Siman 153

There are chazakot that do not pertain to the body of the land itself, but rather a chazakah of usage in the domain of one's fellow. For example, if one extended a projection, which is a board or a beam protruding into the domain of his fellow, and the owner of the projection makes use of it; or the extension of a gutter or a water-spout into the domain of his fellow so that the water pours into the domain of his fellow; or the placing of a ladder in the courtyard of his fellow so that he may ascend the ladder to repair his roof, and other similar chazakot such as these, which will be explained in this siman. And there is a type of chazakah where one does nothing in the domain of his fellow, but rather in his own domain, only that by this he damages his fellow with the damage of sight, such as opening a window in his wall toward the courtyard of his fellow and the like, which will be explained in siman 154. And similarly, there is one who does something in his own domain and ruins the land of his fellow, such as digging a pit in his own domain near the boundary of his fellow and ruining his fellow's land, or planting a tree near the boundary of his fellow and the like, which will be explained in siman 155. And in all these types of chazakot, if he established a chazakah in them, it is a valid chazakah and his fellow cannot remove him. And regarding the damage of sight, even though there are some of our teachers who hold that there is no chazakah for the damage of sight and he can always compel him to close his window, we do not rule accordingly, as our teachers the authors of the Shulchan Aruch wrote in siman 154, section 7.

Our teachers, the Rishonim, disagreed regarding all of these chazakot, whether they require three years and a chazaka accompanied by a claim as in the chazaka of lands or not. The opinion of the Rambam, the Ramban, and the Geonim is that it is not required; rather, immediately upon doing so in the presence of his fellow, and the damage became clear to him, he waived his right, and this one acquired his chazaka by reason of mechila. The opinion of the Rashbam, Rabbeinu Tam, the Tosafot, the Rosh, and the Tur is that it requires three years and a claim that he sold it or gave it to him, as in the chazaka of lands. On the contrary, in the chazaka of lands, he establishes a chazaka even not in his presence, as has been written in siman 143, but in these chazakot, it is not a chazaka at all if not in his presence, since he did not know to protest, whereas regarding land there is a report, as has been written there [it appears to me]:

The decision of our teachers, the authors of the Shulchan Aruch, is not clarified. Our teacher, the Beit Yosef, in his great work, brought the two opinions and did not decide. In the Shulchan Aruch, he wrote the wording of the Rambam as is his way. Our teacher, the Rema, in section 2, emended the words of the author with this opinion that three years and a claim are required. In section 16 and in siman 154, section 7, he wrote that regarding a chazakah of three years there is a dispute. In siman 155, section 35, regarding the chazakah of nezikin, he decided that we do not require three years. There is one who says that his intention was to decide thus in all matters, and he revealed his opinion at the end of all the subjects, and his intention was for all the preceding simanim [Taz]. And there is one who says that only there did he decide thus because he is acting within his own property and the damage reaches his fellow automatically. But regarding a ledge and the like in this siman, where he uses the property of his fellow, and likewise regarding damage of sight in siman 154, where he damages him with his sight and benefits from the light of his fellow and prevents him from building opposite his window, it is also like using the property of his fellow and requires three years [Sma]. The reason is that since there is a dispute in this, it is a legal doubt and the burden of proof is on the claimant. Therefore, in this siman and in siman 154, the other is called the possessor and can hinder him for up to three years, and in siman 155, he is the possessor and does not need three years. Or it is possible that in this siman and 154 he did not decide at all and it is a legal doubt and whoever is stronger prevails [Shach], because both are equal in their possession: the other is called the possessor because he performs an action in his courtyard, and he is also called the possessor in that which he already did. Likewise regarding damage of sight, and since both are equal in their possession, they are as if both are not possessors. It was explained at the end of siman 139 that in a legal doubt in such a case, whoever is stronger prevails, which is not the case in siman 155, where he is certainly the possessor and the other is the one seeking to extract. And this appears to be the primary view.

