THE JERUSALEM INSTITUTE OF JEWISH LAW 
Rabbi Emanuel Quint, Dean

Lesson # 115 (part three) • Distancing the Tort

In this our last lesson dealing with Reuven distancing the tort he commits from Shimon’s property we shall commence with Reuven giving off noxious odors and particles from his property. If Reuven is close to an area that was inhabited before he wished to commence his activities, Reuven may not maintain a permanent threshing floor and other activities that give off noxious odors and/or chaff, unless they are at least 90 feet from the nearest inhabitants. If Reuven commenced his activities and then the area becomes inhabited, Reuven will have to move his facilities to the prescribed distance from the inhabited area, and after he does so, the other inhabitants will have to compensate Reuven for moving his facilities.

If it is a nonpermanent threshing floor, or Reuven does other activities that will raise dust or other particles, Reuven should do so at a distance so that the particles will not reach his neighbors, even with an ordinary wind.
Reuven must keep his food processing facilities, and tanneries at least 90 feet from the nearest inhabited area. A tannery may be set up only if it is in a direction where the wind will not carry the odors to the populated areas. 

Reuven on his property works with blood or meats and the like and birds come for the meat, carrion, or blood, and their noise or shrieking or their bloodied feet cause Reuven's neighbor Shimon harm because he is a sick or sensitive man, or cause damage to Shimon's fruit when the birds alight on his fruit trees with their bloodied feet. Reuven must cease such activities unless he does it at a distance that will not cause such damages. The topic of trees is commonly brought up between neighbors. Reuven's field is planted with vines or trees. Shimon, Reuven's contiguous neighbor, then wishes to plant vines or trees on his own property close to Reuven's vines or trees. Shimon must plant his vines or trees at least seven feet away from Reuven's vines or trees. If there is a fence separating the properties, then Reuven cannot acquire an easement over Shimon's property and each may plant right up to his boundary. If both Reuven and Shimon decide to plant trees and vines close to the boundary between their properties, each should plant at least three-and-one-half feet from the boundary. Each community must establish standards for the distances to separate vines and trees. If Reuven's tree overhangs Shimon's property, Shimon may cut away the branches of Reuven's tree to a height sufficient to permit Shimon the use of an ox to pull a plow beneath the tree or the height necessary for a machine to pass with a driver thereon. If the tree throws an excessive shade or drops leaves onto Shimon's property, Shimon may cut off all the branches overhanging his property. Similarly, if Reuven's tree overhangs Shimon's irrigated field or an orchard planted with trees, Shimon may cut down all the branches overhanging his property. 

If Reuven's tree overhangs a public domain, Reuven must cut off the branches so that a vehicle can pass underneath the overhang. The same law applies if Reuven wishes to have a projection from his property pass onto the public domain, it must be high enough above the ground so that traffic and pedestrians can pass by unhindered. However, Reuven cannot construct a bridge from one house to another house over the public domain (or shared courtyard) if it will block out the sun from those passing underneath. Reuven's tree overhangs Shimon's roof, making it difficult for Shimon to make repairs to his roof. Shimon may cut off the branches that interfere with his repairs. 

A tree stands on the boundary line separating the lands of Reuven and Shimon. Each is entitled to half of the fruit of the tree even if the branches are more on the side of one of the neighbors. 

Reuven has a tree on his own land close to Shimon's property. The roots from Reuven's tree spread onto Shimon's property. If Shimon is not digging a well or other structure on his property, he may nevertheless dig down to a depth of about eleven inches and cut away the roots, and Shimon need not be concerned that the cutting away of the roots will cause damage to Reuven's tree, or cause the tree to dry up. If Shimon is digging a well or a foundation or other structure on his property, he may cut the roots of Reuven's trees no matter how deep, and not be concerned with the damage caused to the tree. 

In all of the aforesaid situations the damage is caused simultaneously 
with the act being done. The law is different if the damage will be caused some time after the acts of the injuring party have ceased, and no damage is caused while the act is taking place. In such situations, it is incumbent on the injured party to distance himself from the reach of the damage. 

As seen from the above, the Rabbis have set certain standards that limit Reuven's use of his property if it will harm Shimon. There is a view that if Reuven violates the distance standards, he is still not liable for damages incurred, except for damages caused by vibrations and for damages occurring from heat or fire. There is also an opinion that Reuven is liable in all instances if he violates the standards except for the situations where the wind carried the particles, when there is no liability. The latter theory is that if he has violated the standards set by the Rabbis, this is automatically deemed to be negligent conduct. If Reuven adheres to the standards laid down by the Rabbis and/or the community's authorities, then Reuven is not liable for any damages caused.

If Reuven maintains any of the things that are stated in this lesson without observing the proper distances, and Shimon, upon observing these activities, does not protest, Shimon has waived his right to protest, and Reuven has acquired the right to maintain such conduct. Shimon may protest even if most other persons could abide the nuisance without protesting. The waiver may also arise if Shimon aids Reuven in his activities, or Shimon specifically grants or sells Reuven permission to conduct such activities without distancing these activities according to the laws above stated. The waivers do not apply to the following four situations: smoke emanating from Reuven's property; odors emanating from Reuven's property, such as from a bathroom, cesspool, septic tanks, or sewage lines; dust particles emanating from Reuven's property; and ground vibrations emanating from Reuven's property. Shimon may complain even after many years of silence.

The subject matter of this lesson is more fully discussed in Vol. V, Ch.155 of A Restatement of Rabbinic Civil Law by E. Quint, published by Jason Aronson, Inc. and on sale at local Judaica bookstores. 

Questions to quint@inter.net.il