Siman 173

Partners who wished to divide something that is not subject to the law of division, even though they lose its name, they may divide, and there is no concern of bal tashchit in this since they do this for a need. And regarding sacred writings, that is, the twenty-four books when they are written on a scroll like our Sefer Torah, if they are in one volume, they may not divide them, because it is a disgrace to the books to divide them from one volume for the purpose of division. Even though if they belonged to one person he would be permitted to cut them when he needs to do so, nevertheless, to do so for the purpose of division involves a disgrace to sacred writings. And if they are in two bindings, if they are two different matters like Psalms and Proverbs, the law of gud o igud does not apply to it, as I wrote in siman 171, for anything whose use is not equal is not subject to the law of gud o igud. And if they are one matter, like Psalms and Psalms, we say gud o igud regarding it, and there the manner of gud o igud was explained regarding two things whose use is equal. But with printed books or those written in booklets, there is no disgrace in dividing them [Beit Yosef]. And the tefillin of Rashi and of Rabbeinu Tam are considered as if their use is not equal. And so too two different masekhtot, or two parts of the Rambam, or two parts of Shulchan Aruch, Orach Chaim and Yoreh Deah, and anything similar to these, are called "their use is not equal" [it appears to me].

It has already been explained in siman 157 that even if they agreed to divide, they can retract; but if they divided by goral, once the goral has come up for even one of them, the division is established for all of them. If they are only two, both of them have acquired. If they are three or more and the goral came up for one of them, the others cannot divide in a different manner, such as through a valuation of money or the like, but rather they must also divide by goral, for goral is like a chazakah. The reason is that through that benefit where they listen to one another to divide by goral, they resolve and transfer ownership to one another. However, the Rosh, of blessed memory, disagrees and holds that goral is not like a chazakah and they can retract, for the goral does not effect acquisition; it only avails for this matter: that it clarifies the portions. And if after the goral one of them held his portion with a chazakah, the division is established, as was written there.

Brothers who have divided, behold, each one in the portion that fell to him is like a purchaser, as if this one purchased from his brother. And since we hold in siman 216 that a seller sells with a generous eye and does not reserve for himself anything in what he sold, therefore also brothers who have divided have no right of way over one another, nor ladders, nor windows, nor a water channel. For since they divided, there does not remain to one of them any right in the portion of his fellow, even though their father had this right. How so? Two brothers who divided two fields, one took the outer one and one the inner one, the owner of the inner one has no right of way to walk through the outer one, even though their father walked through there, because we consider that the owner of the inner one sold to the owner of the outer one all his portion in the outer one without reserving a path for himself. And if you say we should consider the owner of the outer one like a seller and say that he sold to the owner of the inner one with a generous eye and reserved for him a path, it can be said that the owner of the outer one is not a seller regarding the outer field but a purchaser, and regarding the inner field he is like a seller, and indeed he did not reserve for himself anything in the inner field, and in the outer field he is a purchaser and not a seller [Rashbam]. And so too ladders: if an upper story fell to one and a house and courtyard to the second, the owner of the upper story is not permitted to place a ladder in the courtyard, for he sold him the courtyard with a generous eye without reservation. And not only that, but even if the courtyard also fell to the owner of the upper story and he is able to place a ladder in his own courtyard, he may not lean the ladder against the wall of his brother's house; and even though the house is subordinated to the upper story, that is to bear its weight, but not the weight of the ladder. Nor windows: for if the house fell to one and the courtyard to the second, and the house has windows open to the courtyard, the owner of the courtyard may build opposite it and close it. And so too a water channel: for if a water channel was passing to his field through the field of his brother, his brother may obstruct the flow of the water through his field. However, when the water damaged him at the time of his obstruction, he must repair it; even though his brother's water damaged him, since they damaged him through the cause of his obstruction, he must repair it [Rivash]. And even though their father had all these usages, they cannot say "we shall use them in the manner that our father used to use them," as it is written, "Instead of your fathers shall be your sons," for their father, to whom everything belonged, would do as he pleased, which is not the case with them, for once they have divided, one has nothing in the domain of his fellow unless they made a condition at the time of division. And the same applies to two who purchased a field as one and divided: there does not remain to one of them any right in the portion of his fellow. But two who purchased a field from two people, where each one had half the field for himself, or from two brothers where each brother's portion was known for itself, and they were established in all these, such as if the inner one had a right of way over the outer one, and so too in all the matters that have been explained, one of them may not change from how the sellers were established in them, because each one purchased the right of his seller. But when the sellers were partners, and so too brothers before they divided, their law is like one man; and in the following section more will be explained regarding this.

