Siman 155

In the preceding simanim it was explained that it is forbidden to do anything in the domain of one's fellow that damages him, for even damage of sight, although he acts within his own domain, nevertheless takes the light from the courtyard of his fellow and prevents him from building opposite the window once he has established a chazakah in the window. In this siman it will be explained that it is forbidden even to do things entirely within one's own domain that will thereby damage the ground or the air of one's fellow. However, there is a great principle in this: if at the time of doing the act the damage does not come immediately, but rather after a time once his actions have ceased, it is permitted to do this thing, for he is acting within his own property, and it is upon the damaged party to distance himself if he desires that the damage not reach him. But if this act damages his fellow at the time of its performance, this is like damaging with his own hand and it is forbidden to do so, for this is "shooting his own arrows." To what is this comparable? To one who stands in his own domain and shoots arrows into the courtyard of his fellow and says, "I am acting within my own domain," for they prevent him [the Rambam, chapter 10 of Shechenim]. And if he established a chazakah in this damage, he has established it. Regarding the measure of chazakah, some say that immediately when it becomes known to him that there is clear damage in this and he remains silent, he has forgiven him and this one has acquired his chazakah. And some say that it requires three years and a claim. Our teacher, the Rema, in section 35, ruled in accordance with the first opinion, and the reason we explained in siman 153, section 3; see there. And now we will explain the things that are forbidden to do because they damage immediately or it is possible that they will damage immediately:

The house and the upper story belonging to two people: the owner of the house may not make an oven within his house unless he has a height of four amot between the oven, the place where the fire rests, and the ceiling of the upper story, so that it does not burn the upper story. Thus the sages estimated, that the fire of an oven can cause damage up to four amot in height. And even with our ovens whose opening is from the side, this measure is also required [Sma]. The opinion of the Rashba is that it is not required. And some say that much more than four amot is required since the flame is very large in our ovens, and this is the opinion of the Rosh [Tur]. It appears that when the oven has a wide and sturdy smoke-rising chimney that goes out until above the roof, as in our days, certainly no distancing in height is required, for behold, the fire and the smoke go out into the air. But without a smoke-rising chimney, such as in the villages, when the oven is large one requires more than four amot, and when the oven is small, four amot is sufficient. A kirah also has the same measure as an oven, and some say that for a kirah a height of eight tefachim is sufficient [ibid.]. And likewise, the owner of the upper story may not set an oven in his upper story until there is a plaster floor of three tefachim beneath it, in addition to there being a height of four amot above it. And with a kirah, whose heat is not strong, a tefach of plaster floor beneath it is sufficient. If it is a bakers' oven, it must have four tefachim beneath it, and for a bakers' kirah, three tefachim, because they heat them extensively. But regarding height there is no difference, for the fire will not fly from them higher than four amot. And with our ovens, it is not relevant to give a measure for beneath them, for they have many tefachim even in the smallest of them. And our winter-house ovens do not require distancing above because the fire rolls through the sections of the oven until the smoke becomes cold above. And the small iron ovens in the winter houses, the fire is small and does not require much distancing [it appears to me]. And even though he distanced according to the stated measures, nevertheless, if the fire went out and damaged, he pays for what he damaged. And one should not say that if so, why did they give all these measures, let him do as he pleases and when he damages he will pay—for certainly one may not rely on the fact that he will pay, for perhaps he will not have that with which to pay; and furthermore, it is not good for a person to trouble himself and to sue in beit din the one who damaged him [Sma]. Therefore, the sages gave these measures, for it is probable that there will be no damage, and if despite this he is damaged, he shall pay him. And even though it will be explained in siman 418 regarding damage of fire that when he distanced the measure and it damaged he is exempt from paying, it is different there, for that is an occasional fire and what more could he have done? But with ovens and kirot, where they use fire constantly, even with all the distancings that were explained, if he is not properly careful it is close to damage and he must supervise exceedingly. And when he did not supervise, he is a negligent actor and is liable to pay [the Rif, chapter HaKones]. And even every person in his own house must distance according to these measures because of damage to the neighbors. And now, in every single place, a man from the government has been established to sweep the ash from the ovens and from the smoke-rising chimneys, and every person is obligated to be careful to clean them at the fixed time so that the fire does not catch in the ash. And if he did not clean them at the proper time and damage occurred through this, he is liable to pay. And if he called the cleaner and he did not come, the cleaner is liable to pay, for he is completely negligent [it appears to me]. And the people of the city can compel every man to guard his fire and the soot that comes through the ovens [Rashi, Bava Kamma 61b, s.v. "lo ya'amid"].

And similarly, the owner of an upper story who had in his upper story a storehouse of grain or of wine or oil, the homeowner cannot open beneath him a bakery shop or a dyers' shop, or make there a cattle stall, or bring in there types of herbs and the like from things from which much steam and heat rise, because the heat spoils the produce of the storehouse. And the same law applies even if in the room beneath the storehouse there are none of these things, but only in the room that is to the side of the storehouse, he may not open a window from this room to the room beneath the storehouse. And our Sages, of blessed memory, said that wine that is in the Land of Israel, since it is strong, the heat does not spoil it but even improves it; therefore, he is permitted to perform beneath it any work of fire that he desires. However, a cattle stall and anything that produces a foul odor he may not make, because it spoils the scent of the wine. And similarly, in a place where noise and vibration are harmful to wine, he must distance himself. And the general rule of the matter is that anything that is harmful to the merchandise in his upper story, the homeowner is forbidden to do. And not only when the homeowner had no shop at all until now, but even if he had a shop for other things, he is forbidden to exchange them for things that are harmful to the merchandise in the upper story, since the owner of the upper story preceded these things with his merchandise.

