Lesson # 420 Laws of Injuries to Neighbors We recently had a case presented to our Beit Din regarding neighbors and easements, which we did not take since I knew one of the parties very well and the other side asked me to stay on the Beit Din in spite of this. I decided not to do so. I recommended a rabbi who was familiar with these laws to take the case which he said he would. We shall begin this lesson with a discussion of easements over a neighbor's land. Reuven and Shimon are neighbors, each owning a parcel of land next to the parcel of the another owner. Reuven wants to build an addition to the structure on his own land, but a beam or spar that will be used in the construction of the addition will protrude over Shimon's vacant land. Shimon may, by order of the Beit Din, prevent Reuven from extending his spar even minutely over the airspace of Shimon's land. Shimon may so prevent him because it interferes with Shimon's privacy when Reuven uses the spar. It is assumed that Reuven will use the spar to hang things thereon, and when he does so he will almost instinctively gaze upon Shimon's land and there is thus an invasion of Shimon's privacy. Assume that Reuven did put up such a spar and he is ordered by Beit Din to remove it. Until he does he may not use it, but Shimon may use it since it is on Shimon's land. The reasons given why Reuven may not use the airspace of Shimon are that there may be overviewing, a serious tort; and also there may a deprivation of Shimon to be able to avail himself of the use of that part of his own land since Reuven has already placed his spar there. Just as Shimon can prevent Reuven from extending Reuven's spar over Shimon's airspace, Shimon can prevent Reuven from inserting a spar or even a small nail into Shimon's wall, which is at the edge of Shimon's boundary line. Although Reuven will not be guilty of overviewing if he inserts his spar into Shimon's wall, and will not be prohibiting Shimon the use of the wall (since Shimon could not build under Reuven's spar in any case since he does not own the space under Reuven's spar), Shimon can plead that the spar inserted into the wall weakens the structure of the wall. Reuven can, however, extend a spar just short of Shimon's wall as long as it is on his own property and there is no danger of overviewing. Since one of the reasons for enjoining Reuven from overhanging his spar over Shimon's airspace is that Reuven may overview Shimon's activities on his land, if Reuven is already overviewing Shimon's land this tort and this reason would not be applicable. Thus if Reuven already has window openings toward Shimon's land and Reuven is already legally overviewing Shimon's land, then Reuven may extend his spar out of the building on his own land within his boundary even if its use would enable Reuven to overlook Shimon's land. Reuven may have acquired a presumption to maintain doors or windows facing Shimon's land. Reuven may have purchased the house from Shimon who built it with windows that were then facing his own land. Or Reuven and Shimon might have been partners and divided the land with the understanding that each would be permitted to open a certain number of windows and doors facing their mutual courtyards or divided courtyards. Assume that Reuven has a tile roof that requires spars to be extended beyond the roof to keep the tiles in place and the spar and perhaps even the eaves extend somewhat into Shimon's airspace. Reuven has these eaves so that when rainwater or snow falls from the sloped roof it will not fall against the wall of his own house and damage it. Reuven may keep his spars and eaves there without obtaining a presumption to continually maintain these spars and eaves. Whenever Shimon wants to build in the space occupied by theses spars and eaves, he may demand that Reuven remove the spars and eaves. Currently in most communities there are laws requiring a person who builds a house to build it far enough away from the boundary line so that his spars and eaves do not extend beyond his boundary line onto his neighbor's land. Shimon can prevent Reuven from placing a gutter pipe or spout that will extend into Shimon's airspace or from placing a leader within Reuven's own boundary on his own wall that will conduct water onto Shimon's land. If Shimon does not protest any such actions by Reuven, Reuven will acquire a presumption. Assuming that Reuven has acquired a presumption to keep his gutter pipe and/or his spout in the airspace above Shimon's land, Shimon may build under the gutter pipes or the spout, and Reuven cannot complain that the construction work on Shimon's structure will damage the gutter pipe or the spout. Shimon may then have the water collected in a receptacle or in a pipe. But Shimon cannot insist that Reuven change the location of the gutter pipe or spout or even shorten it, unless Beit Din decides that it will not cause any harm to Reuven to change the location or to shorten it. Assuming that Reuven has acquired a presumption to have his water flow from his roof to Shimon's roof. Shimon may raise the height of his roof. In doing so, however, he must provide access for the flow of the water from Reuven's roof onto Shimon's land and Shimon's roof and gutter pipes must be recessed sufficiently so that they will not cause water to flow onto Reuven's land or roof. If Reuven has acquired a presumption for the gutter pipe, spout or leader, he may not remove them or block them up without the permission of Shimon. For just as Reuven obtained a presumption to maintain these pipes, so did Shimon simultaneously obtain a presumption to have the water flow onto his land. If Reuven does remove his pipes in such instance, Shimon must make an immediate protest and failing to do so, will be deemed to be his acquiescence to Reuven removing his gutter pipe. This will also prevent Reuven from once again placing a gutter pipe there based on the old presumption. If the wall on which the gutter pipes were resting collapses, whenever Reuven rebuilds the wall he may also replace his gutter pipe thereon in the same situation as before. If Reuven, during the time that the wall is down, sees Shimon constructing a structure that will prevent Reuven from placing his gutter pipes on a reconstructed wall and Reuven does not protest Shimon's actions, Reuven has lost his right to thereafter place his gutter pipes when he reconstructs the wall. However, If Reuven removes the roof from his own house, he may also remove the gutter pipes without Shimon's permission. The subject matter of this lesson is more fully discussed in A Restatement of Rabbinic Civil Law by E. Quint. Copies of all volumes can be purchased at local Judaica bookstores. Questions to quint@inter.net.il [The Parshat Sh'mini Homepage]
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