Parshas Beha’alosecho (Nosso in Chutz Lo’oretz) Who Owns Fruit that Grows on Branches which Overhang Someone’s Property?
There are several fruit trees that overhang my property. I didn’t plant them and they don’t stand on my property but many branches and the fruit on them are over my property. Some of the trees stand on public property and some on my neighbor’s property. Is there any difference? Do I have the right to pick the fruit and keep it for myself? Does it make a difference if my neighbor is Jewish? What if my neighbor doesn’t ask for the fruit, can I just take the fruit and not ask any questions?
The basis for the answer is found in the Gemara (Bava Metsiyo 107A). The Gemara discusses a tree that is situated exactly on the line which demarcates the boundary between fields which belong to two people. The Gemara records a dispute between Rav and Shmuel how to determine ownership of the fruit. The opinion of Rav is that ownership is determined by the location of the fruit: The fruit that hangs over A’s property is his, and that which hangs over B’s property is his. Shmuel disagrees and maintains that the fruit is split equally by the two neighbors.
Tosafos (Bava Metsiyo 107A s.v. ilan) explains that Shmuel maintains that ownership of the fruit is determined exclusively by the location of the roots and not the location of the fruit. If the tree stands on the boundary it is assumed that half of the roots are in A’s property and half in B’s property and that is why Shmuel rules that the fruit is split equally. Tosafos says that the dispute only applies to the above situation. If the tree stands entirely on one neighbor’s property, according to all opinions he is the owner of all the fruit.
Tosafos proves this from the Gemara (Bava Basra 27B) which goes so far as to rule that even if the fruit of a person’s tree overhangs his neighbor’s property, he can bring the fruit for bikurim and recite the pesukim in Chumash that are recited by one who brings bikurim. This is considered conclusive proof that the fruit belongs totally to the owner of the property where the tree is situated, because the one who recites the pesukim must be the owner of the land, as he thanks Hashem for “the land you gave us (me).” The Rosh (Bava Metsiyo 9, 16), who agrees with Tosafos, rules that Shmuel’s opinion is the authoritative opinion. This conforms to the general rule that in monetary issues we follow Shmuel’s opinion in disputes between him and Rav.
The above is ruled by the Shulchan Aruch (Choshen Mishpat 167, 2). The Shulchan Aruch rules that if the tree is situated on the demarcation line the fruit is split evenly even though more branches hang over one neighbor’s property. The Ramo adds that in case the tree stands entirely on one person’s property he is entitled to all of the fruit. The Nesivos (155, 15) explains the Shulchan Aruch as above: if the tree sits on the demarcation line then the determining factor is the roots. Therefore if, for example, two thirds of the roots are in one neighbor’s property then he is entitled to two thirds of the fruit. When the Shulchan Aruch rules that the fruit is split evenly he is referring to the situation where the number of roots in each neighbor’s property is the same.
The above is the law only in case the tree sits on the demarcation line. However if the tree sits entirely on one neighbor’s property he is entitled to all of the fruit. Therefore, in your situation, where the tree sits squarely on your neighbor’s property he is entitled to all of the fruit.
Rav Moshe Feinstein (Iggros Moshe Choshen Mishpot 1, 43) discusses your question about a difference between a Jewish and a non-Jewish neighbor, and he rules that in principle there is no difference. This means that in a country that follows Torah law, there is no difference in this case if the neighbors are Jewish or not. However, in the Diaspora today each country has its own laws. This is very pertinent since the halacha is that when there is an issue between a Jew and a non-Jew we apply both Jewish law and secular law in the sense that if the non-Jew would lose under either Jewish or secular law we rule against the non-Jew. Therefore, even though according to Jewish law your neighbor is the owner of the fruit, if according to a secular court you would be entitled to the fruit, beis din will declare you the owner of the fruit.
Furthermore, you question what to do if the neighbor doesn’t ask for the fruit. Your question is discussed in the Iyunim Bemishpot (1, 25). He derives from a similar Gemara (Bava Metsiyo 119) concerning plants that if the neighbor doesn’t ask for the fruit, we can assume that he has given up hope – he is misya’esh from the fruit. A probable reason for his loss of hope is that he is embarrassed to knock on your door and request permission to pick his fruit. Since he gives up hope, you have the right to pick the fruit.
Similarly, if the trees stand on the public property, you would be able to take the fruit because you can safely assume that no one minds your picking the fruit. This is similar to the ruling of the Shulchan Aruch (359, 1) that a passer-by may remove a small piece of wood from a public fence since no one minds.