If there is a custom in the city regarding all these chazakot, one follows the custom. This applies specifically to a chazaka without a claim, but rather based on the reasoning of mechila; in this, one must follow the custom, for presumably his intent was according to the custom. However, in a chazaka with a claim, where he claims "you sold it to me," custom is not relevant, since according to his words, he sold him this chazaka. Therefore, regarding the distancing of damages in siman 155, where we rule that three years and a claim are not required, the dayan must know the custom of the place in this matter. If the custom of the place is not known, or in a place where there is no custom, one follows the law [it appears to me].

One who seeks to extend a protrusion from his wall into the airspace of his fellow's courtyard, even a protrusion of any size, the owner of the courtyard may prevent him, for he damages him through surveillance at the time he hangs things on it and uses it and looks into his courtyard. And even if he recessed the wall into his own property [Netivot HaMishpat]. And even if he says, "When I use it, I will turn my face away and I will not look into the courtyard," nevertheless, who can watch over him? And even when he looks into the courtyard, he will excuse himself that he was forced to do so because he feared lest he fall when he turned his face. And when he protested against him and he has not yet managed to remove it, and the owner of the courtyard left it of his own will until he removes it, the owner of the protrusion may not use it as long as it has not yet been removed, but the owner of the courtyard may use it. And when it is not a tefach, the owner of the protrusion cannot remove it. And if he extended the protrusion and the owner of the courtyard did not protest immediately when the damage became clear to him and he remained silent, and according to the assessment of the beit din it became clear to him its damage and he waived it [Netivot HaMishpat], behold, the owner of the protrusion has established a chazakah and may use it, and even if he has not used it until now, since he established it through his silence and waiver, and he prevents the owner of the courtyard from using it. And there are those who say that all these chazakot require three years and a claim as has been written, and according to this view, as long as he has not established a chazakah of three years and he protested against him and he has not yet removed it, it is forbidden for the owner of the protrusion to use it and the owner of the courtyard may use it as has been written [Tur].

Even when one has established a chazakah with a projection, there is a distinction regarding the width of the projection. How so? If the projection was a tefach, such that it protrudes a tefach into his fellow's courtyard and is fit for use to hang objects upon it, he has also established a chazakah in the airspace of the courtyard beneath the projection. If the owner of the courtyard wishes to build beneath the projection in a manner that would nullify its use, the owner of the projection may prevent him, and he must leave him airspace according to the nature of the use; furthermore, it is forbidden to build right next to the projection. If the projection does not have a tefach, even though he established a chazakah in it and the owner of the courtyard cannot remove it, nevertheless, he has not established a chazakah in the airspace beneath it. At any time the owner of the courtyard wishes to build beneath it, the owner of the projection cannot prevent him, even if through this the use of the projection will be nullified [Taz]. And some say further that regarding a projection that does not have a tefach, chazakah is of no effect at all even if he held it for several years, even regarding the projection itself, because it has no importance; the owner of the courtyard may remove it whenever he wishes. Even when he did not protest and allowed him of his own will to use it, he [the courtyard owner] may use it and not the owner of the projection if he prevents him. If the projection's width was a tefach along the length of the wall and it extended into the airspace of his fellow's courtyard four tefachim, or if it protruded a tefach into his courtyard for a length of four tefachim along the wall, and he did not protest, he has established a chazakah in four by four, and he has the power to widen it up to four by four. The reason is that since he allowed him a length or width of a significant place, he also consented that he may widen it or lengthen it, for a significant place is not less than four by four. He cannot widen it more than four even if it extended into the courtyard a great deal; for example, if he established a chazakah in a projection protruding a tefach for a length of ten tefachim, or a length of a tefach protruding ten tefachim, he cannot widen it according to its protrusion or according to its length, but only up to four and no more. Regarding the airspace beneath the projection, there is also a distinction: if its width is a tefach, one need only leave him airspace according to the measure of his use, but when it is four wide, one must leave him ten tefachim of airspace. He cannot build beneath it unless there will remain for the owner of the projection ten tefachim of airspace beneath the projection so that he may use the projection for a significant use. If he brought out a projection of a tefach for a length of three tefachim, or vice versa, he cannot widen it to the measure of its length, but it remains as it is, for less than four has no significance such that he would have the power to make its width like its length or its length like its width. And when the owner of the projection has a chazakah, he may go down into his [the neighbor's] courtyard and use the projection [Tur].