In what case is this said? When the storehouse preceded. But when these things preceded, and his shop was established as a cattle stall or for a baker and the like, and afterwards the owner of the upper story wanted to make a storehouse in his upper story, he cannot protest against him, for the damaged party must distance himself when he is not prior in the matter that is being damaged. And if the owner of the upper story revealed his intent that he desires to make a storehouse therein before the homeowner made the things that damage his storehouse—and not a revelation of intent with mere words, but rather through an action, such as if he swept and sprinkled his upper story or increased the windows therein in the manner that they do for a storehouse, and this one preceded and made an oven or a cattle stall and the like; or if the owner of the upper story began to store things that fire and stench do not damage, such as sesame seeds and pomegranates and dates and the like, and this one preceded and made the stall or the oven before he stored the wheat and the wine and the oil; or if the homeowner made a partition above it in his shop to separate between the shop and the storehouse, for then the damage is not clear—in all these there is a legal doubt whether the homeowner can do what he wishes or not. Therefore, ab initio, the owner of the upper story may prevent him; however, if he did it, he cannot remove it. And even though in every monetary doubt we grant the leniency to the defendant, and according to this, even ab initio why should he not do it? And indeed there is one who holds so; nevertheless, the opinion of the Rambam, of blessed memory, is that since from the Torah it is forbidden to cause damage to others, it is somewhat similar to a matter of prohibition, and therefore he should not do it ab initio [the Gra]. And just as the preparation is effective for the owner of the storehouse so that ab initio the homeowner shall not do something that causes damage, so too the preparation is effective for the homeowner, that if he prepared for a cattle stall, even ab initio he is permitted to do so even if the owner of the upper story preceded him in making the storehouse [Netivot HaMishpat]. And even according to the opinion that will be explained in section 27, that it is forbidden to do something that damages his fellow even though the damage is not prepared now, and according to this it would be forbidden for the homeowner to do something that damages the owner of the upper story even when he has not yet prepared for a storehouse—nevertheless, in the matter of a person's primary dwelling and his needs, such as a cattle stall and an oven, he does not have to prevent himself when the damage is not yet prepared [Taz].

Just as if the owner of the upper story has a storehouse of grain or wine and oil, it is forbidden for the homeowner to do something that damages it, so too if the owner of the upper story dwells in his upper story, it is forbidden for the homeowner to do something that is difficult for him to endure due to a foul odor or great heat, for indeed damage to his body is worse than damage to his property. And there are those who disagree on the matter, but in the Yerushalmi [chapter 2 of Bava Batra] it is explicitly stated according to the first opinion.

If the water from the upper story descends into the house when they pour in the upper story because the ceiling separating them is not roofed well, if there is no ma'aziva, which is a plaster of clay, and when they pour the water it descends to the lower one and damages him, he is obligated to remove his damage. And if there is a ma'aziva in which the water is absorbed and they do not descend immediately, but rather after some time they descend and damage, he is not obligated to remove his damage and it is upon the damaged party to distance himself, as has been explained in section 1. However, there is no fixed rule in this and everything is according to the matter, for if the water is minimal and ceases immediately, he is not obligated to remove his damage, even if a few drops drip afterward. But if there was much water and it damages him constantly through the ma'aziva, it does not help at all and he is obligated to remove his damage; and even if they do not fall immediately but rather after hours, it is also like damage by hand. [And what the Rema wrote in section 4, "even without a ma'aziva etc.," in the Mordechai it is not so, and so it is in the Darkei Moshe, letter 1; and delve into this.] And all this is regarding the wash water of the owner of the upper story that he pours on the upper story, but if rains fell on the upper story and descend below, it is upon the damaged party to repair so that he is not damaged, provided that the descent of the rains is not due to the ruin of the roof itself, for this the owner of the upper story must repair as has been explained in siman 164, but rather the ruin is due to the pipes and the like, for in this it is upon the damaged party to repair [Netivot HaMishpat ibid.].

One must distance pomace, which is the waste of olives, and manure, and salt, and lime, and flint, which are stones from which fire emerges, and damp sand, from the wall of one's fellow by three tefachim, for all of these emit heat and are harmful to a wall, and regarding damp sand, the moisture is harmful to it. Or, one may plaster the wall with lime, for then the heat or the moisture, when not in a pit, does not harm it, and one may place them adjacent to the wall. And similarly, one must distance seeds and the plow from the wall by three tefachim, because they rot the ground and raise loose earth, and the foundation of the wall collapses. And similarly, one must distance a pit in which urine collects from the wall by three tefachim, and one must also plaster the pit with lime, for urine is potent and distancing alone is not sufficient. And even without a pit, it is forbidden to pour urine near a wall less than three tefachim, and one does not need to plaster with lime [Sma], for since they are not in a pit, even if they are many, distancing alone is sufficient. And to urinate, one does not need so much distancing, and thus the sages said: A person shall not urinate at the side of the wall of his fellow if it is made of bricks unless he distances from it three tefachim; and if the foundation was of stones, a distancing of one tefach is sufficient; and if the stones were hard rock, which are of the hard stones, he may urinate at its side without any distancing at all. But upon the wall itself, it is forbidden to urinate. And even a pit, some say that it is permitted to place adjacent to hard rock. And a wooden wall, it appears to me that its law is like bricks. And to dig a latrine requires much distancing according to the assessment of the beit din. And some say that these distancings are not required for a stone wall, except for seeds and a potent plow because of the collapse which applies even to a stone wall, and similarly a pit of urine, for this applies even to one of stones. And some say that all the distancings apply even to a stone wall, and this is the opinion of the Rambam, of blessed memory.

