Lesson # 108 (part 2) • Easements over a neighbor’s land In this lesson we shall discuss a few of the specific situations that were discussed in the last lesson. If Reuven wishes to set up his gutterpipes so that they will conduct the water from his roof into the public domain, the citizens can obtain an injunction to enjoin him from so doing. The passersby will get wet as the water cascades down, or they will slip in the puddles created by the water on the ground, or they will have to detour around the puddle he creates. Assume that Reuven and Shimon have the entrances to their houses in separate courtyards. The back of Shimon's house faces Reuven's courtyard. Reuven wishes to set up his gutterpipes so that the water will splash onto Shimon's wall, which faces Reuven's courtyard, and flow from Shimon's wall into Reuven's courtyard. Shimon may obtain an injunction to prohibit such action. The reason is that although the water is ending up in Reuven’s courtyard, it will be cascading off Shimon’s wall. When Reuven has the right to use a common sewer that passes over or under Shimon's land, Reuven may use the sewer as much as he needs to and for any type of waste water. But if Reuven has negotiated or acquired a presumption to use a noncommon sewer that passes over or through Shimon's land, he may not increase the amount of waste more than was negotiated or more than he used to use when he acquired the presumption. Each case should be decided individually by Beth Din to see if it is equitable to permit the presumption in the particular case. The wall of Reuven's house is against the boundary line between Reuven and Shimon or close enough so that Reuven cannot place a ladder to fix or paint his house unless the ladder is resting on Shimon's land. If the ladder is classified as a tall ladder, that is, it contains four or more rungs, Reuven can obtain a presumption to maintain his ladder on Shimon' s land. The ladder violates both tests, in that it permits Reuven to overview Shimon's land when Reuven is using the ladder, and prevents Shimon from building on that space if Reuven is going to obtain a presumption permitting him to keep the ladder in that place on Shimon's land. Once Reuven has obtained a presumption, not only can Shimon no longer build upon the land where the ladder rests, he must, when building his own house, provide adequate access for Reuven to get to his ladder. If the ladder is classified as a small ladder, that is, it has fewer than four rungs, then Reuven cannot obtain a presumption to keep the ladder there. Thus there is only one test violated, that of overviewing his land every time he enters upon Shimon's land to use the ladder. If Shimon did not immediately protest, then Reuven may maintain the ladder there but he cannot obtain a presumption for the ladder to remain there. However, Shimon can at any time decide to build on the spot where the ladder is standing and Reuven must remove his ladder. If the small ladder was affixed to the wall by a nail, then Reuven can obtain a presumption for the ladder to remain on Shimon's land. There is a party wall that separates Reuven's house from Shimon's house or Reuven's land from Shimon's land, or Reuven's house from Shimon's land, or Shimon's house from Reuven's land. Both Reuven and Shimon may place beams into cavities that each is able to make in the wall provided that such cavities and beams do not affect the safety of the wall, and such cavities do not reach the property of the other outside of the wall. The failure of Shimon to use the wall after Reuven has commenced to use the wall does not preclude Shimon from deciding to use the wall after some time. Shimon owns the wall that is entirely on his own land on the boundary between his land and that of Reuven. Reuven may not place any object into the wall. If Reuven did place a beam into the wall and if Shimon did not protest, then Reuven has obtained a presumption to keep the beam in the cavity that he made in Shimon's wall. Once Reuven has acquired the presumption, he may replace the original beam that he inserted into the wall with another beam, even if the second beam is larger than the first beam. If the beam was obviously a temporary beam, such as scaffolding, then such maintaining of the beam does not ripen into a presumption if the scaffolding was there for no more than 30 days. If it is maintained there for more than 30 days it is subject to the same laws as any other beam. If the projections into the wall of Shimon were to be used for a tabernacle to celebrate the Holy Days of Tabernacles, then Reuven does not obtain a presumption during the festival but will if the beams remain there beyond the festival. If Reuven attaches the beam into or to Shimon's wall with plaster or other adhesive, Reuven will acquire a presumption immediately after Shimon becomes aware of the plastering and does not protest. The same holds true if Shimon aided Reuven in so attaching his beam into Shimon's wall. If Shimon pleads that he did not know of the plastering or that he did not help Reuven do the plastering, the burden of proof is upon Reuven to prove that Shimon did know or did help. Because Reuven has acquired a presumption regarding maintaining one beam into Shimon's wall does not give him the right to affix or insert more than one beam into Shimon's wall. This holds true if Reuven admits that the wall is Shimon's and Shimon waived his right to make Reuven remove the beam. However, if Reuven does not admit that the wall belongs to Shimon, but rather that he, too, has a share in it, then once he has maintained one beam in the wall he may maintain more beams in the wall if he takes a hesseth oath that from the inception of the wall he had a share in the ownership of the entire wall. Once Reuven obtains a presumption to keep his beams there as a joint owner of the wall, if the wall falls down or is razed, he has a share in the debris together with Shimon. Shimon has a beam in his own wall. There are holes hollowed out on Reuven's side of the wall into which beams can be inserted. Since Reuven has not made use of the holes, he does not have the right to place his beams into those holes or to claim on the basis of the holes that he is a partner in the wall. Shimon can plead that when he made the holes he thought that one day Reuven might purchase the rights to insert his beams into the wall, and that at that time Shimon would not have to dig to hollow out the holes and weaken the wall. The subject matter of this lesson is more fully discussed in Vol. V, Ch.153 of A Restatement of Rabbinic Civil Law by E. Quint, published by Jason Aronson, Inc. and on sale at local Judaica bookstores. [The Lech L'cha Homepage]
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