Question
We live in the U.S. and a fig tree recently started growing in our yard. We didn’t plant it. Apparently, some seeds fell to the ground in our yard and the tree started growing by itself. I would like to uproot the tree since it may damage nearby sewage pipes but I was told that it is dangerous to do so. Is that correct and if yes, is there anything I can do to get rid of the tree?
Answer
Last week we discussed the question from the halachic perspective-is the action permitted or not. We saw that there are various situations where one is allowed to uproot a fruit tree. One halachic point that required further clarification is whether one can uproot in case there is a doubt i.e. if the circumstances allow one to uproot-does that permit even in case of doubt. For example, in your situation we learned that one may uproot if the tree causes damage. However, you are not certain that the fig tree will damage the pipes. The Chassam Sofer (Yoreh Deah 102) explicitly rules that one must be certain in order to permit cutting down the tree. Therefore, you must first consult an expert to determine if the tree indeed threatens to damage your pipes.
Even if the expert says the tree poses a threat to the pipes we must consider a second factor. As you mentioned in your question, there is still the issue of whether it is dangerous to uproot the fruit tree. As we mentioned last time, the Gemara attributes the death of the son of a prominent Amora to his having cut down a fruit tree.
The Yaavetz (1, 76) was asked whether a shul could cut down a grape vine in order to expand the shul. He permitted based on the Rosh (Bava Kama 8, 15) who rules that one may uproot a fruit tree if one needs to use the place where the tree stands. However, he remains with a doubt whether it is nevertheless, dangerous to cut down the tree. He mentions that the implication of the Gemara is that it is dangerous because the Gemara says the only reason the son of the Amora passed away is because he cut down the tree. If the Gemoro can only find one transgression in a person’s record, obviously he is a big tsaddik and did not violate the Biblical injunction against cutting down a tree. Thus, we see that a person can act within the letter of the law and yet his action is dangerous.
Since the Ya’avetz was uncertain he advised asking a non-Jew to cut it down. The Tzvi Latzaddik (1, 15) is more certain than the Ya’avetz that even when it is permitted to cut down a fruit tree it is dangerous to do so. He uses this to explain another Gemara (Bava Basro 26A) where two Amoro’im were neighbors and the fruit tree of one Amora damaged his neighbor. The owner of the tree agreed that the tree needed to be cut down but told his neighbor that he will have to cut it down himself. The Tzvi Latzaddik, therefore, advises the owner to ask a non-Jew to uproot the tree and replant it in a different place in order to avoid danger.
There are other Poskim who disagree and maintain that whatever is permitted according to the halacha is not dangerous. For example, the Taz (Yoreh Deah siman 116), who only mentions the danger of cutting down a fruit tree and doesn’t even mention the prohibition, brings the Rosh that if one needs the place he may cut down the fruit tree. Furthermore, he writes that he permitted someone to cut down fruit trees in order to construct his house on the place where the fruit trees were situated. Since he didn’t require any precautions it is clear that he maintains that whatever is halachically permitted does not pose a danger.
The Binyan Tzion (1, 61) also addresses this issue. He was asked by someone who needed to purchase a plot in order to build a house and wed. The only plots available had old fruit trees growing on them. He cites the Ya’avetz and refutes all his proofs. He rules that when one is permitted to cut down the tree, as it was in his situation since the place was needed, there is no issue of danger. He agrees however that from a halachic perspective one should do whatever he can steer away from the entire prohibition. Therefore, if possible one should replant the tree in a different place where it will continue bearing fruit, since then one isn’t causing any loss. This is also the ruling of the Chassam Sofer (Yoreh Deah 102) that even when it is permitted to cut down a tree if it is possible to replant in an alternative place one must do so. The rationale is obvious-since it is not necessary to destroy anything we may not do so. In this place the tree is causing problems but in a different place it won’t so we may remove it from this particular place but not destroy the tree.
Other people are careful not to cut down a fruit tree not because of the danger mentioned in the Gemara, but because the Tsavo’as Rabbi Yehuda Hachassid states (seif 45) that one should not cut a fruit bearing tree. For example, the Chida (Chaim Sho’al 1, 23), while agreeing with the Binyan Tsion that according to the Gemara there is no danger in case the halacha permits cutting down the tree, says that the implication of Rabbi Yehuda Hachassid is that one should not cut down the tree even when the halacha permits. He bases his statement on the fact that most of the things that Rabbi Yehuda Hachassid states that one should avoid doing are actions which the halacha permits (since he didn’t have to tell people to avoid violating the halacha). Therefore, even if the halacha permits cutting down the tree and the Gemara does not state that it is dangerous, the Chida maintains that one should not cut down the tree himself in order to conform with the Tsavo’o.
There is a general issue whether non-descendants of Rabbi Yehuda Hachassid have to follow his tsavo’o. In any case, the Chida as a result of the tsavo’o advised his questioner to ask a non-Jew to uproot the tree and replant it elsewhere. He adds that one should ask the one who uproots the tree to try to uproot all of the roots. However, even if in the end he does not succeed, the Jew does not violate the halacha. The reason is that as long as it is possible that the gardener can uproot all the roots it is not a pesik reisho (a certain outcome) that he will destroy any of the roots and is therefore, permitted.
The issue is also discussed by modern poskim. For example, Rav Shlomo Zalman Auerbach (Minchas Shlomo 2, 102), after permitting uprooting a tree which produced sweet lemons for which there wasn’t much of a market in order to plant something which is more lucrative, admonished the questioner to even spend money and hire a gentile to uproot tree and not do it himself. Likewise, the Chazon Ish (Ma’ase Ish 5, page 112) permitted someone to uproot a fruit tree that stood on the place where he wished to build his house but advised him to have a non-Jew uproot the tree. Also Rav Tzvi Pessach Frank (Orach Chaim 2: 101, 102) in two cases where he permitted cutting down a fruit tree said that the owner should have a gentile cut down the tree and the Jew should say that the gentile is not his shliach.
In conclusion: You should consult with an expert to determine whether the tree will damage your sewage pipes. If the expert says that it will then you should try to find someone who wants the tree and have it uprooted with all the roots and enough soil to allow it to be replanted in a more suitable location. If you can’t find a place to replant it, you should ask a non-Jew to uproot the tree.
