Question
I live in a neighborhood of private homes with backyards. My neighbor loves cats and puts out food for them in his backyard which attracts cats to his yard which borders on my bedroom. The problem is that the cats stay there all night and they yell, cry and make other loud noises which disturb my sleep throughout the night since they are right under my window. Is there anything I can do to force him to stop feeding them in his yard?
Answer
This is a typical issue of nizkei shecheinim. Your neighbor wants to use his property to feed cats and you want to sleep at night in your bedroom. Neither of you intends to damage the other but your respective interests clash with each other and the question is which of you must yield to the other.
The case where the Mishna (BB 25B) teaches the basic principle, concerns one neighbor who had a water pit in his yard and another neighbor who planted a tree in his yard whose roots will eventually damage the water pit. The first position in the Mishna is that the owner of the tree must cut down his tree since the pit was dug first and the tree's roots will eventually damage the pit. The second position, the position of R. Yosi, is that we can't force the owner of the tree to remove his tree since he planted it on his own property.
The subsequent Gemara makes two critical points. One is that the position of R. Yosi is authoritative.
The second is that in certain situations known as girei delei-literally "shooting his arrows", R. Yosi agrees that the victim can force his neighbor to cease his activity. This second point states that a person may not shoot arrows from his property onto his neighbor's property and claim that he may do so because his action is done within his own property. Therefore, when we have to decide a question like yours, we have to examine whether the action is comparable to shooting arrows or not.
In your case your claim is that your neighbor's actions cause noise that disturbs your sleep. The Mishna (BB 20B) discusses a similar issue and, according to most Rishonim (with the exception of the Rambam whose opinion is ruled by SA but not the Ramo), rules that a neighbor may not prevent his craftsman neighbor from making noise on his property, in a case where noise was necessary in order to engage in his trade.
However, each case must be judged on its specific conditions and what is critical for your situation is a responsa of the Rivosh that is ruled by the Ramo (156, 2). The Rivosh (res 196) was asked to rule on a dispute between neighbor A who had weavers on his property and neighbor B who was disturbed by this activity. One of B's complaints was that the noise from the weavers' banging caused his sick wife to suffer from headaches. The Rivosh ruled that even though the Mishna (BB 20B) rules that a craftsman may bang on his property, nevertheless, if his neighbor is sick, he has the right to force the banging to cease because banging that disturbs a sick neighbor is considered like throwing arrows. If neighbor B did not have a sick wife, he could not have demanded that A cease weaving because the noise is considered acceptable. But since his wife was sick, he could force A to cease weaving on his property.
Modern day poskim (e.g., Darkei Choshen 1, page 237) rule that disturbing noise during hours when people customarily sleep is like noise that disturbs a sick person, because even healthy people require their sleep, in order to maintain their health. Therefore, a resident can force his neighbor to refrain from noisy activities at night.
However, your situation differs from the situation discussed by the Rivosh since your neighbor is not making the disturbing noise. Rather he is engaging in an activity that attracts cats and it is the cats that disturb your sleep. This is called gromo degirei-he is causing arrows to be thrown at you.
The case in the Gemara (BB 22 B) where the Rishonim discuss this issue is where bloodletters engaged in their profession in the field that was adjacent to the property of the amoro Rav Yosef. This activity attracted ravens that damaged Rav Yosef's property. The Gemara writes that Rav Yosef forced the bloodletters to end their practice with the argument that it is forbidden for one to cause damage to another person. Since Rav Yosef was able to force them to cease their bloodletting it must be that what they did is classified as girei delei.
The Rishonim argue about why the activity of the bloodletters is girei delei. The approach of Tosafos (BB 26A), the Rambam (Shecheinim 11, 5) – and that is the ruling of the SA (155, 39) – is that since the damage that was done by the ravens is girei delei and the bloodletters were the cause of the ravens, they must stop. This is because one can even prevent his neighbor from engaging in an activity that causes girei delei.
However, many Rishonim, including Rabbeinu Yonah, the Rashbo and others (in their commentary to this Gemara) and this is the ruling of the Rosh (BB 2, 28), maintain that one may not prevent someone from engaging in an activity even if it causes damage in a manner that constitutes girei delei. They explain that Rav Yosef was able to force them to refrain from bloodletting because the bloodletters would wave at the ravens which caused them to fly onto Rav Yosef's property. Waving at the ravens is like directly throwing an arrow.
Thus, we have learned that there is a dispute if one can prevent his neighbor from causing damage by others in a manner that is girei delei. This dispute applies to your situation since we learned that making noise in a manner that disturbs a neighbor's sleep at night is considered girei delei. When your neighbor feeds the cats and thereby causes them to make noise under your window which disturbs your sleep, he is causing damage that is girei delei.