One distances the millstones from the wall three tefachim from the lower millstone, which are four from the upper one, so that it does not vibrate it or so that it does not startle him with the sound of the millstones. This applies to a small mill such as a hand mill, but a large mill that animals lead requires more distancing according to the assessment of the beit din. And if he did not distance it and damaged his fellow's house, he is liable to pay according to the assessment of the beit din, who shall appraise if he caused him the damage. But when he has distanced it, it does not cause damage at all, and it is not similar to fire. And so too regarding other damages, such as a weaver who damages his fellow with the strikes he makes during the time of weaving, they shall appraise based on experts and craftsmen. And anything similar to this, as it is impossible to specify all types of damages and distancings, also requires according to the assessment of the beit din. A wind mill does not require distancing as it has no vibration, and a water mill requires much distancing because of the abundant water. And so too one distances the oven from the wall three tefachim from its base, which are four tefachim from its rim, so that the wall does not become hot; and he measures from the inner rim and not from the outer one, for the thickness of the oven walls are included within the three tefachim. Regarding a stove, a measure was not specified for it, and also regarding our ovens, the measure was not specified, and it depends on the assessment of the experts. And whether it is necessary to distance them even from a stone wall depends on the dispute in section 7.

A person may not dig a pit, nor a trench, nor a cave, nor bring a water channel, nor make a water pool—which is an excavation in which rainwater collects to soak clothes for laundering—next to the wall of his fellow unless he distances it three tefach from the wall and plasters with lime the wall of this pit, or trench and cave, or this mikveh of water, or the wall of the channel or the pool, and plasters the side that is toward his fellow so that the water does not seep through and damage the wall of his fellow. And there is no difference whether the wall of his fellow was a building wall or a pit wall, for all of these cause damage both to a building and to the pit of his fellow. And some say that regarding a building wall, distancing alone is sufficient and there is no need to plaster with lime, and even regarding a pit wall, ab initio one must plaster, but post facto it is not a hindrance [Acharonim]. And there is one who says that according to this opinion, even ab initio there is no need, for he is considered as one in possession [the Gra, subsection 51]. And it is not similar to a hole of urine because it is potent. And the measure of distancing a pit from a pit will be explained in section 18 in detail.

Some say that even if the water was not permanently there, such as a pipe that pours water from a house to the outside, nevertheless one must distance it, but for lime it is not necessary. And some disagree, holding that for water that is not permanent, distancing is not required, except for urine, which one must distance even when not permanent, as I wrote in section 7 that it is forbidden to pour urine near a wall. And the same applies to a pit that has no water at all; it is forbidden to dig it near the wall of one's fellow, whether it is the wall of a building or the wall of a pit, because it weakens the ground, and one must rectify it according to the assessment of the experts. And know that a bor, a shiach, and a me'arah are one and the same, except that a bor is square, a shiach is long and narrow, and a me'arah is covered with a roof.

And there is a matter that requires a great distance, such as the stone upon which the launderer strikes the garments until they are whitened; one must distance it four amot from his fellow's wall, because when the launderer strikes upon it, the water splashes and damages the wall.

And so too, there is a case where a distance of four amot is required: when one comes to place a building wall next to the building wall of his fellow, he must distance himself from it four amot. Even though his fellow has no window in his wall that would require distancing so as not to darken it, nevertheless the sages, of blessed memory, said that he must distance himself because of "davsha." Its meaning is that through the walking that people walk next to the wall, the ground is trodden and the foundation of the wall is strengthened and hardened. And even if the wall had been there for many days and fell, we do not say, "Behold, that place has already been trodden and no longer requires davsha," but rather even so, he may not place it adjacent. And if the city is new, such that people remember when it was built, or if it has not yet been sixty years since it was built, such that its ground has not yet been trodden, then there is no difference between a garden wall and a courtyard wall, for he must also distance himself from a courtyard wall. And if the city is old, such that no person remembers its building and it is more than sixty years since it was built, he only needs to distance himself from a garden wall when the wall is made like a building wall, because it is not the way of people to walk inside it, and its ground is not trodden; but in a courtyard wall, it is not necessary. And a dwelling house has the same law as a garden, because it is not the way of people to walk inside it next to the walls. And if the wall of his fellow runs from east to west, and he comes to build a wall opposite it from north to south, he does not need to distance himself because of davsha, for in such a small matter we are not concerned for davsha. And this is the system of Rashi, the Tosafot, the Rosh, and the Tur.

The Rambam, of blessed memory, has another approach in this, as he wrote in chapter 9 of Laws of Neighbors: Reuven, whose wall was adjacent to Shimon's wall like a "Gimmel," and Reuven came to make a second wall opposite Shimon's wall until he makes walls like a "Beit," behold Shimon may prevent him until he distances four amot from opposite him, so that the place between the two walls will be wide enough for the public to tread upon it and the earth will be strengthened. In what case does this apply? To a garden wall or in a new city to a courtyard wall, but in an old city it has already been strengthened and he builds opposite it without distancing. And likewise, if there were not four amot in the length of Shimon's wall that he builds opposite, he does not distance, even though he prevents foot traffic from walking there, for a wall that is less than four amot does not require strengthening of the earth. Thus far his words. And according to his words, if it was not initially like a "Gimmel" but rather he came to place his wall opposite Shimon's wall like this, he does not need to distance four amot for the sake of the treading [Levush], unlike those who disagree on this [and he does not read "and it fell" in the Gemara like the version of the Geonim, and so it appears in the Yerushalmi and in the Rif, and so it appears from the Nimukei Yosef and Maggid Mishneh, and from our teacher, the Rema, there is no proof, for he copied the wording of the Tur, and for the Rambam there is a novelty in this, that there is no interruption at the corners, and delve into this]. And even if the third wall stood there many days and fell, when he returns and builds it, he must distance [and even though according to his version the law of "fell" is not in the Gemara, nevertheless our teacher, the Rema, decided that even according to his opinion such is the law based on logic; see Bach, and it requires further study].