Even though it has been explained that if the protrusion was less than a tefach, the owner of the courtyard has more rights than the owner of the protrusion, this is when the owner of the wall made it. However, if the owner of the courtyard wants to fix a protrusion into the wall of his fellow, the owner of the wall may prevent him, and even with a protrusion of less than a tefach, because of the damage to the wall. And it is forbidden for him even to drive a nail into the wall of his fellow without his knowledge, unless he drives it between the bricks. And if he made a protrusion with the permission of the owner of the wall, if it is less than a tefach, he has no chazakah, and with more than a tefach, he has a chazakah and the owner of the wall cannot remove it. And just as we wrote regarding the chazakah of the owner of the wall, so too regarding the chazakah of the owner of the courtyard [as it appears from the words of the Ri of Barcelona in the Tur, and in this no one disagrees with him, see there and examine carefully]. And the owner of the courtyard may extend protrusions in his courtyard until close to the wall of his fellow [Shach].

There is one who says that this matter, that the owner of the wall does not have the ability to extend a protrusion into the courtyard of his fellow, is only in a courtyard where he has neither a doorway nor a window. However, in a courtyard of partners where each one has doorways and windows, or even in the courtyard of his fellow but where this one has already established a chazakah by opening a door or a window into his courtyard, if he wishes to extend a protrusion in front of his doorway or window to make use of it, the owner of the courtyard cannot protest against him. For since the entire primary reason is due to damage of privacy, and behold, even without this he sees into his courtyard from his doorway and window, and what additional damage will he add with this? And also, he cannot build beneath it even without the protrusion because of his doorway and window. And so it is proper to rule.

Those projections that extend from a roof of tiles, like our roofs which are sloped and extend the projections into the domain of one's fellow [as is evident in the Sma who wrote "to extend" etc.] for the sake of preserving the wall from the rain, such as the protrusions of our roofs called "kapes," the owner of the courtyard cannot protest against him, for even if the rainwater falls upon the wall it will go to his courtyard, and this is a case of "this one benefits and this one does not lose." And he does not have a chazakah, for the general rule is that in anything where the challenger cannot protest, the one in possession does not have a chazakah. Therefore, when the owner of the courtyard wishes to build up to the proximity of his wall, he must remove them entirely, for it is the way of the world to allow one's fellow who dwells beside him to extend his projection into his courtyard until the time he needs to build [Sma]. And in our countries, there is no building whose roof does not protrude further so that the rains do not fall upon the wall, and anyone who comes to build on the boundary must bring it into his own space by the amount of the protrusion, or his neighbor gives him permission to extend the protrusion into his own space, and there is a chazakah for this. And any building that stands for three years has a chazakah regarding the protrusion, and such is the simple custom.

One who wishes to extend a tzinor over the courtyard of his fellow so that the water will pour there, and the tzinor protrudes beyond the roof, or to make a mazhila—which is a large tzinor placed over the entire roof or along the length of the wall so that the water will crawl and descend into the courtyard of his fellow—and until now he did not have a chazaka that his water should fall even by dripping [as is evident from section 12], the owner of the courtyard may prevent him. And if he did not protest immediately when its construction became known to him, this one has established a chazaka in his tzinor or in his mazhila. And it has already been explained that some say we require a chazaka of three years and a claim. And after he has established a chazaka, just as the owner of the courtyard cannot remove his tzinor, so too if the owner of the tzinor wished to remove it or to block it, the owner of the courtyard may prevent him; for just as the owner of the tzinor established a chazaka to pour his water into the courtyard of this one, so too the owner of the courtyard established a chazaka that the water of the roof of his fellow should come to him into his courtyard and he may use the water. And this is specifically as long as the roof exists, but if the owner of the roof wished to make an aliya from the roof or another building and the rain could no longer [fall] into the courtyard of this one, the owner of the courtyard cannot prevent him [Sma]. And likewise, if the owner of the roof demolished the tzinor in order not to make another, and this one saw and remained silent, he has lost his right, for it is an immediate mechila, even according to those who require a chazaka of three years, as I wrote in siman 154 regarding the blocking of a window. And likewise, if the owner of the roof removed the tzinor and said to the owner of the courtyard that he waives his chazaka, or if he did a recognizable act showing that he waives it to him [the Gra], it is an immediate mechila and he cannot restore it again. But if the wall fell and stood thus for many years, he may return and build whenever he wishes with the tzinor. And likewise, if the owner of the courtyard did an act showing that he does not want the tzinor, and this one saw and remained silent, it is an immediate mechila [ibid.].

