My Jewish neighbor is flattening his front garden to make it street level. There was a three story tree on the boundary that belongs to me.
We knew that al pi din he can remove all roots in his garden. However, he cut the ball root under our boundary as well since he claims that in many years it will affect the retaining wall.
Three days later the tree fell down and cost me 700$ to remove so i can get out of the house.
He claims this is the case of סימן קנה סעיף ל and he is Pottur. I feel that talks about יבש האילן which takes time, and discusses indirect damage, which is evident from סעיף לב. But this is a direct case of חיציו which is in סימן תטז and he is liable.
[The law of the land in NYC is that he is liable to pay all fees.]
Who is right?
Under the circumstances it appears that he is liable to pay the expenses.
The case in Choshen Mishpat 155:30 discusses somebody who dug under his own property, and not under his fellow’s property.
The case in Choshen Mishapt 416 is certainly more similar. Although the se’if speaks about the direct damages to the property, this is also a case of direct damage in that the tree blocked up the property and rendered it unworthy of use.
Note that this cannot be a substitute for agreed arbitration, for which both sides need to agree.