Translation:Shulchan Aruch/Choshen Mishpat/155

Paragraph 1- If a house and upper story belonged to two individuals, the homeowner cannot set up an oven in the house unless there is a height of four amos between the oven and floor of the upper story so that the upper story does not burn down. Similarly, the upper-story-owner cannot set up an oven unless there are three tefachim of plaster underneath aside for the four amos on top of the oven. A kirah-stove only requires one tefach of plaster underneath. A baker’s-oven must have four tefachim underneath, while a baker-kirah-stove requires three tefachim. Even if the homeowner distanced the required amount, if a fire emerged and caused damage, he must pay whatever he damaged. Every person must distance this amount in his home because of the neighbors who have the right to demand it.

Paragraph 2- If one had a store underneath another’s storage, he cannot turn the store into a bakery, a dye-store or a stable and he cannot bring in unfinished grain or anything similar that brings in a lot of hot air because heat will ruin the fruit-storage. Similarly, one with such a house cannot open a window into a room underneath the storage. Therefore, if the room was used for wine-storage and was in Israel where heat would not ruin the wine, the other party can do any work that requires fire. He cannot make his house a stall, however, because that ruins the smell of the wine. Similarly, he must distance himself in a place where sound and shaking would be bad for the wine. If the store was initially established as a stall or bakery, and the upper-story-owner now wants to make the upper story storage, such owner would not be able to object to the stall or bakery.

Paragraph 3- If the upper-story-owner indicated that he wanted to create a storage area, such as by sweeping and washing the upper story or by adding more windows as is generally done by those creating storage, and the homeowner set up the oven before the upper story had a chance to bring in fruits to store, or if the upper-story-owner began storing sesame, pomegranates or dates or something similar, and the homeowner set up an oven before he had a chance to store wheat, or if the store-owner created a path on top to separate between the store and storage, the storage-owner has the right to stop the other party. If the other party went ahead and set up the oven, the store-owner cannot remove it.

Paragraph 4- If the upper level water was pouring into the lower level and causing damage and there was no plaster so that when water is poured it immediately goes down and causes damage, the upper-level-owner is required to remove the damage. If there is a plaster that absorbs the water so the water does not go down immediately, but only goes down and causes damage at a later time, he is not required to remove the damage. ''Everything depends on the circumstances. If there is only a small amount of water and it would immediately disappear even if there was no plaster, he is not required to remove the damage. If there is a lot of water and it constantly causes damage through the plaster, he would be required to remove it. This is all with respect to water the upper-level-owner pours on to the upper level. If rain fell on the upper level and went down, however, the victim would be required to fix the issue so that he would not be damaged.'' One must distance olive-refuse, manure, salt, lime, rocks and moist sand three tefachim from another’s wall or he must plaster it. Paragraph 5- One must distance seeds, plows, and urine-holes three tefachim from another’s wall. ''With respect to the urine-hole, he must also plaster it. See later in seif 10. Even if there is no hole one is prohibited from pouring urine within three tefachim of a wall.''

Paragraph 6- One may not urinate on another’s brick wall unless he distances three tefachim. Only one tefach is required for a stone wall. If the stones were dry rocks, he may urinate right next to it without any distance.

Paragraph 7- One must distance a mill three tefachim from the lower part of the mill to the wall, which is equivalent to four tefachim from the upper part of the mill, so that the mill does not shake the wall or disturb the other party with the sound of the mill. ''This is all with respect to a small mill, such as a hand mill. With respect to a large mill that animals move around, however, a greater separation is required. If one does not distance and ends up damaging the other, he would be required to pay the amount of damage the judges perceive he had caused. The same applies to other damages, such as when a weaver damages another with a blow while weaving. They would appraise the damage with experts and craftsmen or anything similar.''

Paragraph 8- One must distance an oven three tefachim from the floor of the oven to the wall, which is equivalent to four tefachim from the edge of the oven, so that the wall does not get hot. We measure from the inner lip because the thickness of the oven walls are part of the three tefachim.

Paragraph 9- There are those who say that all these requirements to distance from the wall are only with respect to a brick wall. There are others that say that it is even true with respect to stone walls, which is the opinion of the Rambam and Rabeinu Yonah.