The owner of the courtyard cannot make any change to the tzinnur, nor can he tell the owner of the tzinnur to incline it to another side or to change it at all; and even if it is long, he cannot shorten it. This is specifically in a matter where there is an objection by the owner of the tzinnur according to the assessment of the beit din, even if he suffers no damage from this but merely a general objection. However, without this, we compel against the conduct of Sodom, provided that its waters flow well. But if the owner of the roof desired to uproot the tzinnur from this side and return it to another side, such that from there too the water will come to his courtyard, and it does not appear to the beit din that damage will reach him in his usage through this, or if it was long and he desired to shorten it or vice versa, and there is no damage in this to the owner of the courtyard, the owner of the courtyard cannot obstruct him, for he has only established a chazakah in the waters of the roof, and they are coming to him in any event. Also, the owner of the courtyard, even though he cannot change the tzinnur, nevertheless if he desired to build under the tzinnur or in front of it, whether it is of wood or whether it is of stones [Sma], the owner of the roof cannot obstruct him, for the tzinnur is not made for usage like a ziz that would establish a chazakah in the airspace beneath it, as it is only for the flow of water. And since the water flows well as it was, he has no right to obstruct him from building under it or in front of it, for he is able to receive the water in a vessel or by means of a tzinnur that he will connect to the tzinnur of the owner of the roof so that they go far away. And since the owner of the roof has only the chazakah that the owner of the courtyard will receive his water, if the owner of the courtyard desires to receive them in a vessel or by means of a tzinnur, the law is with him.

One who directed the water from his roof onto the courtyard of his fellow and he did not protest against him, and he established a chazakah in this matter—either immediately according to the opinion of the Rambam, or in three years according to the opinion of the Tosafot—if the water drips from the entire length of the roof and he wished to collect them into one place and make a tzinor, he may do so. And similarly the reverse: if they were coming through a tzinor from one place and he divided them across the width of the wall and made them dripping, he may do so, and the owner of the courtyard cannot protest against him, provided that the location of the tzinor is not in the path where they walk to the houses [it appears to me]. And even if he came to build upon his roof a type of hut, which is a lodging for field guards that has no roof and the walls go at a great incline until they touch one another, and the tzinor or the edge of the hut itself when there is no tzinor from where the water descends to the courtyard is not higher than it was, only that because the hut is greatly inclined the water descends quickly to the courtyard of his fellow, he has the right to do so; for behold, the water of this one has established a chazakah to descend to the courtyard of his fellow, and in anything where there is no damage to the owner of the courtyard, it is within his power to make the descent of the water in any manner he wishes. But a roof owner who comes to raise the location of the pouring of the water so that the water will descend from a high place into the courtyard, the owner of the courtyard may protest against him, for this certainly adds to the damage, as when they descend from a high place it descends to the courtyard with noise and slightly ruins the ground. And so too anything similar to this where he adds a bit of damage, such as making the dripping drops very close together by covering the roof with tree branches so that the drops will be close and frequent one after another, and it will not be comfortable for the owner of the courtyard to use the space under the roof because of the frequent and close drops falling on his head. However, there are those who permit raising it and making the drops close together, for they hold that even if there is a bit of additional damage, since he established a chazakah in this, it is not within the power of the owner of the courtyard to protest against him in whatever manner he desires to do on his roof. But if he comes to diminish the airspace under the tzinor, such as if he wants to lower the tzinor, the owner of the courtyard may prevent him, for behold, the owner of the roof did not acquire the airspace, as the owner of the courtyard can build under it as has been explained, and when he lowers it, he will diminish the airspace and he will not be able to build under it as much.