Some say that all this only applies when they acquired the land one after the other from the government or from ownerless property, and therefore the first one established a chazakah in the four amot necessary for the treading, and the other who comes to build must distance himself. But otherwise, they may place wall against wall, for by what means did his land become enslaved to strengthen the wall of his fellow? Therefore, if they bought in partnership, or if they bought at the same time, or inherited, or if they both acquired it equally from ownerless property, one does not need to distance himself.

One whose regular work is to crush sesame seeds or groats and the like within his own property, and the crushings are so great that the walls of his fellow shake, or when a barrel and its cover stand in the courtyard or on the roof the cover on the barrel shakes, this is like one who damages with an arrow, and he is obligated to distance himself enough so that it does not shake, or he must cease from such work that damages others. And if he caused damage at the time of the shaking, he is obligated to pay, for the damage comes from his force, and his force is considered like his body. And even if the courtyard of his fellow was built after he established his work, nevertheless he must distance himself, for he is like one who damages with his hands. And the same law applies even if he does not damage the courtyard, but the owner of the courtyard or one of the members of his household has a head ailment and the sound of the striking damages him, he must distance himself. But if it damages one of his neighbors, he cannot protest against him, for this one can say: let him rent another apartment [it appears to me].

One must distance a ladder from the dovecote of his fellow four amot so that the mongoose—which is a wild animal that eats fledglings—does not jump while he is placing the ladder and ascend to the dovecote and eat the fledglings. Similarly, it is forbidden to keep a cat in one's house or courtyard if it eats the neighbors' chickens, or he must tie it. Similarly, it is forbidden to raise an evil dog, and it will be explained in siman 409 with the help of Heaven.

One must distance a wall from the mazhila of his fellow by four amot, so that there will be space for the owner of the mazhila to stand a ladder and repair his mazhila, since he has established a chazaka in it. And even though it was explained in siman 153 that he may build under the pipe, nevertheless, further away in the place where one needs to stand a ladder, he is not permitted to build [Sma], for when he established a chazaka in it, he established a chazaka for everything that it requires. And some say that there is no chazaka for this even if he established a chazaka in the mazhila, and this measure was stated in the Gemara regarding a case where he purchased from him a place to ascend to his mazhila and they did not specify the measure of the place; he must leave him a space of four amot in order to ascend to his mazhila, which is the measure for standing a ladder. And so too regarding brothers who divided and increased the valuation because of the mazhila, he must also leave him space for standing the ladder [Behag], for since they increased the valuation, presumably their intention was also for the standing of the ladder [as explained in Nimukei Yosef and see the Gra subsection 46, and it requires further study].

One who comes to dig a pit at the end of his field adjacent to the boundary of his fellow: if the field of his fellow is not suited for pits, as it is a field of ba'al that does not require irrigation, he may place it adjacent and [the fellow] cannot protest against him. And if his fellow reconsiders and wishes to dig a pit at its side, he must distance himself six tefachim from the wall of the pit, until there is a thickness of six tefachim of earth between the cavities of the two pits; for every pit requires a wall of earth of three tefachim, as was written in siman 217, because he damages him directly, as each and every act of digging damages the ground of the other [Gemara]. And if the field of his fellow was suited for pits, as it is a field of shelachin that requires irrigation and they make pits in it to draw water into them, he may not place it adjacent until he distances himself three tefachim from the boundary, according to the measure of the wall of his pit. And when his fellow comes to dig, he too must distance himself three tefachim within his own field and dig. And that which was explained in section 9, that one may not dig a pit within three tefachim of the wall of a pit, this is when the first person also distanced himself three tefachim from the boundary, such as when the field of the second was suited for pits. But if the field of the second was not suited for pits, the first was permitted to place it adjacent to the boundary, and the second must distance himself six tefachim from the cavity of the pit of the first [beginning of the second chapter of Bava Batra]. And when he distances the required measure, some say that he must also plaster the wall of his pit with lime, as was written there. And some say that with one of them it is sufficient post facto, according to the "some say" that was explained there. And some say that according to this view, even initially it is not required [the Gra], for since it was a query in the Talmud, this is considered like one who is in possession.

One who digs a pit within his field and sold half of the field, and it begins from the cavity of his pit, and the buyer comes to also dig a pit, he must distance the entire distancing, which is six tefachim, even if it is suitable for pits. Since the first one acted with permission, for the entire field was his, it follows that the buyer, since with every digging he is like one who damages with his hands, must distance so that he does not damage the seller. And Reuven who dug a pit in his courtyard so that rainwater would flow into it, and when the water increased they burst through and passed through the walls of Shimon's cellars, Reuven is obligated to remove his damage, for he is like one who damages with his hands, and what can Shimon do? And damages whose measure of distancing was not explained, one must distance to the extent that he does not damage, according to the vision of the experts.

There is one who says that the sages only said that a distance of six tefachim between one pit and another pit is sufficient in mountainous land where the ground is hard, but in a place where the ground is soft, one must distance further according to the assessment of the experts. One must distance a beit hakise from the pit of his fellow until the experts recognize that the salinity of the beit hakise will not pass to the pit, and for the sake of clarity, he should distance fifty amot. And there are those who disagree on this and hold that in a pit of stones, a distance of a tefach is sufficient, and when it is not of stones, three tefachim is sufficient. The Geonim agreed with the first opinion [the Gra]. All this applies to a beit hakise that is in a pit, for the bad odor does not rise so much, but in a beit hakise that is upon the ground and revealed, regardless of this, one must distance a great deal, and even a chazakah is not effective, as will be explained. And in any place where the damager must distance himself, even if a public domain separates between the two of them—for example, two courtyards on two sides of a public domain—nevertheless, he must distance since he is damaged by him.

