You wrote last week that if a tree fell into the neighbor’s property there is a dispute whether the tree owner can simply declare his tree ownerless and absolve himself of responsibility to clear away the tree . Your article couldn’t have been timelier for me because I have this situation. I have been warning my neighbor for years that his tree is in danger of falling into my property and he should please remove the tree. After refusing all my entreaties, finally last week his tree fell into my yard. Can he simply declare his tree ownerless and make me pay for clearing away his tree?
As you will recall, the reason Tosafos says that the owner can declare the tree ownerless is because he is a mafkir nezokov achar nefillas oness-one who renders his property ownerless after it fell due to circumstances beyond its owner’s control. However, the Gemara (Bava Kama 29A) states that if it fell due to its owner’s negligence then he cannot absolve himself of responsibility even if he declares the fallen object as hefkeir (ownerless).
For example, the Gemara discusses one who tripped and as a result his jug fell and broke in the public domain. The Gemara says that according to those opinions that classify tripping as negligence, the owner of the jug is responsible for future damages even if he declares his broken jug as being ownerless. Thus your question is whether your situation is considered negligence on the part of your neighbor since he failed to heed your warnings.
A similar case is discussed in the Mishna (Bava Metseyo 117B). The Mishna writes that if a person was given a deadline to fell his tree, then, if it fell before the deadline he is not responsible for the ensuing damages. But if he failed to heed the deadline and the deadline passed, he is liable for damages. The Mishna does not state explicitly which damages it is discussing: those that resulted directly from the tree’s fall e.g. it fell on a car and smashed the car, or those that occurred after the tree fell e.g. someone tripped over the tree.
The Rosh addresses this issue and says that the Mishna is discussing both of these damages. He explains that the reason the deadline is critical with regard to damages that occurred after the tree fell is because if it fell before the deadline the owner is classified as an oness, because he was allowed to leave the tree until the deadline. However, if it fell after the deadline he is considered negligent in failing to heed the deadline.
Thus we have a ruling that will determine whether your neighbor can, according to any opinion, declare his tree ownerless. If he was given a deadline and failed to fell the tree by the deadline he will be responsible for the cost of the tree’s removal according to all opinions.
The important issue to address now is whether your warnings suffice.
This situation is discussed by the Shulchan Aruch in two places. In one place (Choshen Mishpot 416) he discusses the case of the Mishna where the tree fell. The Ramo cites a Rashbo (Res. 3, 164) who states that only a deadline that was issued by beis din is relevant. Deadlines that were set by others are meaningless. The Rashbo was discussing a situation which is almost identical with yours. Shimon asked his neighbor Reuven to fix his wall which demarcated the boundary between their respective properties because it was obviously precarious. However, Reuven chose to ignore Shimon’s repeated requests. In the end, Reuven’s wall fell on Shimon’s roof causing it to cave in. The Rashbo absolved Reuven of liability because the warnings were not issued by beis din.
The Gra (416, 2) writes that the source for this ruling is the Gemara (Bava Metseyo 118A) that explains the Mishna that beis din normally sets the deadline for thirty days from the time the warning is issued. Since the Gemara gives the amount of time that beis din allots as describing the deadline of the Mishna, it indicates that the one issuing the deadline in the Mishna is beis din.
In the other place, the Shulchan Aruch (307, 3) cites a ruling of the Rosh (Responsa 87, 6). The Rosh was asked concerning a person who stored wheat in a storage facility that was adjacent to and under other apartments. The neighbors complained that the walls were being damaged and repeatedly asked the one who stored the wheat to remove his wheat since the facility was not suitable for storing wheat and eventually it will lead to the collapse of the walls. The wheat owner failed to heed their warnings and eventually the wall collapsed, causing damage to many neighbors. The Rosh cites the above Mishna as his source for ruling that since the neighbors warned the wheat owner and he was not granted a grace period, he is classified as being negligent and he is liable for the ensuing damages. The two rulings seem contradictory because the Rosh does not require beis din to set deadlines.
The Toras Chaim (Commentary to Bovo Kamo 6B) addresses this question and says that the above-mentioned Rashbo, who requires a warning from beis din, is talking only in case it is not clear-cut that the wall is likely to collapse. If it is clear that there is a danger, the Rashbo also agrees that we do not require the involvement of beis din. This certainly is a possible distinction, since in the Rashbo’s response it only says that the neighbor complained, whereas in the case of the Rosh many people warned the wheat owner of the impending danger.
The Nesivos (307, 1) is also troubled by the apparent contradiction and resolves it by saying that in the situation of the Rosh, from the outset, the one who stored wheat acted improperly because it was not a place that was suitable for wheat storage.
It should be noted further that even the Rashbo certainly does not require a Jewish beis din. If the local authorities determine that the wall is dangerous it would be the same since they are the local experts.
In conclusion, if you were the only one who complained to the neighbor but the danger was not obvious and no local authority ordered that the tree must be removed, then it is a dispute (the dispute which was cited in last week’s article) if the neighbor can declare the tree ownerless and avoid responsibility to remove the tree. Therefore, you will not be able to force him to remove his tree.
In the future, if the situation recurs, turn to beis din or to the local authorities and if they order the tree felled, your neighbor will not be able to avoid removing the debris if he fails to heed their ruling.