Even though we have said that one may turn dripping water into a stream, this is within the domain of his fellow when he has a hazakah. However, if he wished to do so in the public domain, where the water was dripping from his roof and he wished to direct them through a pipe or a gutter so that they would stream, the members of the public domain may prevent him. For water that streams through a gutter obstructs the passersby in this place, as they cannot walk here and are forced to go around. Furthermore, they damage the loads of those passing through there, as the flow descends and ruins the load. This is all the more so if the water flows into the drainage pipe of homeowners, for the buildings could be ruined from the abundance of water. And it is all the more so if he had no right at all for his water to descend into the public domain, for it is forbidden for him to act so that his water falls into the public domain even as dripping water. The same applies to one of the residents of an alleyway who wished to direct his wastewater into the alleyway and it damages another, even if he is not one of the residents of this alleyway but rather his wall stands next to this alleyway and the wastewater could damage his wall; even if they do not reach his wall now, for he may say that eventually the water will overflow and ruin the wall [Levush], even though the owner of the wall has no right in this alleyway into which the wastewater descends. The general rule of the matter is that it is forbidden to make any change regarding one's water in a matter that has the potential to damage any person, when he does not have a hazakah over him.

An incident occurred regarding Reuven, who had a house next to the courtyard of Shimon and had a chazakah that the water from his roof would drip into the courtyard of Shimon. Reuven's house fell and he did not rebuild it immediately, and the place remained a ruin. Subsequently, Shimon built a house in his courtyard adjacent to the boundary of the ruin, and Shimon purchased from Reuven that Reuven would receive the water from Shimon's roof into his ruin in any place he desired. Afterwards, Reuven rebuilt his ruin, and consequently, the water from Shimon's roof dripped onto Reuven's roof. What did Reuven do? He returned the water from his roof via gutters to Shimon's courtyard as before, and through those same gutters, the water from Shimon's roof also fell, falling into his courtyard together with the water from Reuven's roof. Reuven's claim was that with the falling of his house he did not lose his chazakah, as is written in section 10. Shimon claims that not only does he not have to receive his own water into his courtyard, since he purchased from Reuven that they should fall into his domain, but even Reuven's water he does not have to receive now, for Reuven lost his chazakah at the time Shimon purchased from him that his water would fall into his domain, and certainly he does not have to receive Reuven's water. The Rosh, of blessed memory, ruled that the law is with Shimon, and Reuven is obligated to receive his own water and also Shimon's water in a manner that they do not return to Shimon's courtyard. Similarly, Reuven who had a chazakah that his water would fall into Shimon's domain, and Reuven accepted via a kinyan to remove his water from Shimon's domain, the kinyan is valid and this is not a kinyan devarim, for he sold him the right in the courtyard that he had to pour his water. And even if Reuven died, we compel the heirs to remove the water from Shimon's courtyard [Sma]. And Reuven who had a chazakah that his water would descend upon Shimon's roof, and Shimon wanted to raise his roof, he must bring the roof into his own domain by the amount of the placement of a gutter in the original location, so that Reuven does not lose his chazakah.