Paragraph 10- One cannot dig a round pit, a long and narrow pit or a cave, nor can one bring in a water channel or create a water hole to soak clothing to clean them, unless he distances three tefachim from the wall. He must plaster the wall of this pit or this pool of water or water channel that is next to another’s wall, so that the water does not get absorbed and ruin such other person’s wall. ''There are those who say that even if the water is not always there, such as a pipe that pours water from the house outside, he still must distance from another’s wall. There are those that disagree. Nevertheless, everyone agrees that one is prohibited from pouring urine next to the wall, as was explained in seif 5. The same would apply with a waterless pit, and one is prohibited from digging next to another’s wall. He must fix the pit based on the view of the craftsmen who are experts in this area.'' Paragraph 11- One must distance a stone that a washer hits clothing on four amos from another’s wall because when the washer hits the rock, water shoots out and damages the wall.

Paragraph 12- If Reuven’s wall was perpendicular to Shimon’s and Reuven wants to create a second wall opposite Reuven’s so that the three walls would look like the letter “beis,” Shimon can stop him until he distances four amos from his wall so that the space between the two walls is wide enough for lots of people to walk on it and strengthen the earth. Even if the wall was there for many days and then fell, when he rebuilds it he must build it at a distance.

Paragraph 13- When is this true? With respect to a garden-wall or a courtyard-wall in a new city. In an old city, however, the earth has already been strengthened and one can build opposite the wall without any distance. ''A city is considered new up until 50 years. A residential house has the status of a garden-wall.''

Paragraph 14- Similarly, if Shimon’s wall that Reuven wanted to build opposite is not four amos, Shimon does not have to distance even though he is preventing people from walking there, because a wall that is less than four amos does not require the earth to be strengthened. ''Similarly, if Reuven’s wall goes from east to west, and Shimon wants to build a wall next to it from north to south, Shimon would not have to distance. There are those who say that this is only where they acquired the land from the king or if it was ownerless. In all other cases, however, one can put a wall next to another wall.''

Paragraph 15- If one is grinding wheat or something similar in his own property and at the time he strikes he creates vibrations in another’s courtyard to the point where the cover of a barrel would shake off the barrel- there are those who say that such a strong vibration is not required and only a small vibration is required- the grinder is one who damages with his arrow and is required to distance far enough that he does not create vibrations or he must stop the work that is causing the damage. If he damages while creating the vibrations he must pay, because the damage is a result of his actions. ''Even if the courtyard was built after the damager had arrived here, he still must distance his damage. The same would apply if there was no damage to the courtyard but the courtyard-owner has a headache and the sound of the striking damages him, and the damager must distance himself.''

Paragraph 16- One must distance a ladder four amos from another’s nest so that a cat cannot jump on the ladder while it is there, climb up to the nest and eat the birds.

Paragraph 17- One must distance a wall four amos from another’s pipe so that the pipe-owner has room to erect a ladder and fix the pipe because the pipe-owner had obtained rights to it. There are those who say that if someone acquired an area so that he can climb up to his pipe, the seller must give him four amos to erect the ladder.

Paragraph 18- If one comes to dig a pit at the edge of his field, next to another’s field, and the other’s field is not made for pits, he may dig the pit at the edge and the other party cannot object. If the other party changes his minds and wants to dig a pit next to this pit, he must distance six tefachim from the wall of the pit so that there will be an airspace of six tefachim between the two pits. If the other’s field was made for pits, he cannot go all the way to the edge and he must distance three tefachim from the other border and dig. When the other party comes to dig he will also distance three tefachim and dig. ''When the party distances, there are those who say that he must also plaster the wall of his pit, as was explained in seif 10. There are others who say that either plaster or distancing is enough.''

Paragraph 19- If one digs a pit in his field and sells half the field and the buyer also wants to dig a pit, the buyer must distance the full amount, even if it is a field made for pits, because the first party dug legally since he dug in his own field. ''Similarly, a person can commit all kinds of damage in his own field when there is nothing that will be damaged, except for a digging a pit next to a field made for pits. There are those who disagree with this.''