One must distance a permanent threshing floor from the city fifty amot so that the wind does not carry the straw at the time of winnowing and damage the residents of the city. If the threshing floor preceded the city, he removes it first and the residents of the city give him its value. Even though in the case of an individual in such a situation he would not need to remove it since he preceded, nevertheless, due to damage to the public, he must remove it [Bava Batra 24b]. Therefore, he must remove it even before receiving his money, for if not so, he would never remove it, as with a pot of partners, each one will rely on his fellow; but if he removes it first, he will claim from them and they will pay him. If the city preceded, he removes it without payment. Even when there is a doubt as to who preceded, he shall remove it without payment, for since he is obligated to remove it before receiving the money even when he preceded, he can no longer extract money in a case of doubt [ibid.]. However, when the damage is to an individual and not to the public, he does not remove it when he is prior. If the damaged party is prior, he removes it without payment. And even though regarding a tree in such a case it is explained there in the Gemara that he does not remove it without payment, there it is because the damage does not arrive immediately but rather after some time [Rashi ibid. 25b]; therefore the sages did not obligate him to remove it without payment, which is not the case here where the damage occurs at the time of the action. Therefore, a person shall not make a permanent threshing floor within his own property unless he has fifty amot of land in every direction so that the straw does not damage his fellow's plantings or his plowed field. And regarding damage that is not permanent but only occasional, he does not need to distance it at all.

Our teacher, the Rema, wrote that from what has been explained—that regarding damage to the public, even when he preceded them, he is obligated to remove his damage and the public shall pay him what he lost through this—there is one who learns regarding a duke of a province who decreed upon the Jews of his province that they must cause the Jews dwelling under minor lords in the villages to dwell under him, and if not, he will expel them all: those dwelling under the minor lords are required to fulfill the words of the duke and remove the damage to the public, and to move under the duke first, and to litigate afterward with the public if they have damage in this. Thus far his words. It is explained from this that even if the few have no damage without this, such as if the hand of the duke does not rule over them, nevertheless, because of damage to the public, they are obligated to uproot their dwelling and afterward they shall claim their damage. And all the more so if the few are also in danger because the hand of the duke rules over them, that the public does not need to pay their damage, for ultimately it is a lost matter; and if it is because it is forbidden to save oneself with the money of one's fellow, behold, it was already lost [Darkhei Moshe]. And the few cannot say "let my soul die with the Philistines," for it is not within their power to say so [Sma]. And so too regarding any damage to the public, the many can coerce the individuals who refuse even if the damage does not affect them, and all the more so if it also affects them but they say "let our souls die with the Philistines," for this is not of the claims of the seed of Abraham our father [see Hagahot Mordechai Kiddushin, who learned this from the tree that will be explained, and there is room to deliberate on this, and examine it closely].

One distances a tree from a city twenty-five amot for the sake of the beauty of the city, and in the case of a carob or a sycamore whose branches are numerous, fifty amot. If it is found near the city within less than this measure, if the city preceded it, one cuts it down without payment. If the tree preceded it, one cuts it down and they give payment. Even in a case of doubt as to which preceded, one cuts it down without payment, as I wrote in section 21 regarding a threshing floor. This law does not apply outside of the Land [Tur and Maggid Mishneh], and even in the Land of Israel it does not apply in this time [Beit Yosef] since the reason is only for the sake of the beauty of the city, and now it is not in our hands due to our sins. In every place, one distances carcasses, graves, tanneries, kilns, and bees fifty amot from the city. One only makes a tannery to the east of the city because the eastern wind is warm and diminishes the damage of the odor of the processing of the hides. Similarly, one distances a dovecote fifty amot from the city so that the pigeons do not damage the seeds and kernels in the city; and when there are fifty amot they will not cause damage, for the sages estimated that within fifty amot they fill their bellies with whatever they find. Even in a field, one may not make a dovecote within his own property unless he has fifty amot in every direction so that they do not damage the property of others.

One whose fellow's field was planted with vines or other trees, and he has a field next to this one and he also comes to plant vines next to his fellow's vines and other trees next to his fellow's trees, he must distance by the measure of the length of the plow used there. Our sages, of blessed memory, said that in the Land of Israel, which is a mountainous land, the length of the plow is four amot, and in Babylonia two amot, and every place according to its custom. In a place where it is not the practice to plow between the trees, one does not need to distance at all. In a place where they must distance and both come to plant at the same time, each distances half the measure. And so it is in all matters of damages: when both come to act as one, each must distance half the measure. Some say that between vines and trees they must distance according to an estimation of the mind, so that birds will not fly from the trees to the vines in one flight before they land. Some say this is specifically when one plants tall trees, but when one plants a seed it is permitted, for they grow on their own and this is not damage by hand. In any place, if there is a fence between them, this one may place close to the fence from here and that one may place close to the fence from here, for since there is a fence, he will not be able to turn there with a plow. Even between vines and trees, where the concern is regarding the flight of birds, the fence is effective; for even if the fence is lower than the trees, nevertheless they land first on the fence [Sma], and this is not "his own arrows." These matters change according to the place and the context and depend on the appraisal of the experts. Know that the four amot in the Gemara are, according to the measurement of our country, three measures which are one sazhen according to our country, Russia.