Even though we have said regarding the chazakah of the descent of rainwater that the owner of the roof may change as he wishes from dripping to pouring and from pouring to dripping, as written in section 12, this is because there is no increase of water beyond what was there. However, when there is an increase of water, such as one who established a chazakah in the courtyard of his fellow to pour the water of one laundry therein, he cannot pour the water of more laundries, and they may protest against him if he comes to pour two laundries, and certainly more. Similarly, he cannot change from water to water; for example, if he established a chazakah for rainwater, he shall not pour laundry water there, which is worse and unfit for use and ruins the ground. And in similar matters in this regard, the beit din must understand and contemplate that he is only able to change in a way that no recognizable damage will reach his fellow, and it is impossible to explain everything in writing. And all this is when he established a chazakah to pour into the domain of his fellow. But one who established a chazakah to pour wastewater in his own domain and the water goes through a drain that passes through the courtyard of his fellow, even though he only established a chazakah for one thing, he may pour whatever he wishes there, since he pours in his own domain and the drain is enslaved to him to receive his waters that flow through there, and there is no difference between a little and a lot, for such is their way, that all of them are absorbed or flow through there [Levush]. And the primary permission does not depend on the fact that he pours into his own domain; rather, the primary permission is because the matter of the drain is that many courtyards make a drain, which is a large pipe that goes a long distance, and when it is damaged, they all repair it. Therefore, even if they specified at the time of its construction that it is for rainwater, they may also pour laundry water, for the drain belongs to the partnership and they all pour in their own domain and the drain flows the water to a distance. But one who made a drain to the courtyard of his fellow and established a chazakah in it by reason of waiver or sale, it is forbidden for him to pour even in his own domain more than what he spoke with him, for perhaps he did not waive or did not sell more [Netivot HaMishpat]. And that which we said, that he established a chazakah in the courtyard of his fellow to pour there, this is also when some action was done that indicates a chazakah, such as when a permanent thing was made there like a drain or a pipe, and certainly when there is a writing between them [it appears to me]. But with mere pouring onto the ground of the courtyard without a pipe or drain, there is no chazakah in this at all [ibid.], unless he brings witnesses that he acted with his permission, that they agreed between them that he should pour into his courtyard.

Our Sages, of blessed memory, said that a large ladder has the power of chazakah and a small one does not have chazakah. And what is a large one? Any that has four rungs. Therefore, one who places a small ladder that does not have four rungs against his wall that stands on his fellow's boundary, and he placed the ladder in the courtyard of his fellow or his field and leaned it against his wall, and when he needs, he walks in the courtyard of his fellow and ascends his ladder to his roof to repair what is necessary, he has no chazakah. And whenever the owner of the courtyard wishes, he may build next to the ladder and nullify its use. But if he fixed it with a nail, even a small one has chazakah. And if it was a large ladder that has four rungs or more, he has established chazakah, and when the owner of the courtyard comes to build next to it and nullify it, the owner of the ladder may prevent him until he distances the amount that he would be able to ascend and descend it, for he has established chazakah to place a ladder in his domain. Therefore, when the owner of the roof comes to place a large ladder in the domain of his fellow, his fellow may prevent him so that he does not establish chazakah in it. But if he placed a small ladder, he cannot prevent him, for they say to him: you have no loss in this; whenever you wish, you may remove it. Thus wrote the Rambam in chapter 8 of Shechenim, and our teacher, the Beit Yosef, transcribed it in section 13. And the Tur disagrees with him, for how can he use what belongs to his fellow against his will? And some say that the reason is because "this one benefits and this one does not lose," and when he wishes to build, he shall remove it. And this is not sufficient, for you have no greater loss than this, that he walks in his courtyard and harms him with vision. And it appears to me that therefore the Rambam was precise in his wording to say that if he placed a small ladder, he cannot prevent him. And why did he not say that to place a small ladder he cannot prevent him, as in the beginning of his words regarding a large ladder, which would be the statement and its opposite? Rather, certainly if he comes at the beginning to place it, or immediately when he becomes aware of this, he can prevent him from entering his courtyard at all, and all the more so from a projection of any size, which he can prevent as has been explained. But when he placed a small ladder in the courtyard of his fellow and his fellow did not prevent him from entering his courtyard, as he is not particular about this, but only comes to force him to remove it so that he does not establish chazakah in it, they say to him that for this reason you cannot prevent him, because this has no chazakah. But with a large ladder, even for this reason he can prevent him. But certainly when he comes to prevent him initially from placing it, or when he becomes aware of this, because of his entry into his courtyard, he can prevent it. [And he was forced to this, for if not so, why is there no chazakah for a small ladder? Let its chazakah be because of his entry into his courtyard, as indeed the Ri ruled so, as is written in the Tur; and according to our words, it is well.]

