Flyover Country

However, when the adjacent fields are owned by different individuals, the poor, traveling farmer is out of luck. Each landowner that the farmer approaches to provide him with a path can claim that the path lays in someone else’s field. The farmer has no proof in whose field the path lay. So each landowner will say in court, “Go to the other landowner; surely the path lay in his field.” After taking all four landowners to court with the same result, the poor farmer realizes he has no choice but to buy a path from one of the landowners or fly over their fields to access his farm. (Flyover rights is the subject of its own article.)

Let us say that the sad farmer opted to use a helicopter to access his farm. He was delighted when a large commercial conglomerate bought up all the adjacent fields. He reasoned that now there would be only one party to deal with. He definitely had a path in one of the fields surrounding his own, and now the conglomerate owns the fields in all directions. They won’t be able to tell him to ask a different landowner, because now they are the only one!

The farmer takes the conglomerate to beis din, stating as a fact that somewhere in their fields he had a path. He argues that the conglomerate must provide him with a path.

Not willing to back down easily, the conglomerate hires high-priced attorneys. With a 1,000-page brief, the conglomerate argues that the farmer had no case in the past when different individuals owned the adjacent lands. The conglomerate purchased all the rights that these individuals had in these lands. If these individuals were able to avoid providing a path, the conglomerate should be able to do so as well.

The conglomerate’s attorneys sit with smug smiles awaiting the dayanim’s decision. They are shocked when the dayanim ruled against them. The attorneys shout, “Our case is clearly discussed in the Gemara. The Gemara in Yevamos states that according to the rabbanan, whose position we follow, even if one entity subsequently purchased all four fields, they still do not have to provide a path!”

One of the dayanim, Rebbe Yaakov from Lisa (the Nesivos HaMishpat), decides to explain their ruling (although he can’t explain how the farmer had been using a helicopter, which hadn’t been invented yet.) He turns to one of the lawyers and says, “Let me ask you a question. Suppose you have a thousand animals, but one of them had been stolen from Reuven. Can you escape paying for the animal simply because you can’t identify which animal it was? You would find the value of the cheapest animal and provide restitution, because you know for sure that the said amount is the minimum owed.

“Here, too, you certainly have land that belongs to the farmer; can you reasonably argue that you won’t provide any land to him simply because you can’t identify which piece is his?”

The lawyers respond, “It is very hard to argue with such logic. Still, the Gemara clearly says in our case we are right! We do not have to provide any land or payment.”

The Nesivos replies, “The Gemara is dealing with a scenario where the farmer didn’t actually own any pathway. He simply purchased the right to use someone’s field as a path. When the location of the pathway was lost, the farmer’s right became unenforceable. Consequently, even when one person purchased all the fields, the farmer’s rights remain abrogated. A right that cannot be exercised does not survive the sale of the subject property. The money that the farmer used to purchase a right-of-way through the land is lost forever.

“However, in your case, the farmer actually bought a strip of land. That land remains his no matter what happens. Even if he can’t use the strip of land because he doesn’t know where it is, the land is still his! Among the fields that the conglomerate owns, there is definitely a strip of land that still belongs to this farmer. It is no excuse that you don’t know where it is. You must provide him a path. However, since we don’t know how big the farmer’s path is, you may provide the farmer with the shortest possible path.

“To be succinct, actual ownership of land can never dissipate. However, in certain scenarios, if someone merely has rights to use land, that may become unenforceable and nontransferable.”