One who made a threshing floor within his own property, or established a privy or a craft that involves dust and earth and the like, must distance it so that the earth or the odor or the dust does not reach his fellow so as not to damage him. And even if the wind is what assists in carrying the earth and the dust and the like, nevertheless he is obligated to distance them if the earth or the dust or the chaff travels via a common wind, for all these are like one who damaged with his arrows. But if it does not travel via a common wind but only by means of an uncommon wind, he does not need to distance it, for an uncommon wind is merely an accidental occurrence. And even though with a common wind he is obligated to distance it, nevertheless if he did not distance it and the wind carried the chaff and the dust and the earth and it damaged, he is exempt from paying, for the wind assisted him and the damage did not come from his power, and it is like a causative damage (germa) in damages and he is exempt. And so too regarding all other types of distancings in this siman, he is not obligated to pay when it damages, except for one who pounds groats in section 15, for the damage comes from his power, or with the fire of an oven which is like his power. But in all other matters, the damage does not come from his power itself, but rather the wind or the water or types of heat or other things damage it and not the person himself. And that which was explained that all the distancings are like his arrows is not meant precisely, but rather the intention is that they damage immediately like an arrow and not after a time; but in truth it is not similar to an arrow regarding the matter of payments. And only regarding his fire did the sages, of blessed memory, say that his fire is on account of his arrows. And even though regarding the four primary categories of damages one is obligated to pay, and among them there is an obligation for a pit (bor) and an ox (shor) and not the person himself, and even so he is obligated to pay, it is different there; for it is true that the Torah obligated one when his property damaged just as if he damaged with his body, however this is regarding things that it is possible to guard so that they do not damage, like the ox, and so too the pit—who forced him to dig a pit? But all that is in this siman are usages that a person needs, and the sages only obligated him in the distancing; but that he should be obligated to pay when it damages is not logical at all, for the sages did not obligate a person to prevent himself from his usages and his craft [Netivot HaMishpat] when he needs this and intends for his benefit. And he is not obligated unless the damage comes from his actual power, like the pounding of groats and fire which is like his arrows, and this is like a person who damages, for a person is always forewarned (muad). But this is not so in the other matters in this siman. And there are those who disagree with all of this and hold that in all the distancings, when he did not distance, he is obligated to pay when they damage, except for what comes by means of the wind and the damage of the mongoose in section 16, because his property did not damage. And this opinion holds that since they obligated him to distance and he did not distance, you have no greater negligent person than this, and it is like direct causation (garmi) and not like causative damage (germa).

It has already been explained at the beginning of this siman that regarding things that do not cause damage except after a long time, one does not need to distance himself, and it is upon the injured party to distance himself when he so desires. Therefore, the sages of blessed memory said that one who comes to make a mashrah, which is a water pit in which flax is soaked, next to his fellow’s vegetables—even though the waters of the mashrah are absorbed into the ground and travel and ruin the vegetables—or if he planted leeks near his fellow’s onions, which diminish their flavor, or if he planted mustard next to his fellow’s beehive and the bees eat the leaves and ruin the honey—in all these and their like, he does not need to distance himself in order that he not cause damage. Nevertheless, the Rambam, of blessed memory, wrote that he must distance the mashrah from the vegetables, and the leeks from the onions, and the mustard from the bees by three tefachim or slightly more, so that there will not be damage by his direct hand when it is very close. And some say that only regarding a mashrah must he distance three tefachim, but not regarding leeks and mustard [Tur], for with them, even when they are very close, the damage does not come immediately. And the law is the same in all such cases where the damage does not come at the time of the act, but only afterwards after a long time: it is upon the injured party to distance himself.

And so, one who had a tree within his field near the pit of his fellow, the owner of the pit cannot restrain him and say to him, "Behold, the roots of your tree are entering my pit and damaging me," for this is damage that comes of its own accord after a time, and at the time he planted, he was not damaging him; just as this one digs within his own, so too this one plants within his own. Therefore, even regarding all the damages in this siman that are forbidden to be placed near, it is permitted to act within his own when the damaged object is not yet there, except for the digging of a pit near a field made for pits, because with every digging that he digs, he weakens the ground of his fellow and it is like damaging with his hands; and so too regarding the crushing of groats [Netivot HaMishpat]. This is not the case regarding all other distances, since the damage is not ready and will come after a time when the damaged party acts, it is similar to a tree and a flax-steeping pool. And there are those who disagree on this, that even when the damaged object is not there, it is forbidden for him to act when his fellow is ready to do the thing that will be damaged, for after his fellow acts, the damage will come to him from this very thing that he is doing, and behold, this is similar to damage with his hands. This is not the case with a tree and a flax-steeping pool, for from this tree itself that he plants, the pit is not damaged, but rather from the roots that will branch out from it, and so too with a flax-steeping pool, and the damage will come after a time. And so too if he purchased them from another as they are, such as the threshing floor and the tannery and all that has been explained, even if they are very close, behold they are in his chazakah; and even when it falls, he may return and rebuild it, for we claim on behalf of a purchaser, saying that the one who sold it to him acted with permission and appeased the neighbors and they waived it to him, or that he purchased this right from them. It makes no difference whether it is against an individual or against the public, for the rule is that we claim on behalf of a purchaser and an heir. This is except for a great damage that will be explained, for which they have no chazakah, such as constant smoke and a privy, where only a kinyan is effective, and it is not common that they would purchase with a kinyan for a great damage such as this; we do not claim on their behalf, for a matter that is not common we do not claim on their behalf [Taz]. And so too, if it is known that the seller or the testator acted with violence, the purchaser or the heir must remove them.

All the distances that we have stated, if he did not distance them and his fellow saw and remained silent, he has waived his rights, and he cannot go back and require him to distance. This is specifically when he saw from him that he waived his rights, such as if he assisted him immediately, or if he told him to do this, or if he saw him doing it at his side without distancing and the damage became known to him according to an assessment of a beit din or experts and he remained silent and was not particular about this, he acquires the right immediately. And some say that even in these hazakot one requires three years and a claim. Our teacher, the Rema, decided in accordance with the first opinion, and we explained the reason at the beginning of siman 153; see there.