A wall that is between Reuven and Shimon, if they were partners in it, both of them may use it; this one digs into it from this side and inserts his beams, and that one digs into it from that side and inserts his beams. And even though one inserted and the second did not insert for a long time, nevertheless he may insert when he wishes, and this is not a waiver, for he did not yet have a need for this, as such is the way of neighbors since half of the building is his. And no one may overburden the wall except according to the custom. And if the wall belongs to Reuven alone, Shimon cannot use it without the will of Reuven.

A wall known to belong to Reuven alone—if Shimon dug into it and inserted one beam and Reuven did not protest against him, Shimon has established a chazakah in the location of this beam. And even if it was small and Shimon wishes to replace it with a large and thick beam, he may replace it, and we do not say: "Behold, he only established a chazakah in this wall for a light load, and how is he permitted to build a heavy load?" For it is established by the sages that anyone who requests from his fellow that he give him permission to build in his wall does not request regarding this specific beam, but rather requests generally according to the strength of the wall's durability, and that which he did not place a heavy load upon it until now was because he did not need more then [Levush], unless Reuven brings proof that from the beginning they stipulated thus, that he should not place a heavy beam in it. And the measure of the chazakah of a ladder and the driving in of beams is as has been explained, for some say that we require three years and a claim, and some say that immediately when his damage became known to him and he was silent and did not protest, it is a chazakah even without a claim, solely by reason of mechilah. And even according to this opinion, if the beam was for the building of a temporary sukkah, for all of thirty days he has not established a chazakah in it ordinarily, for Reuven says: "I did not waive at all, and I only allowed you because it is a temporary building." And after thirty days he has established a chazakah, for there is no temporary building longer than thirty days. And if it is a sukkah for the festival, he has also not established a chazakah all seven days of the festival when they are added to the thirty days, and after the festival he has established a chazakah when thirty days have passed, and the days of the festival join with the thirty days [it appears to me]. And if he attached the head of the beam to the wall with clay, he has established a chazakah immediately, specifically if Shimon brings proof that Reuven assisted him in the attachment of the clay or saw and did not protest, for if not so, Reuven can say: "I did not know of this at all," and he would be believed, for the wall is in his chazakah and the burden of proof is on the claimant. And some say that regarding a sukkah for the festival, since it was made for a mitzvah, once the festival has passed and he did not protest against him immediately, it is a chazakah and we do not require thirty days according to this opinion [Beit Yosef and Taz]. And likewise according to this opinion, when Shimon has established a chazakah in this wall with one beam, he cannot establish a chazakah with a second beam, since the reason is because of mechilah, behold we did not see that he waived to him also regarding the second, and it is upon him to bring proof. And it is not similar to what I wrote that he can increase the weight of the beam, for that is regarding this beam itself and not another. But according to those who say that one needs three years and a claim, if he established a chazakah with one beam, he can insert many beams, for presumably there is no partial acquisition [Sma] and he did not need the rest of the beams until now.

And even according to this opinion that the chazakah is immediate due to the reason of waiver, in what case is it said that he cannot establish a chazakah for the rest of the beams? When Shimon comes with a claim of waiver and admits that he is not a partner in the wall. But if he claims that he is a partner in it, having purchased half the wall from Reuven, since he made use of one beam, he is believed and may use the whole of it after he takes a shevuat hesset that he is a partner in the entire wall. And the reason is that, in truth, the embedding of a beam constitutes a chazakah on the body of the wall, like the consumption of fruit in a field, and therefore he is believed to claim, "It is purchased by me for half." Nevertheless, when he claims by reason of waiver, he is not believed with a migo that he could have said, "I am a partner in it," for we certainly believe him in what he says, that he waived it to him, and from this itself we are witnesses that since it is only a waiver, he certainly did not waive it to him except for one [Bach and Taz]. And some say that if he truly claims explicitly that he waived it to him for many beams, he is believed by reason of migo. But it does not appear so from the poskim, for it is like a migo in the presence of witnesses, as a person does not waive much.