Paragraph 20- If Reuven dug a pit in his courtyard for rainwater to gather inside and when there’s a lot of water the water would overflow into the walls of Shimon’s wine cellar, Reuven is required to remove his damage. All damages whose amount of distance is unspecified, the amount is the amount needed so that he does not damage, as determined by the experts.

Paragraph 21- There are those who say that this that a distance of six tefachim suffices is only with respect to mountains. In a place where the earth is week, however, one must distance more. Thus, one must distance a bathroom from another’s pit the amount necessary for people to observe that none of the moisture from the bathroom is entering the pit. To be safe, one should distance 50 amos. ''There are those who disagree with all this. In any situation where the damager must distance, he must distance even where a public domain passes through the house. For example, in a case of two courtyards on two sides of a public domain, one must still distance.''

Paragraph 22- One must distance a permanent threshing floor 50 amos from the city so that the wind will not carry the straw while winnowing and damage the people of the city. ''If the threshing floor preceded the city, he must distance but the people of the city must pay him. If it is unclear who came first, he must remove the threshing floor without payment. From here some deduce that in a case where a government official decrees that the Jews in his jurisdiction must force those Jews living under more minor officials in small villages to come live under this rule and if not he will drive all the Jews out, they must all listen to the words of the official and remove the damage to the public and travel to the official’s city, and later they can litigate with the public if a damage results from this.'' Similarly, a person cannot make a permanent threshing floor in his own property unless there were 50 amos on each side so that the straw does not damage another’s planting or plowing.

Paragraph 23- One must distance carcasses, graves, tanneries, furnaces and bees 50 amos from the city. One can only make a tannery on the east side of the city because the eastern wind is hot and diminishes the damage from the skins.

Paragraph 24- One must distance a nest 50 amos from the city. Similarly, a person cannot make a nest in his own property unless there is 50 amos on each side. If he purchased it after it was in existence, he can keep it even if it is within a rova. Even if were to fall, he is able to rebuild it because we make a claim on behalf of the buyer that the first owner created it legally, whether it opposes an individual or many people.

Paragraph 25- If another’s field was planted with grapes or other trees and an individual wants to plant grapes in his own field next to the other’s grapes or trees next to the other’s trees, he must distance four amos ''because that is the amount required to plow between the trees. If the practice is not to plow between the trees, he does not have to distance at all. In a situation where they are required to distance and they are both coming at the same time, each one must distance half the required amount.'' When is this true? In Israel. In the diaspora, however, we would distance two amos between grapes and between trees and four amos between grapes and other trees ''or a treeless field. There are those who say that one must distance between grapes and trees the amount determined that birds would not fly from the trees to the grapes in one trip. There are those who say that this is only where one plants trees. If one plants seeds and the tree grows automatically, however, one does not have to distance. If Reuven sold his house to one person and his garden to another, the garden-owner does not have to distance his trees even if the house was sold first. We do not use the principle of one who sells, sells generously here. See earlier 124:28.'' In all places, if there was a fence between them, each party can go all the way up to the fence.

Paragraph 26- If another’s tree was leaning into one’s field, he can cut the amount needed for the full height of an ox-goad over a plow. With respect to a carob or sycamore tree, he can cut anything that leans over the border until it is even with the border. Similarly, if the tree was leaning over a field that requires irrigation or has no trees, he may cut even other trees the entire amount leaning over until it is even with the border.

Paragraph 27- If a tree is leaning over into the public domain, one may cut enough to allow for a camel to pass with its rider. The same would apply even if someone wants to create a protrusion into the public domain above the height of a camel and its rider, and no one can stop him. All the more so would this be true in an alleyway. One cannot, however, make a bridge from one house to another because it creates darkness for the people in the public domain or the alleyway. Even a single protrusion that darkens or is used to pour items in middle of the road would be prohibited.

Paragraph 28- If Reuven had a fig or branch leaning on to Levi’s upper story, which prevents Levi from cleaning his roof, Levi has the right to cut the branch that is impeding him.

Paragraph 29- If a tree is standing on the border of two properties, the two parties would split the fruit, even if it leans into one of their fields.