Based on the above discussion, the SA would rule that you can force your neighbor to stop. However, since many Rishonim rule that you cannot force him to stop because he only causes cats to disturb you, beis din would not force him to stop based on this reason.
However, there are several other factors to consider.
The first factor is the importance of your neighbor's activity. When the Tosefta (BB 1, 8) and Yerushalmi (BB 2, 10) cite R. Yosi's authoritative position concerning the tree and the pool they cite him as arguing that the reason the owner of the pit could not force the owner of the tree to uproot his tree is because the purpose of owning a field is to plant trees. Based on this, the Ritsbo (a ba'al Hatosefos whose ruling is cited by Hago'os Maimoniyos (Shecheinim 10, 4)) ruled that we only allow a neighbor to engage in a damaging activity that is not girei delei if the activity is essential for the neighbor to live or to engage in his livelihood. If the activity is not essential, according to the Ritsbo the neighbor must stop even if his activity is not girei delei.
The ruling of the Ritsbo was applied by the Radvaz (1, 551) to force someone to refrain from a non-essential activity that disturbed his neighbor. Since feeding cats is not an essential use of one's property, this is a reason you can force your neighbor to cease feeding the cats in his yard.
A second reason is a ruling of the Rosh (res 108, 10). In his situation, neighbor A dug a pit in his property to capture rainwater. However, when the pit became full with water the excess water flowed into neighbor B's property and caused damage. The Rosh ruled that since the only way neighbor B could protect himself was to build an expensive stone structure, neighbor A must ensure that his water does not go into neighbor B's property even though the damage was not being done in a manner that constitutes girei delei. The ruling of the Rosh is cited by the Tur (siman 155) and ruled by the SA (155, 20). The Taz (155, 21) writes that everyone agrees in case the victim cannot do anything to prevent the damage.
This ruling is cited by many including the Nesivos (155, 3) who discusses damages suffered by a downstairs neighbor as a result of his upstairs neighbor's water usage. He says that even when the water damage is not girei delei, we only require the downstairs neighbor to take preventive action in order to avoid being damaged if the expense is small. If the expense of the downstairs neighbor is significant, the upstairs neighbor must prevent his neighbor from being damaged even if the damage is not girei delei.
This also is the ruling of the Chazon Ish (BB 14, 13) whenever it is possible for the one who damages to refrain from damaging. The Chazon Ish maintains that everyone agrees with this ruling of the Rosh.
Furthermore, he explains that the proper understanding of the Rosh is not that this is an exception to the general rule that only in cases of girei delei do we force the one who damages to remove or distance his object. Rather the characterization of something as being girei delei depends on who, from the standpoint of the Rabbis, has a right. If the action of the one who is damaging is permitted, then we do not characterize his actions as girei but rather as acting only within his own property. However, if it is not permitted then we consider him as acting in the victim's property and call it girei. The Mishkan Shalom (chapter 2, footnote 6) writes that all the opinions cited by the Tur agree with this ruling.
Applying this to your situation, these poskim all hold that since it costs your neighbor nothing to refrain from feeding cats in his property and it is difficult and costly for you to prevent the noise from disturbing your sleep, this is a reason you can force your neighbor to stop feeding cats in his yard.
We note further that even though we saw earlier that there is a dispute whether one can prevent his neighbor from engaging in an action which only indirectly causes girei delei, nevertheless, in situations like yours where it is much less costly and/or much easier for the one who is causing the disturbance to refrain from his activity, we require him to stop (or, in some cases, pay money) even if he is only indirectly causing girei delei. We can prove this because the case of the above-cited Rosh is the source of this principle and there the one who dug the water hole only indirectly caused damages to his neighbor. Yet the Rosh still ruled that he can be forced to stop because it is much less costly for him to do so in order to avoid damaging.
We note further that R. Yona (BB 26A) cites an opinion of the Rishonim that even in cases when the victim cannot force his neighbor to prevent the damage, nevertheless it is proper for the neighbor to cease his activity since, "It is not proper for someone who is a chassid (a pious Jew) to cause damage to others."
Even though many Rishonim (e.g., Ramban, Rashbo) do not agree that this is the explanation of that Gemara, nevertheless, they may agree that such behavior is not proper for one who wishes to be a chassid.
In conclusion: For at least two reasons you can force your neighbor to stop feeding cats in his yard: For one because feeding cats is not an essential use of his yard and also because it is far less costly and much easier for him to refrain from his behavior than for you to prevent the damage he does to you.
Additionally, there are two other reasons that some very important Rishonim would rule that he must refrain: 1 – The Rambam who maintains that one may not make noise that disturbs his neighbor and, 2 – Rishonim like Tosafos and the Rambam who maintain that one can force his neighbor to refrain from an activity that indirectly causes girei. Both of these opinions are ruled by SA but not the Ramo.
Finally, you can point out to your neighbor that one who wishes to be a pious Jew should refrain from such behavior.