THE JERUSALEM INSTITUTE OF JEWISH LAW 
Rabbi Emanuel Quint, Dean

Lesson # 119 (part two) • Fences between Gardens

This lesson continues in the same vein as the last lesson. Instead of a courtyard, the parties Reuven and Shimon own adjacent gardens or grainfields. 

In the case of courtyards, the theory is that the parties constantly use their yards so that there must be a wall between the two yards affording the parties privacy and to prevent overviewing. In the case of gardens and grainfields, there is very little activity that Reuven does that needs privacy. The fence is rather to keep persons off Reuven's property. Thus the needs and requirements are different regarding each. 

Reuven and Shimon have gardens adjacent to each other. They could have become neighbors because they could have voluntarily divided a jointly owned garden that may or may not have been large enough to permit Beth Din to compel them to divide. Or they could have divided pursuant to an order of the Beth Din where the garden was large enough for Beth Din to order a division upon the request of one of the owners. Or they could have purchased the gardens from one person or from two different persons, neither of whom had theretofore erected a fence. They must erect a fence between the gardens, unless the community practice is not to have a dividing fence. (In cases of courtyards discussed in last week’s lesson, the community practice is of no import.) Where Reuven cannot compel Shimon to participate in erecting a fence, Reuven may do it at his own expense, on the dividing line of both Reuven and Shimon, each contributing one-half of the width of the fence. Shimon cannot compel Reuven to build the entire fence on Reuven's property. If Reuven purchases a garden from Shimon without discussing the question of fences, and this garden is in the midst of other gardens owned by Shimon, Reuven may be compelled to erect a fence between his garden and the other gardens owned by Shimon. This holds true even if the custom of the community is not to build fences between gardens. 

Reuven and Shimon have grainfields adjacent to each other. They need not erect a fence between the grainfields, unless the community practice is to do so. Where Reuven cannot compel Shimon to participate in erecting a fence, Reuven may do it at his own expense, on the dividing line of both Reuven and Shimon, each contributing one-half of the width of the fence. Shimon cannot compel Reuven to build the entire fence on Reuven’s property. 

If Reuven purchases a grainfield from Shimon without discussing the question of fences, and this grainfield is in the midst of other grainfields owned by Shimon, Reuven may be compelled to erect a fence between his grainfield and the other grainfields owned by Shimon. This holds true even if the custom of the community is not to build fences between grainfields. There is also the opinion that this holds true only if the custom of the community is to erect fences between grainfields.

There is an opinion that the height of the fence between gardens and between grainfields is seven feet, the same as the size of the fence between courtyards. This opinion holds that the reason for the fence between gardens and between grainfields is because of overviewing and thus the requirement of a seven-foot fence. There is another opinion that the fence need be only about thirty-seven inches in height. This opinion holds that the purpose of the fence is not to prevent overviewing, since there is little likelihood of overviewing in gardens and grainfields. The purpose of the fence is to keep neighbors out of the property. If Shimon would climb over the fence and enter Reuven's property. it would be visible to all that he had crossed the boundary line. 

Assume a situation where the practice in the community is not to have fences either between gardens or between grainfields. Reuven wants a fence and Shimon, his neighbor, states that he does not want a fence. Reuven may build the fence completely on his side of the boundary line. Reuven may not build the fence half on the property of Shimon and half on his own property. In constructing the fence, Reuven should get witnesses that he constructed the fence on his side of the boundary at his own expense, or obtain a writing from Shimon that the fence belongs solely to Reuven. Similarly, if the fence is constructed by both Reuven and Shimon, there should be some writing, or witnesses, or distinctive markings on the fence to show such dual ownership. 

If the fence has no markings, then if it falls down, it will be assumed, that it belonged to both Reuven and Shimon. 

Many people who came here on aliyah may remember some of the old Jewish neighborhoods in Brooklyn and the Bronx. These areas now look like they have been bombed out. They stand in ruins. Sometimes only some of the buildings have been turned into ruins. Or sometimes a building is razed to make room for a new building to be built on the plot where the building was razed. What are the obligations of the owner of that ruin to fence in his ruin? The fencing in is not done to restrict outsiders or neighbors from overviewing since the ruin is not used by the owner to conduct activities for which he needs privacy. Rather the fences discussed here are to keep people from entering onto the ruin, so that the ruin will not be further damaged in the event that the owner wants to rebuild it or to prevent people from getting hurt.

Reuven has a ruin that is surrounded by ruins belonging to Shimon. Shimon fences in his ruins on three sides, such as on the northern, eastern, and southern sides, which fence also includes Reuven's ruin within the three fences. Reuven need not contribute any moneys for such fences, since his ruin is still reachable from the western side. The three fences by themselves did not benefit Reuven. If Shimon then fences in the western side so that Reuven's ruin is now fenced in on all four sides, Reuven must bear half of the cost of all four fences up to a height of seven feet, provided that the fences stand on the ground of both Reuven and Shimon. 

Assume that Shimon fenced in only three sides, and Reuven fences in the fourth side. This shows that Reuven is satisfied that the fences are there and he must pay his proportionate share of the fences as determined by Beth Din, depending on many factors, such as how much of the fences are on Reuven's property, what are the proportionate areas of Reuven and Shimon, and which areas face public streets. 

All of the foregoing obligations for Reuven to pay a proportionate share when Shimon enclosed all four sides apply if they were enclosed so as to separate the ruin of Reuven from the ruins of Shimon. But if the fences separated both their ruins from the public, and there is still no fence between Reuven's ruin and Shimon's ruin, Reuven may pay less than his proportionate share of all four fences. 

The subject matter of this lesson is more fully discussed in Vol. V, Ch.158 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