Paragraph 30- If Reuven dug a pit and went down and discovered the roots of Shimon’s tree in his pit, he may cut and dig and the wood belongs to him. If the roots were within 16 amos of Shimon’s tree, the roots belong to Shimon and Reuven can cut them and give them to Shimon. If Reuven does not need to dig a pit and Shimon’s roots entered his field, Shimon can push them down three tefachim so that the roots do not interfere with the plow. Shimon may cut any root that is found within the three tefachim. He does not have to concern himself that Reuven’s tree may dry up, because Shimon is digging in his own property.

Paragraph 31- If a party wants to create a water hole to soak flax next to another’s herbs, in which case the water from the hole would be absorbed in the ground and go and ruin the herbs, or if he planted leek next to another’s onions, which ruins the onions’ taste, or if he planted mustard next to a bee’s nest, in which case the bees will eat the stalks and the honey will be ruined, or any similar case, the party is not required to distance the amount necessary to avoid damage. He must, however, distance the flax hole from the herbs, the leak from the onions and the mustard from the bees, three tefachim or a drop more so that he does not damage with his own hands. The same applies to any similar case where the damage does not occur at the time of action but occurs at a later time, and the victim has the burden of distancing himself. Paragraph 32- If one had a tree in his field and close to another’s pit or if he is coming to plant a tree, the pit-owner cannot stop him and say the roots of your tree will enter my pit and cause me a loss, because this a damage that comes on its own at a later time. At the time of planting, the tree did not damage him. Just as the pit-owner was able to dig in his own field, so too the tree-owner may plant in his own field.

Paragraph 33- If in one of the foregoing cases a party made something close that he was required to place at a distance, and he caused damage, there are those who exempt him from paying while others obligate him to pay.

Paragraph 34- If someone created a threshing floor, set up a bathroom or did any work with dust and dirt or something similar in his own possession, he must distance the amount required so that the dirt, the smell of the bathroom and the dust does not reach another’s property and cause damage. Even if the wind assisted at the time he was doing his work and carried the dirt, pieces of flax or chaff or something similar until it reached another’s property, he would be required to distance so that the materials do not reach and cause damage, inclusive of a common wind, because all of these cases have the status of one who damages with his arrow. Although he is required to distance such amount, if a common wind carried the chaff or dirt and damaged, he would be exempt from paying because the wind assisted in the damage.

Paragraph 35- In all the aforementioned cases where we require distancing, if one does not distance and the other party saw and was silent, such other party has waived his rights and cannot later require him to distance. This assumes that he saw him waive his rights, such as where he assisted the damager immediately or he told him to make the item or he saw the damager operating next to him without any distance and he was silent and did not object. In all these cases, the damager would obtain rights. ''See earlier 154:12. This is the appropriate way to rule, notwithstanding the fact that there are some who say one needs three years and a bona fide claim.''

Paragraph 36- When is this true? With respect to all damages other than these four: smoke, bathroom smell, dust and anything similar and ground vibration. In all of these cases one cannot obtain rights. Even if the victim was silent for many years, he can change his mind and force the damager to distance ''even if the damager performed the activity without distance before the damaged item was in existence. If they both acquired ownerless property, however, whoever comes first would obtain rights and the second party has no power to object.'' Similarly, in a case of damage-by-sight where a partition is required, such as a partnership-courtyard that is legally supposed to be divided, each party can force the other to build a wall in a middle so that one does not see the other while he is using his share. Given that they are automatically damaging each other without performing any action, neither party is able to obtain rights. Even if the property stood many years without a partition, one party can force the other one to create one at any time. Why are these damages different than all other damages? Because a person cannot tolerate these damages and there is a presumption that he would not waive a permanent damage. If one party made a kinyan on a waiver or he sold or gifted a waiver, the party cannot retract.

