BS”D

 

Question

I have two issues with my neighbor concerning which of us is responsible for disposal of certain garbage items.

Question 1

My neighbor’s tree recently fell into my backyard. Boruch Hashem no one was hurt and nothing was damaged. Do I have to take care of removing the tree from my premises or since it was his tree he is totally responsible.

Answer

It would seem that this is similar to a situation which is discussed in a Mishna (Bovo Metsiyo 117B). The Mishna writes about a neighbor who constructed a wall to separate between his property and his neighbor’s garden. When the wall fell into the neighbor’s garden, the owner of the garden told the owner of the wall to dispose of the wall. The wall owner replied, “You can keep the stones and take them for yourself”. The Mishna rules that if the owner of the garden is not interested in the stones he can force the wall owner to remove the stones. Therefore, it would seem that if you don’t want the tree you can force the tree owner to dispose of his tree.

However, Tosafos (118A Omar lei) asks why indeed wasn’t the tree owner able to free himself of responsibility since we have a rule (Bovo Kamo 29A) that if by accident a person’s property fell into the public domain, the owner may absolve himself of responsibility for his property by declaring the property ownerless (hefkeir). Therefore here too the tree owner should be able to avoid responsibility by declaring the stones ownerless. Tosafos’ answer really agrees with his question. He just explains that in the case of the Mishna the owner of the wall wasn’t serious when he told his neighbor that he can keep the stones, because the owner really wanted to keep the stones for himself in order to rebuild the wall and just told the neighbor he can have the stones in order to buy time until he was ready to rebuild the wall. According to this explanation, in your case if the neighbor is serious you would have to remove the tree.

However, Tosafos Horosh answers Tosafos’ question in a different manner. He explains that one can only absolve himself from future responsibility by declaring his property ownerless but one cannot absolve himself for responsibility for past damages by declaring his property ownerless. The Gemoro which allowed one to absolve himself was discussing whether the owner will be liable in case people trip over his property (normally one is liable as the owner of an obstacle-bor) in the future. Since when the object fell he was not at fault and before anyone tripped over the object the owner already removed himself from ownership he is absolved from liability. However, in the case of the wall we are discussing damages which incurred immediately when the wall fell since when the wall fell it rendered part of his neighbor’s property unusable. Since this happened before the owner declared his stones to be ownerless he remains liable. If one follows this approach, your neighbor is responsible for removing the tree and if he fails to do so, beis din will require him to do so.

We should note that the above discussion only concerns whether beis din may force the owner to dispose of his property. However, as far as the heavenly court is concerned the owner cannot absolve himself of responsibility in any case since the Gemara (Bava Kamo 29A) rules that while one may absolve himself of liability in beis din, he is nevertheless chayav bedenei shomayim.

In conclusion, it is certainly proper for the tree owner to dispose of the fallen tree since he is chayav bedenei shomayim. One should never treat chayav bedenei shomayim lightly. We previously cited the Meiri whoo rules that one who shirks this responsibility is not a kosher witness!  However, concerning whether beis din can force him to do so depends on a dispute among the Rishonim.

Question 2

My tree overhangs my neighbor’s property. You wrote in a previous article that I need not cut off the branches but if they interfere with my neighbor’s use of his property, he may cut off the branches. Therefore, my neighbor cut off some branches. However, after he cut them off he threw them into my yard and told me they’re my branches and I should dispose of them myself. Can I force him to remove them from my property?

Answer

As we have seen from the previous answer the key issue is ownership. Therefore, we need to determine whether your neighbor’s claim that the branches are yours is correct.

Tosafos (Bovo Metseyo 107A) writes that if a tree stands in a person’s property and overhangs the neighbor’s property the branches and fruit belong entirely to the one in whose property the tree stands. In fact, they are so much the property of this person that he may bring this fruit as bekurim and say that is the first fruit of his land. Therefore, your neighbor is correct that the branches are yours.  Therefore, you cannot force your neighbor to remove the branches from your yard.

 

 

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