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Week 105 - Shabbat - 1 December 2001

BAVA BATRA: CHAPTER 2: MISHNAH 11

One places a tree twenty-five amot from a cistern, and a carob or sycamore - fifty amot, whether above or to the side. If the cistern preceded, he cuts it down and pays money; and if the tree preceded he does not cut it down; if it is doubtful whether this one preceded or that one preceded - he does not cut it down. R. Yose says: Even if the cistern preceded the tree, he does not cut it down, for this one is digging in his and this one is planting in his.

Kehati

One places a tree - A person planting a tree in his courtyard must do so twenty-five amot from a cistern from his neighbor's cistern, - so that the roots of the tree do not penetrate into the sides of the cistern and weaken them; and a carob or sycamore - whose roots extend much further, the distance must be fifty amot; whether above - If both are on the side of a hill, one being above the other, regardless of which is higher, or to the side - where both are on the same plane. The Gemara explains that if the tree is lower down on a slope and the cistern above it, the roots of the tree weaken the foundations of the cistern.

If the cistern preceded - the planting of the tree, so that the tree was planted illegally close to the cistern, he cuts it down - the tree, and pays money - The owner of the cistern must pay the value of the tree, even though it was planted illegally, because at the time its owner planted it, it did no harm. Hence, the Sages obliged him to cut it down only on condition that the owner of the cistern pays him compensation.

And if the tree preceded - the digging of the cistern, he does not cut it down - The owner is not required to uproot the tree. If it is doubtful whether this one preceded - the tree - or that one - the cistern preceded, he does not cut it down - The owner is not required to cut down his tree. Though we learned earlier (above, mishnah 7 of this chapter), that in the case of a tree planted outside the town in the area meant to be kept clear, it is uprooted whether or not it was planted legally, in this case, only an illegally planted tree is to be uprooted. The difference between the two cases is that in the former, the damage done is to the public. Therefore, for the public weal, the tree is uprooted regardless. In this case, however, where the cistern belongs to an individual, the owner of a tree may only be forced to uproot it if it was planted illegally.

R. Yose says, Even if the cistern preceded the tree he does not cut it down for this one is digging in his and this one is planting in his - According to R. Yose, since no damage was done to the cistern at the time the person planted his tree, and this only appears later (see our comments to the previous mishnah), the owner of the cistern cannot restrain the owner of the tree, and as this one digs in his own, so this one plants in his own. Consequently, though the cistern preceded, he cannot be forced to uproot the tree. The Halakhah follows R. Yose.

BAVA BATRA: CHAPTER 2: MISHNAH 12

A person may not plant a tree near his neighbor's field, unless he places it four amot away from it, both with vines and any tree. If there was a fence between - this one may place it close to the fence on this side, and this one may place it close to the fence on this side. If roots spread into that of his neighbor - he may dig to three tefahim, so as not to impede the plow. If he was digging a cistern, ditch, or cave - he cuts and digs down, and the wood is his."

Kehati

A person may not plant a tree - in his own field, near his neighbor's field - Regardless of whether the neighbor's field is planted with trees or with grain (Rashi; Bartenura), unless he places it four amot away from it - from the boundary - so as to allow room for work on the tree, i.e., for him to plow around his tree without having to intrude into his neighbor's field, both with vines and any tree - Regardless of the type of tree. If there was a fence between - the two fields, this one may place it close to the fence on this side, and this one may place it close to the fence on this side - Each may plant all the way up to the fence, for now there is no fear that either will intrude with his plow into the other's field.

If roots spread into that of his neighbor - If the roots of a tree spread into one's neighbor's field, he may dig to three tefahim - The neighbor is permitted to cut away the roots to a depth of three tefahim, so as not to impede the plow - So that the roots do not disturb him when he plows; nor need the owner of the field fear that by hacking away the roots he may cause the tree to wither, because he is acting within his own property.

If he was digging a cistern, ditch, or cave - If A is digging a cistern, ditch, or cave in his own field and comes across the roots of B's tree that had spread into his field, he cuts and digs down - A is permitted to cut away the roots as he digs down, even if he digs down more than three tefahim, and the wood is his - The wood of the roots then belongs to A. The Gemara explains that the wood of the roots only belongs to A if the place he is digging is at least sixteen amot from where B's tree is located. If, however, the distance is less than sixteen amot, the wood of the roots belongs to B, the owner of the tree, since for the first sixteen amot roots receive their nurture from the tree itself.

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