Paragraph 37- The aforementioned smoke is only where it is constant, such as the ovens of bakers or potters or something similar. With respect to an oven that an individual uses to bake bread or a kirah-stove, because it does not produce smoke most of the day, it is not considered constant. If it does produce smoke most of the day, however, it has the status of an oven of bakers and potters. If the other party sees the oven and is silent, he has waived his rights and can no longer object. He does have the right, however, to initially object, even if the smoke is not constant. There are those who say that even initially one cannot object to a smoke that is not constant and this seems to me to be the correct way to rule. Even constant smoke is only an issue where the smoke reaches the other’s property with a standard wind. If the smoke can only reach the other property with an abnormal wind, however, the damager would not be required to remove the smoke. Even if the case of standard wind, smoke is only a problem if it damages people. If it does not damage people, however, even if the smoke reaches the other’s home and blackens his wall, once the other party has seen the smoke and been silent, he was waived his rights and can no longer object. He may object initially, however.

Paragraph 38- The aforementioned bathroom refers only to their bathrooms that were on the ground and exposed. With respect to our bathrooms that are covered in ditches, however, if a person saw and was silent, he has waived his rights and can no longer object. ''He can object initially, however. If Reuven and Shimon had a partnership in a bathroom and the ditch goes into Levi’s courtyard and Reuven and Shimon want to split up and make two bathrooms, Levi has the right to object.'' Paragraph 39- If someone is established as one who works in blood, carcasses or something similar, and ravens or something similar come to consume the blood, and they bother others with their voices or chirping or if they ruin fruits on a tree when they come and sit on the trees with blood on their legs and such other person is pedantic or is sick in that this chirping damages him or his fruits are ruined from the blood, the individual is required to abandon his work or distance enough that no damage will result from it, because this damage is similar to that of a bathroom or something similar, which someone cannot obtain rights to. The same applies to any great damage that a person cannot handle.

Paragraph 40- The case of members of a courtyard or alleyway where one becomes a craftsman and nobody objected, and they later want to object, is discussed in the Siman following this one.

Paragraph 41- Any matter where it is known that the objector is unable to handle it, although others are able to handle it, one would not obtain rights against such an objector.

Paragraph 42- This that one cannot obtain rights on smoke and bathrooms is only where the damager is performing these activities on his property. If he created and established a bathroom on the other’s property with an entrance to the damager’s house or if he made a bathroom in his own property with a trough going to the other’s property, however, because he has taken possession of the actual land, he has a presumption of ownership and if he claims he purchased it he would be believed with an oath. Nevertheless, he must cover the bathroom or trough so that that the smell will go away, notwithstanding the fact that he has obtained rights without a covering. If he does not remove the smell, he would not obtain any rights. Even if he were to offer to remove the bathroom and replace it with something else, he does not have that right, because he has only theoretically obtained rights to the bathroom and because he did not actually obtain bathroom rights he does not have rights to anything else. There are those who say that because he has obtained rights to the actual land, it is considered his to do whatever he wants with it so long as he does not damage the other party.

Paragraph 43- If someone had established an activity that one could obtain rights on, such as opening a window, passing through water or not distancing the required amount, and the damager claims the other party told him to do it, waived his objection after observing the activity or recognized the damage and did not object, and the victim claims he only saw it now and did not know earlier or that he did object when he first saw and the damager said he would distance or close it up and then kept pushing him off every day in order that the damage become permanent, or any similar case, the victim would have the burden of proof. If he does not bring proof, the damager would take a heses oath and be exempt.

Paragraph 44- If someone had established an activity that one could not obtain rights on, such as smoke, bathrooms or something similar, and the damager claims that he acquired the rights from the victim, the damager has the burden of proving he acquired such rights. If he does not bring such proof, the victim would swear a heses oath that the damager did not acquire from him and the damager must remove his damage. ''We mentioned above in 154:19 that one who comes via a gentile has the status of a gentile with respect to damage that results automatically. With respect to the damages that are mentioned in this Siman, however, where a person has to distance because he is damaging with his hands, the rights of a gentile would be of no effect to allow one to damage with his hands. If two neighbors live together and one of their homes was breached and because of that thieves can enter into the other’s home, and such other party says to close of his house or sell it to others because you are causing me damage, there are those who say he is in the right and the first party must fix the damage. There are those who disagree because it is not considered the first party’s arrows. Similarly, if the party did not rebuild and damage occurred, the first party would be exempt according to the Rosh.''