Lesson # 114 (part two) • Distancing the Tort In the last lesson we began the discussion of Reuven using his property and such use damages the property of Shimon. We now continue this discussion with other types of use that cause such damage to Shimon. As in the prior lesson Reuven and Shimon each own an apartment in a two-floor condominium. Reuven owns the lower floor and Shimon owns the upper floor. We shall first examine the topic of water damage. Assume that water leaks down from Shimon's upper-floor apartment to Reuven's lower-floor apartment and causes damage to Reuven's apartment and personal property. If Shimon did not provide adequate cement between his apartment and that of Reuven and the water immediately upon leaving Shimon's premises flowed into Reuven's premises, Shimon is liable for the damages caused, since this is similar to Shimon shooting a shell into Reuven’s premises. Shimon is responsible for the repairs to the floor. However, if Shimon provided an adequate cement floor and the water oozed slowly through the cement and then leaked into Reuven's premises, Shimon is not liable for the damages caused. The reason is that in such a case Shimon is not the direct cause of the damages, but rather the indirect cause. This is true if the crack in the cement floor is very tiny and was not evident to Shimon. However, if the crack in the floor is easily discernible, then Shimon must repair the crack and is responsible for the damages if he fails to make the repairs. If the water never enters Shimon's apartment to flow into Reuven's apartment, then Shimon is not liable. For example, if rainwater flows down the side of the building first passing over the wall owned by Shimon and then entering Reuven's apartment and causing damage, Shimon is not liable. However, if the rain first enters Shimon's premises and then leaks down to Reuven's premises, then Shimon is liable if the leak is through a crack in his floor that is discernible to him. Another topic is that of damages caused to a neighbor’s wall. We shall assume that Shimon first built a wall on his side of the property line that separates his property from the property of Reuven. Thereafter Reuven desires to do any of the things hereinafter described. Unless otherwise noted, the wall may be built from bricks or stones and the same laws will apply. Every Beth Din shall judge each situation and advise Reuven and Shimon in each case, since property rights are involved, specifically prohibiting Reuven from the full use of his property. If damages are caused, Beth Din shall determine if Reuven’s actions are proximate cause of the damage to Shimon’s property. Reuven must keep his mounds of olive refuse, manure, fertilizer, salt, cement, lime, rocks, or wet earth, at least three handbreadths (tefachim) from Shimon's wall, or in the alternative. Reuven places plaster on Shimon's wall to prevent these products from causing in damage to Shimon's wall. In this situation there is a difference between the types of walls. If the wall is a brick wall, the three tefachim rule applies; if the wall is made of stone, one tefach is sufficient, and if the wall is made of polished stone. Reuven may not maintain a small mill for grinding grains or other objects that cause vibrations within three tefachim of Shimon's wall. The vibrations may cause Shimon's wall to collapse, and the noise may cause Shimon to be frightened. Similarly, Reuven must keep the stone on which he beats clothes until they become white at a distance of at least seven feet from Shimon's wall. In many industrialized societies this last law would seem remote. However, in many societies to this day plowing is still done with animal-drawn plows, and women still beat the clothes when washing them. Reuven may not dig a well, cistern, trench, vault or other type of pit, water canal, water pool, water channel, a pool to wash clothes, or any other pit containing water unless it is at least three tefachim from Shimon's wall. In addition, Reuven must apply plaster or cement to the pit or other opening in order to prevent Reuven's water from seeping through and weakening Shimon's wall. These laws apply even if the pit does not constantly contain water. All these laws are subject to the advice of Beth Din. The next topic is a nuisance caused b vibrations. Reuven crushes or beats grains or other items in his own premises. While he beats them he causes Shimon's walls to stir to the extent that the coverings on Shimon's barrels rattle. Since this is the same as causing damage with one's arrows, Reuven must cease such work unless he moves his activities to a place where he will not cause such stir on Shimon's premises. Reuven will have to cease his work even if the walls do not stir, but the noise and vibrations cause Shimon to get a headache. If Reuven causes damages while the premises are stirring, he is liable to Shimon. The next topic is that of excavations. Shimon owns a tract of land that is not the type of land on which wells will be dug. Reuven may dig wells on his land that is contiguous to Shimon's land right up to the boundary between the two tracts of land. After Reuven has dug his wells, Shimon may not dig a well unless the outside rim of his well is at least eleven inches away from the rim of Reuven's well. The various distances depend upon the type of soil and the incline, if any, of the soil. If Shimon's land is the type that lends itself to the digging of wells, then Reuven may not dig a well on his property unless its rim is at least eleven inches away from Shimon's property line. When Shimon digs his well it must be at least eleven inches away from Reuven's property. Shimon digs a trench to capture falling rainwater on his own land. If the rain waters overflow the trench and enter upon Reuven's land, Shimon must cease permitting the waters to so overflow; he must reroute his trench so that the waters remain on his own land. Rabbi Moshe Isserles writes that it is for the experts of the community to set distances even if Reuven’s nuisance is separated from Shimon’s property by a public thoroughfare. 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. [The Vayeishev Homepage]
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