Mr. Feder lived just behind a shul. Since the road wound around his large property, people coming to shul on Shabbos would often take a shortcut through his property. The through traffic did not bother Mr. Feder, as his house was on the other end of the property, so he never made a fuss.
One day, Mr. Feder decided to build a fence. He left himself an opening on the side adjacent to the shul, but planned to enclose the remainder of the property.
As the posts were put in place, the president of the shul asked Mr. Feder, “Would you consider also leaving an entrance on the street side, where the shortcut to the shul is?”
“No, I’d like to complete the fence,” replied Mr. Feder. “Once I’m investing in the fence, I’d like to do it properly.”
“But people have been accustomed for years to cut through your property,” said the president. “For some people, walking around your property means an extra seven minutes.”
“It’s my land; I can do what I want,” responded Mr. Feder. “I’ve been nice about it until now, but that doesn’t mean that I owe the public anything.”
“But the Gemara (B.B. 100a) teaches that a person may not ruin a pathway that the public possessed,” replied the president. “This is phrased as ‘Meitzar shehecheziku bo rabbim assur l’kalkelo.’ Since you’ve allowed the public to posses the pathway for the past few years, you’re not allowed to ruin it now!”
“Who says that rule applies here?” said Mr. Feder. “Maybe it’s only when the public officially possessed the path? I never gave people formal rights to walk through the property. At most a handful of people actually asked me whether it was okay. The rest simply trespassed!”
“But you saw them do it and never protested in any way, so you acquiesced to them having this right,” argued the president.
The president had Mr. Feder summoned to Rabbi Dayan’s beis din, asking that he be restrained from fencing the public passageway.
After a brief deliberation, Rabbi Dayan issued the ruling: “The members of the shul cannot restrain Mr. Feder from completing his fence.”
“Why is that?” asked the president.
“The law of meitzar shehecheziku bo rabbim is explicit in the Gemara and codified in the Shulchan Aruch” (C.M. 377:1; 417:2), explained Rabbi Dayan, “but there are numerous limitations on the practical application of this halacha.
“First, there is a dispute among the Rishonim about whether tacit acquiescence through silence suffices or if explicit permission of the owner is required.
“Second, there is a dispute about whether it suffices that the public simply walked through, or if there is need for some construction to enhance the passage.
“Third, the public through traffic must be such that the owner would normally protest such an intrusion. However, if the area is not developed anyway or if the public traffic does not interfere with the owner, so that he had no reason to protest their usage of his property, their chazakah of walking is not valid if they did not do construction.
“Fourth, the fact that a group of people used the land as a shortcut does not determine them as ‘public,’ unless they form a large percentage of the people for whom this passageway was relevant (Chochmas Shlomo 377:1).
“Fifth, some authorities maintain that if the owner has rights officially registered in the land authority, we do not presume mechilah on his part only by walking, if the public did not do any physical improvement to the land (Pischei Teshuvah 153:3; Maharsham I:5; III:376).
“Therefore, on account of five reasons mentioned,” concluded Rabbi Dayan, “Mr. Feder can fence his property even though it will block the passageway to the shul. He never explicitly granted this right; the public never did any physical improvement; he had no real reason to protest previously; the shortcut was used only by a select group; and his property rights are listed with the land authority (see Pischei Choshen, Nezikin 8:32[79-84]).”