And there are those who disagree with the essence of this law and hold that the embedding of beams is not proof regarding the acquisition of the wall. Therefore, if specifically Reuven has no clear proof that the wall was his, in this case Shimon is certainly believed that he is his partner in the wall, since Reuven also has no clear proof. But if the wall is held in the possession of Reuven, and Shimon himself admits this, that initially it belonged to Reuven but he comes with a claim of chazakah, the embedding of beams is not proof regarding the wall itself even with a chazakah of three years, unless he made a ceiling upon it. Then there is proof that he acquired half the wall from him, and Shimon is then believed with an oath that he acquired half the wall from him, for if it were not so, he would not have allowed him to make a ceiling, and it would be a chazakah either immediately or in three years and a claim, according to the opinions that have been explained. Nevertheless, without an oath he does not take it, since Reuven denies him with certainty. And even according to those who hold that the embedding of beams constitutes a chazakah, it is not a chazakah regarding the place of the wall when it falls; rather, as long as it stands he has half the wall, and similarly to divide the stones of the wall when it falls, but not regarding the place [so it appears to me to explain the words of our teacher, the Rema].

Reuven established a chazakah by inserting beams into a wall known to belong to his fellow, and the owner of the wall admits to his chazakah, and the wall fell and the owner of the wall returned and rebuilt it—Reuven may not insert [beams] into the new wall, for his chazakah exists only as long as the wall stands. And even according to the opinion that three years and a claim are also required, the law is the same [it appears to me], for he did not acquire the place of the wall, as I wrote in the previous section, and consequently his acquisition exists only as long as the wall stands. Furthermore, even if the wall began to collapse and Reuven wants to repair and strengthen it, the owner of the wall can prevent him, for his chazakah is only in the wall as it is. And if he established a chazakah with a ceiling and plaster, some say that his chazakah is forever even when it falls, and he can compel him to rebuild it anew in partnership, and certainly he can repair it; only if they do not wish to rebuild do they divide the stones, and in the ground he has no portion, as has been explained. And some say that with a chazakah by means of a ceiling, he has a chazakah in the place of the wall as well [both opinions are in the Tur].

A wall known to belong to Reuven, and his beams were embedded within the wall, and on Shimon's side Reuven made hollowed-out places to insert the heads of the beams, and even though he also prepared the planks necessary for this [Bava Batra 6a], nevertheless Shimon has not established a chazakah in this to insert beams into them. And he cannot claim that he purchased half of the wall from him and became a partner with him, for if not so, why did Reuven make preparations on his side for the insertion of the beams? For Reuven can claim: I dug these places from your side so that they would be ready for the time when you purchase from me and will need to insert the beams, so that my wall will not collapse then when you dig. And since Shimon currently has no usage of the wall, he has no chazakah.

Reuven who built the foundation of his wall and the foundation protrudes further than the walls of the structure, and that protrusion enters into the courtyard of Shimon, and Reuven established a chazakah properly and with the claim that he purchased the land for the measure of the protrusion from Shimon, he has established a chazakah also above corresponding to the entire foundation up to the height of the sky. And if Reuven wishes to also bring the walls of his structure even with the foundation, Shimon cannot prevent him. And even though now the walls are not as wide as the foundation, nevertheless Shimon cannot say: "You only established a chazakah to build the foundation in my territory and not the walls," for Reuven can say to him: "I purchased the land from you up to the height of the sky, and the first time I built, I brought the walls into my own space, and now I desire to build them even with the foundation." Or, he can say that previously they were indeed even with the foundation, and afterwards I brought them into my own space, and now I want to return them to their place. And the reason is because this land is in the chazakah of Reuven; however, he must swear that he did not encroach upon the boundary of Shimon. Our teacher, the Rema, wrote that this is specifically in a place where there is no custom to widen the foundations beyond the walls, but in a place where there is a custom to widen them, as in our countries, he only possesses the foundation that he established a chazakah in, for presumably he only purchased from Shimon what was necessary for the foundation. And all of this is in a place where there are no witnesses or evidence, but when there are witnesses or evidence, they shall act according to their words.