In what case does this apply, that there is a chazakah for other damages? However, there are four types of damages which are smoke, the odor of a beit hakise, dust and the like, and the vibration of the ground, for which there is no chazakah. Even if he remained silent for several years, he may retract and compel him to distance them. And even if he says that he purchased it from him, he is not believed without proof. And even if he established it before the damaged object came there—for according to the first opinion in section 27 it is permitted regarding all damages—nevertheless, in these cases he must distance them even afterwards. However, if both of them acquired from ownerless property and one of them acquired first and performed these actions in his domain, and afterwards the second acquired, he cannot protest against him. And why is the law of these damages changed from other types of damages? Because a person's mind cannot tolerate such damages, and we are witnesses that he did not waive his rights. The damager is not believed to say that he sold it to him, since it is a great and permanent damage. If there are witnesses that they performed a kinyan from his hand that he waived these damages or sold them to him, he cannot retract. Similarly, hezek re'iyah in a place that requires a mechitzah has no chazakah. For example, a courtyard of partners that is subject to the law of division, according to what I wrote in siman 157, each of them has the power to compel his fellow to build the wall in the middle so that his fellow does not see him while he uses his portion. And even though there is a chazakah for hezek re'iyah as I wrote in siman 154, that is regarding damage caused by an action, such as opening a window, where one is the damager and the second is the damaged party. But in this case, where the damage comes automatically without an action, and also each one is a damaged party, even though they stood thus for many years without a mechitzah, there is no chazakah for this, and one compels his fellow to make a mechitzah at any time he wishes, unless there are witnesses that they performed a kinyan on this, that they waive the damage to one another.

The smoke they spoke of is specifically constant smoke, such as kilns and the ovens of bakers and potters and the like. However, an oven in which an individual bakes bread, and similarly a stove, even that of bakers [Sma], since the smoke does not remain for the majority of the day, it is not constant. But if it remains for the majority of the day, it is called constant smoke even if it is not so great, and their law is like kilns and potters. But when it does not remain for the majority of the day, it is like all damages, such that if he saw and remained silent, he waived his right and can no longer protest. However, initially he can prevent it even with smoke that is not constant. And since he can protest, if he did not protest, the one who established it has a chazakah. And some say that with smoke that is not constant, even initially he cannot protest, for such is the way of the world; and consequently, since he cannot protest, the one who established it does not have a chazakah, as I wrote in siman 153. Our teacher, the Rema, decided according to this opinion, and some decided according to the first opinion [Shach]. And it appears to me that regarding our ovens, which are made with a chimney, certainly he cannot protest. And constant smoke is also specifically when the smoke reaches his fellow by means of a common wind; but if it only reaches by means of an uncommon wind, he is not obligated to remove his damage, for anything that is not common, one cannot protest against it. And even with a common wind, this is specifically when the smoke harms people in their eyes or causes coughing and the like; but if it does not harm people, even though it reaches his fellow's house and blackens his walls, nevertheless, if he saw and remained silent, he waived his right and can no longer protest, but initially he can prevent it. And from this it is clarified that when the smoke does not blacken the walls, he cannot prevent it even initially. And according to this, this law does not apply at all to our ovens, even those of bakers, because they are made well and with high smoke-elevating chimneys and do not cause harm at all [it appears to me].

And so too a beit hakise, regarding which they said that it does not have a chazakah, this is specifically with batei kisaot that are on the ground and revealed; even though there are partitions around it, it does not help, for the odor rises and a person cannot tolerate it. But if the excrement is covered in a pit in a hole at a depth, and the hole is covered, certainly at the outset he can prevent it, but if he saw and remained silent, he waived his right, and he can no longer protest.

Reuven and Shimon who have a beit hakise in partnership and the pit goes into the courtyard of Levi, and now Reuven and Shimon wish to divide and make two bati kisai, Levi can protest on the grounds that he may say that when they divide into two, those entering will increase, including from other people.

That which we have said, that there is no chazakah for these damages, is not specifically these, but rather even anything that is known that the claimant cannot tolerate the damage, even though other people tolerate it, this has no chazakah against this claimant. For example, one who established a chazakah to perform work involving blood or carcasses and the like in his domain, and crows or other birds enter there because of the blood and eat, and they distress his neighbor with their voice and chirping, or with the blood on their feet when they sit on his neighbor's trees and soil his fruit, and his neighbor is fastidious by nature, or a sick person who cannot tolerate the chirping, or he is an istanis such that when the fruits are soiled with blood they are loathsome in his eyes and he cannot eat them—this person is obligated to nullify that work or distance himself until no damage comes to his neighbor because of him. And this is similar to the odor of a beit hakisse, for which there is no chazakah, and so too any damage that a person cannot tolerate. However, he is not believed regarding himself to say that he cannot tolerate it, unless it is clarified by a beit din or experts that most people cannot tolerate this, or it is clarified that he is an istanis or a sick person and it is not within his power to tolerate it even though other people tolerate it, as has been written.

That which we have said, that there is no chazakah for a beit hakise, this is specifically when it is in his own domain and the odor travels to the domain of his fellow. However, when he made the beit hakise in the domain of his fellow, or even if he made it in his own domain but the pit where the excrement falls is in the domain of his fellow, there is a chazakah for this, since he established a chazakah in the body of the land. It is like all chazakah of lands which requires a claim that he purchased it or that it was given to him, and the one holding the chazakah is believed with an oath. However, we do not require a chazakah of three years, for since he established the chazakah in his presence, he would not have allowed him even one day to do such a thing; rather, he certainly sold or gave it to him, and he swears and remains in his chazakah. But not in his presence, it is not effective even with a chazakah of three years, for this does not have a report that would reach the ears of the protestor so that he would make a protest [so it appears to me]:

Even though he established a chazakah for the latrine in the domain of his fellow, nevertheless, he must cover the pit so that a strong odor does not rise, or he must make a deep pit and surround it with partitions so that the odor will not be so strong. For granted that he established a chazakah for this, nevertheless, he is obligated to act so that the odor does not rise so much. And even if he established a chazakah without a pit and cover, chazakah is not effective for this. And even if he says, "I will remove the latrine and perform another use," his fellow can protest against him, for he established a chazakah for a latrine, and since for this there is no chazakah, all the more so for another use he has no chazakah. And there is one who says that since he established a chazakah in the body of the land, it is his for whatever use he desires, provided that no damage reaches his fellow.

