cars on the adjoining empty lot. One day, Yankel
   appeared with members of a fencing company and began to enclose the
   empty lot. Dan, one of the store’s loyal customers asked Yankel what
   he was doing. Yankel replied, "I am going to build an apartment
   block on my land." Yankel showed Dan a copy of the entry in the
   land registry showing that he was the legal owner of this lot.
   "But we have used this land as a parking lot for many years and
   you never objected. You can not take away our parking rights!"
   argued Dan. Is there any substance to his claim?

2. Since 24 Long Vista Blvd. has two entrances, including one
   from Valley Road below, the neighbouring buildings have been using
   it as a short cut to reach Valley Road (they only have one
   entrance). However, the residents of 24 Long Vista Blvd. feel this
   intrudes on their privacy. They now wish to put up signs reading:
   Private entrance, for residents of the building and their guests
   only, at the entrances to the building. Are they entitled to prevent
   outsiders from using their stairway? Does past usage confer rights
   on the public?

Answer

The mishna in Tractate Bovo Basro (99b)
informs us that if a public footpath runs through a private field, the
owner is not able to change its route. Indeed, if he attempts to do so,
the public retain their original right of way – and they have also
gained a new alternative route, given by the owner! The reason given by
Rav Yehudah in the gemora, is that once the public have established a
right of way across private property, the owner may not remove it. The
reasoning behind this law is that since the owner saw what the public
were doing, which infringed on his ownership, but nevertheless failed to
object, we must assume that he forgave his rights to the public.
However, the public must have made some physical changes to the land in
preparing the path; merely walking across another person’s private
property does not establish a right of way (Beis Yosef and Prishah
to Choshen Mishpot 377, from Rashbam). Examples would be
professional levelling of the ground or laying asphalt. In addition, the
path must be used by the majority of those who live in the vicinity, and
not just a few people (Chochmas Shlomo, as above). If these
conditions are fulfilled, we assume that the owner of the land willingly
gave the public a permanent right of way across his property (if
he only meant to give permission for a limited period of time, he should
have mentioned it at the time). Once such rights have been established,
they can neither be removed nor altered, even if all residents of the
town agree. The reason is that the entire world has acquired the right
of way, and not only the local population.

In both of the cases under discussion, the public have been using
private property without making any physical changes to it. They have
been parking their cars on Yankel’s land and walking on the stairs of 24
Long Vista Blvd.. Although the owners saw what was happening and did not
voice any objection, this does not constitute granting a permanent right
of way. They are only giving tacit permission for temporary use
of their property, which they may terminate whenever they wish. Thus,
Yankel may continue building on his land; perhaps those who used his
land for parking for so many years should thank him for the facility?
Similarly, the residents of 24 Long Vista Blvd. may put up signs
restricting access to their building. Perhaps they should think again
whether the inconvenience they have to endure is not outweighed by the
help they are thereby giving to their neighbours!