Everything that has been explained is explicit in the Gemara [Bava Batra 8a], and the Rambam ruled accordingly in the second chapter of Laws of Neighbors, and the Tur and Shulchan Aruch in this siman, section 3. And in section 4 they wrote: Brothers who divided [an inheritance], and the portion of one of them came up as a vineyard and for the second a grain field, the owner of the vineyard has four amot in the grain field to turn his plow therein. Thus far their words. And so wrote the Rambam in the twenty-fourth chapter of Laws of Sale: Brothers who divided, one took an orchard and one took a grain field, the owner of the orchard has four amot within the grain field adjacent to the end of the trees of the orchard, for they divided on this condition; and it is not necessary to specify this matter because it is a known thing. Thus far his words. And this contradicts the previous law. And some say that here it deals with a case where they divided by appraisal and compensation, therefore the four amot that he needs are automatically included in the compensation, and the previous law deals with a case without appraisal and compensation [Sma]. And some say that there too it deals with appraisal and compensation, only that it is obvious that regarding a window one is not permitted to darken it completely but only to diminish its light [Taz], and the four amot needed for a vineyard is like darkening completely. And as is explained from the Shas, the previous law truly deals with appraisal and compensation, and that which was explained there that they do not have a right of way over one another—certainly if the inner one has no way at all without the outer field, and similarly when the owner of the upper story has no place to stand a ladder, or the house has no light without the window, or there is no place to lead the water without the field of his fellow, they have all these just like the four amot for the cultivation of the vineyard. Rather, it deals with a case where this is not a fixed path, and also their father only went by this path occasionally, and also the ladder was not fixed there, and similarly the water channel was not fixed [Beit Yosef in the name of the Ramban]. And also the windows deal with a case where he has light from another place. And even though at the end of siman 154 regarding one who sells a courtyard he may darken it completely, it is not comparable, for here they are at any rate both sellers and both buyers; and furthermore, there too it is possible that we would say so. And this is why the Rambam, of blessed memory, concluded that it is a known thing, meaning to say that every essential thing is included in the division which was presumably by appraisal. And in all that I have written in the previous law that they do not have rights over one another, if after the death of their father he held possession for the duration of a chazakah, he has a chazakah if it is a chazakah accompanied by a claim [Beit Yosef in the name of the Rashba].

Two who divided a courtyard, and a well of living water remained in the portion of one of them, and they remained partners in the pit, and it became ruined—it is upon both of them to repair it. And if the well collapsed, the site of the well remains for both of them. However, regarding having a path for the second one through the courtyard of this one, he has lost his chazakah in this matter, for he only had this chazakah as long as the well stood, since he only had an easement on the path and the body of the path was not his, as I wrote in siman 153. And if at the time they divided, the well remained for the one in whose portion the well is located, but he gave permission to the second one to draw water from there—if it collapsed, his chazakah is completely gone, and he no longer has a portion even if this one returned and repaired it. For since he did not have a portion but rather his fellow gave him permission, the permission is only as long as it stands, like an easement on a thing where the easement is only as long as the thing exists, and not when it collapsed and they made another. Therefore, the second one must stipulate at the time of division that he shall always have a portion in the well and an easement on the path forever, even when the well collapses. However, if it is known to the beit din that the custom there is that the second one always has permission to draw from the well and to walk on the path, one follows the custom. And there are those who disagree with the essence of this law and hold that since he has a path to the well, the path is like his own always; even when it collapses and they make it anew, he has this path [Netivot HaMishpat]. And this is a simple matter regarding one who had permission to go to a latrine standing in the domain of his fellow, and it collapsed and they made another—he has permission to go even through his courtyard as before, for since it is impossible for a person without this, certainly the intention was that he should have this chazakah forever [Shevut Yaakov].