One who established a presumption of a damage that possesses a presumption, such as one who opened a window, or diverted water, or did not distance that which is appropriate to distance, and the one holding the presumption claims: "You told me to do it," or "You waived it for me after you saw it," or "The damage was recognizable and you remained silent and did not protest against me," and the damaged party says: "It is only now that I have seen it and I did not know previously," or if he said: "When I saw it I protested against you, and you said 'I will distance it now' or 'I will close it' and you put me off from day to day so that you could establish your damage"—in all these and their like, the damaged party must bring proof. For this presumption is like the presumption of three years regarding lands; and just as there, if the challenger did not bring proof that he protested, the one holding the presumption swears a shevuat hesset and remains with his own, so too regarding the presumption of these damages, he is considered the possessor immediately. And if the challenger does not bring proof that he protested against him, he swears a shevuat hesset and remains in his presumption. And this is specifically regarding a matter that possesses a presumption that he is considered the possessor, but regarding a matter that does not possess a presumption, he is not considered the possessor. Therefore, if he established a presumption of constant smoke or a latrine and the like, and the damaging party claimed that he purchased this from the damaged party or that he waived it for him, the damaging party must bring proof. And if he did not bring proof, the damaged party shall swear a shevuat hesset that they did not perform a kinyan from his hand regarding this, and that he did not sell and did not give, and this one must remove his damage.

In siman 154 it was explained that one who comes with the power of a gentile is like him, and this applies to damages that occur automatically as mentioned there. However, regarding these damages in this siman, even if he purchased from a gentile as is, he is obligated to remove his damage or distance himself, because it is like damaging with one's own hands, and the chazakah of the gentile is not effective for this. For even there, there are those who disagree, as I wrote there in section 39, and all the more so here, where everyone agrees to this; and he is unable to damage his fellow with the claim that he purchased it from a gentile, unless the gentile has a document or witnesses that he acquired this chazakah from him.

Two neighbors who dwell together, and the house of one was breached, and through this thieves come to the house of the second, and the second says to him, "Fence your house or sell it, for you are causing me damage," some say that the law is with him and he is obligated to repair his damage, for it is garmi. And according to the opinion of the Ramah, which was brought in the Tur, siman 157, if damage occurred, he is liable to pay; for he wrote: One who is obligated to fence between himself and his fellow and did not fence, and thieves came and stole from him, he is liable to pay even though he did not perform an action, provided that they warned him at the outset. Thus far his words. However, the Rosh, of blessed memory, disagrees with him; for granted that he is certainly obligated to fence, nevertheless, if he did not fence it and damage was done to him, he is exempt from paying, for this is neither his direct arrow nor garmi, and it is not even considered like gerama [the Gra]. And a proof for this is that there is no more certain damage than one who breaches a fence in front of his fellow's animal, and even so, he is exempt from paying.

Even though it was explained in section 27 that one may place a tree near a pit, nevertheless, if the roots of the tree descended into the pit, the owner of the pit may cut them. Not only that, but even Reuven who dug a pit and descended and found the roots of Shimon's tree within his field, he may cut and dig, and the wood is his. And if the roots were close to Shimon's tree within sixteen amot, the roots belong to Shimon, and he cuts them and gives them to him, for all sixteen amot are for the needs of the tree and are considered like the tree itself. And if he does not need to dig a pit, and Shimon's roots emerged within his field, he deepens three tefachim so that they do not hinder the plow, and every root that he finds within three tefachim he may cut. And whatever is within sixteen amot of the tree, he gives the wood to the owner of the tree, and those further than this he takes for himself. And in all of this, he does not need to be concerned that perhaps through this his fellow's tree will wither, since he is digging within his own.

One whose fellow's tree has branches leaning into his field may cut according to the measure so that they do not hinder his plow from traveling there. And regarding a carob or a sycamore, which is a fig tree whose shade is abundant and harmful to the field, he may cut everything that leans until it is level with the boundary. And likewise, if it was leaning over his fellow's irrigated field or over an orchard, for which even a small amount of shade is harmful, even with other trees, he may cut everything that leans until it is level with the boundary.

A tree that leans into the public domain, one trims it enough so that a camel may pass with its rider; but above a camel and its rider, the people of the public domain are not permitted to trim, for they have no loss in this. And the same law applies if one wishes to extend projections above a camel and its rider, they cannot prevent him even in the public domain, and all the more so in an alleyway. But one who has two houses on two sides of the public domain or on two sides of an alleyway cannot make a bridge from house to house because it darkens them. And even a single projection, if it darkens—such as if it is long and wide—or if water or wastewater spills from there into the street, he is forbidden to extend it, and when he has extended it, they trim it immediately. And even for an individual, if the foliage leans over his upper story or over his roof, the owner of the upper story or the owner of the roof may trim the foliage, and the owner of the tree cannot say, "Why did you raise your upper story or your roof so high?"

A tree standing on the boundary, even though the branches lean into the property of one of them, both of them divide its fruit, and we do not follow the branches but rather the roots. Since the roots stand on the property of both of them, they divide equally. It will be further explained in siman 167 with the help of Heaven. However, if there is some other custom in the city regarding this, we follow the custom.

Reuven who sold his house to one person and his garden to another, the owner of the garden is not required to distance his trees, even though the roots of the trees go under the walls of his house and damage it. And it is not only necessary to state this regarding trees that were already planted, but even to plant from the outset he has the permission, as I wrote in section 27. And even if he sold the house first, we do not say in this case that a seller sells with a generous eye and reserved for the buyer every right that he has in his land, as we say regarding a window in siman 154 section 38, for it is not comparable; for there the damage is immediate, whereas here, he plants in his own property and the damage comes after a long time. And from this one may judge regarding all damages in such a case. And likewise, if he sold the garden and reserved his house for himself, the law is also thus [it appears to me]: