Question
My neighbor has a pine tree in his backyard whose branches are beginning to protrude onto my backyard. At present the branches are not causing me any damage and are not limiting my use of my backyard. However, since if I do not cut them off now, they may grow tall and block the light from entering my windows I would like to cut off all the branches that are beginning to enter my backyard and treat them so that they will not grow in my direction in the future. If I wait until they grow tall and then cut them off it will cost much more than if I do it now. May I do that? Can I bill my neighbor for the cost?
Answer
It seems that the Mishna (BB 27B) addresses your question and rules that you cannot do as you propose. However, this is an excellent illustration that shows that one must understand the halocho in order to apply it correctly.
The Mishna rules that the owner of a field may cut off branches of a tree that stands on his neighbor's field and protrude onto his property that interfere with his ability to plow his field. Furthermore, if the tree is a carob or sycamore tree the owner of the neighboring field may cut off all the branches that overhang his field since these trees cast a large shadow which interferes with the field's ability to produce. Additionally, if the field which the tree overhangs needs rain in order to thrive, one may cut off any branches that overhang the field since all shade is detrimental to this type of field.
The Mishna records a dispute concerning non-fruit-bearing trees. One Tanno, Abba Shaul, maintains that the field owner may cut off all the branches that overhang his field. The Rabbonon, whose opinion is authoritative, maintain that he may not.
In order to answer your question, we must understand the basis and the nature of these rules. We should first note that according to Tosafos (BM 107A) and other Rishonim (and that is the ruling of the SA (167, 2)) all of the fruit and the branches that grow on the tree, even those that overhang the neighbor's property, belong to the one on whose land the tree stands. Tosafos writes that this is one of Yehoshua's conditions: a land owner may not prevent his neighbor from using his airspace in order to grow his tree.
In fact, the Gemara (ibid) states that the person on whose property the tree stands may even bring the fruit that grows on the branches that overhang his neighbor's field as bikurim (the first fruit that one must bring to the Beis Hamikdosh) and recite the pesukim that one says in the Beis Hamikdosh on this occasion. This is a striking ruling since one of the phrases that one says when he brings the fruit in the Beis Hamikdosh is that he has brought the first fruit that grew on "the land that Hashem gave me." In fact, this fruit really grew on his neighbor's land since it was on a branch that grew over his neighbor's field and therefore the fruit derived nutrients from his neighbor's land. Thus, it is surprising that he can say that such fruit grew on the land that Hashem gave him.
The Gemara says that the reason the fruit's owner can make this declaration is because when Yehoshua parceled out the land of Eretz Yisroel he did it on condition that the one receiving the land must allow his neighbor's tree to overhang his land. Since the owner of the tree has the right to have his tree overhang his neighbor's land, he can state that the fruit grew on his land!
It is interesting that Rav Moshe Feinstein (Dibros Moshe BB 2, 20, 51) points out that if it weren't for Yehoshua's condition, the owner of the field could have charged his neighbor rent for using his air rights. The Kehillas Yakov (BB 16 para. beg. Venire) of the Steipler writes similarly that if it weren't for the condition of Yehoshua the owner of the tree would have been a thief because his branches derived sustenance from his neighbor's property. Rav Moshe writes that this shows that the basis for these rules cannot be because it is middas sedom (Sedom-like behavior for a person to prevent someone else from benefitting from his possessions if he will not suffer a loss), since the field-owner would suffer a loss of rightful potential income as a result of these rules. Rather, Yehoshua promulgated a rule that one must provide his neighbor with free use of his air rights and underground rights if it does not interfere with his own use of his property. A tree owner has a right to use his neighbor's air rights for his tree.
The Yad Rama (BB 2, 21) explains that even though the owner of the land owns the ground under his land and the airspace above his land, nevertheless, since the normal use of his land is to grow a crop, he may only prevent his neighbor from using the ground under his land and the airspace above his land if the neighbor uses it in a manner that interferes with his own normal use of his land. Therefore, he may only cut off those of his neighbor's roots and branches that interfere with his ability to plow or harvest his land. However, he may not prevent his neighbor from using the ground under his land and the airspace above his land if it does not interfere with his own normal use of his land.
From the Rishonim we can derive that this principle guides us in deciding any situation that involves a neighbor's use of one's property and is not limited to the cases that are discussed in the Gemara. One source is a responsa of a Gaon that is cited by the Tur (CM 155, 41) and ruled by SA (155, 28).
The Gaon was asked to rule in a situation of neighbor A whose fig tree hung over neighbor B's house and prevented B from tarring his roof. A argued that the reason the fig tree prevented B from tarring his roof was because B had built another floor onto his house and therefore B should not be allowed to cut A's fig tree since B caused his own problem. The Gaon ruled against A. He explained that even if it was in fact B's building that caused the fig tree to interfere with B's ability to tar his roof, nevertheless, B can remove the fig tree because B may use his property in any matter he wishes and may remove anything that prevents him from doing so.
He explains that the rules of the Mishna only enable A to use the air above B's property that is not being used by B. But B was fully within his rights in building another floor onto his house. If, as a result, A's fig tree interfered with his ability to maintain his property, B may cut down the tree.
Another illustration of this principle is a ruling of the Rif (BB 32B) that a person may build a porch that overhangs the public thoroughfare if it is high enough that it will not disturb traffic underneath. Similarly, the Rama (BB 2, 21) rules that one may build a balcony above a courtyard which is jointly-owned by many neighbors if it does not disturb traffic. His argument is that the normal use of the courtyard is to traverse the courtyard and not to build a structure. Therefore, the other owners of the courtyard may not object to the construction of the balcony since it does not disturb their ability to traverse the courtyard.
Thus, the basis for the rulings of the Mishna is that a person may not prevent someone from using his air rights or underground rights as long as that use does not disturb either his own present use of his property or a use that the property is destined to be used for. Furthermore, the source for this principle is that it was a condition that was stipulated by Yehoshua when he parceled out Eretz Yisroel.
This principle also is the basis for understanding the dispute between Abba Shaul and the Rabbonon about a tree without fruit. The Rambam (Commentary to the Mishna) and the Yad Rama (2, 118) explain that Abba Shaul's rationale was that since branches in themselves are not very valuable, the owner of the land underneath is not obligated to allow them to protrude onto his property. The reason the Rabbonon disagree is because they maintain that the owner of the field is obligated to even allow a tree whose entire value is its branches to use his property in order to thrive.
Based on the above, since nowadays people do not grow trees in order to produce branches (which they once used for firewood) there is no reason to require a field owner to allow branches of his neighbor's non-fruit bearing tree to overhang his property since they are of no monetary value to the owner of the tree. The reason the Mishna ruled otherwise is because in the time of the Gemara people valued the branches of trees since they were used for heat as we find in many places in the Gemara. (e.g., See Brochos 5B where the Gemara writes that Rav Huna was punished since he did not give his sharecropper the branches he was entitled to. Gemara Succo 40A says generally the purpose of wood was its use as fuel.)
We should note that based on the Gemara (BK 81B) that states in reference to other edicts of Yehoshua that they apply even to Jews living outside Eretz Yisroel, the Ramban (BB 26A) writes that this edict also applies to Jews living outside of Eretz Yisroel. Apparently, this is the opinion of SA as well since he generally does not record laws that only apply in Eretz Yisroel. (See for example the Sema (155, 48) who explains that the reason SA omitted a ruling of the Gemara that pertains to neighborly relations is because it does not apply outside of Eretz Yisroel.)
Concerning your second question whether you can charge your neighbor for the cost of trimming his tree, we see from the expressions used by the Gemara (BB 27B) and the SA (155, 28) that you, the victim, have to take care of the trimming on your own. The reason for this is because the damage that is done by the growth of the branches into your property is not girei delei (See Ketsos 155, 4) since the tree needed to grow from the place where your neighbor planted it in order to damage you. The rule is that one is not liable for damages that are not classified as girei delei. We note that the Meiri (BB 60A), based on the Gemara, states that it is a middas chassidus for your neighbor to pay the bill.
In conclusion: You may cut down any branches that grow into your property but you cannot force your neighbor to pay your expenses.
