Question
In last week's article you wrote that if A's tree hangs over his neighbor B's property in a manner that interferes with B's use of his property, B may cut down the branches that interfere with his use. However, B cannot force A to cut the branches himself. Next to my house there is a shul and they decided to build their succo in the courtyard adjacent to the shul. They told me that I have to pay to cut down the branches that overhang their succo. I paid but it seems from your article that I could have told them to pay. Is my observation correct?
Answer
We saw in last week's article that the SA writes clearly that the victim is allowed to cut down the protruding branches and but the owner of the branches need not cut them down. Thus it seems that you are correct and you paid for something that you were not liable to pay.
However, we find in the Gemara that discusses the laws of neighborly damages a situation where the law differentiates between damages that affect a private individual and those that affect a community. Therefore, we will begin with that law and see if this makes a difference in your case or not.
The Mishna rules that, for different reasons, one must distance his trees from a city and also from his neighbor's water pit. In both cases if the tree was planted after the victim was already there, the damaged party may demand that the tree be removed. However, the Mishna writes that if the tree was damaging his neighbor's water pit, the owner of the tree is entitled to compensation for the loss of his tree, whereas if the tree was damaging the population of a city, the owner of the tree is not entitled to compensation.
The Gemara (BB 24B) suggests two explanations for this dichotomy. One explanation is that the law is stricter with one whose property damages an entire city since many people are being damaged whereas in the case of the water pit only one person is damaged. The second explanation is that if the victim is an entire city Chazal feared that no individual will take up the public cause since there is a tendency for people to shirk responsibility when there are others who have equal responsibility. By contrast, if the victim is an individual, we can assume that the victim will ensure that his needs are satisfied.
Thus, we see that sometimes the law does differentiate between damages that are incurred by an individual and those incurred by a community. Therefore, we have to examine if there is a difference in your situation or not.
When the branches of a person's tree overhang a public thoroughfare, the Mishna (BB 27B) rules that they must be trimmed to ensure that they will not interfere with camel riders in the public thoroughfare. The Gemara (BB 60A) records that once both Rav Yannai, an early amoro, and another individual had trees that overhung the public thoroughfare in a manner that interfered with those who rode their camels there. The townspeople did not complain about Rav Yannai's tree but they did complain about the other individual's tree. That individual asked Rav Yannai if he had to heed the people's demand. Rav Yannai first trimmed his own tree and then told the other individual that he must heed their demand.
Here we see that Rav Yannai trimmed his tree himself and did not just tell the townspeople that they may trim his tree. This seems to indicate that when the party who suffers from the tree's branches is the townspeople, the owner of the tree has to trim his tree himself and not the victims.
However, the Meiri explicitly writes (both in BB 60B and BB 27B) that even when the overhang affects the public in general those who suffer from the overhang have the right to trim the offending tree but the owner of the tree is not required to trim it himself. However, if the owner of the tree is a talmid chacham, like Rav Yannai was, he should trim it himself. He explains that the reason is, as Rav Yannai himself said, that one first has to be perfect before he can perfect others. Since Rav Yannai had to rule that the other person has to allow his tree to be trimmed, he first had to trim his own tree in order to serve as a role model for the other individual.
Since the damaged party here was the public and yet, according to the Meiri, only one who is a talmid chacham must trim the tree himself, we see that for ordinary people the one who is disturbed by the branches is allowed to trim the tree but the owner of the tree is not obligated to trim it. Thus, according to the Meiri, the shul was not correct in forcing you to pay for trimming your tree.
It seems that the Rambam (Nizkei Momon 13, 26) maintains that if the public is disturbed by a private individual's tree, the owner of the tree is the one who is obligated to trim the tree. This is because he uses the singular form in recording the law:"A tree that overhangs the public thoroughfare, he trims it so that it will not interfere with one who rides his camel in the public thoroughfare."
In fact, it is evident that the Ma'asei Rokeach understood the Rambam this way. The proof is because he asks why the Rambam rules that the tree must be trimmed. From the incident involving Rav Yannai – who said that the reason he originally did not trim his tree was because he thought the townspeople were happier if he did not trim his tree because the branches shaded the public property – it is evident that one cannot assume that the townspeople desire that every tree that overhangs the public thoroughfare should be trimmed. This shows that the Ma'asei Rokeach understood that the Rambam requires the owner of the tree to trim his tree, because if the Rambam holds just that the townspeople are allowed to trim the tree his question would be moot, since they certainly would only trim the tree if they were disturbed by the branches.
However, it is not certain that the Ma'asei Rokeach's interpretation of the Rambam that the owner of the tree is obligated to trim the tree is correct. It may be that when the Rambam writes that the owner of the tree trims it he only means that the owner of the tree has the right to trim the tree himself but not that he is obligated to trim it. An indication that this is the correct interpretation of the Rambam is that he follows this law with the law that in case the branches of one's tree overhang the banks of a river and interfere with boat traffic, beis din gives permission for others to cut down the branches that interfere with traffic without notifying the tree's owner. It seems that an owner of a tree would prefer to cut down the branches himself in order to avoid damage to the tree. According to this interpretation the Rambam is not ruling that the owner must cut off the branches but rather that we give him a chance to do it himself.
Besides the Meiri and Rambam who address this case directly we can deduce the position of other Rishonim based on a general dispute between various Rishonim concerning damages to the public. We recall from the previous article that the reason that when the one who suffers from the growth of the tree is an individual the owner of the tree does not have to pay for cutting the tree, is because it is only after the branches grow from the tree that the branches begin interfering with others. This type of damage is not considered girei delei and one is only responsible for damages that are classified as girei delei.
The reason your question seems to be the subject of a dispute is that the Rishonim dispute whether the rule that one whose property damages is only responsible if the damages are classified as girei delei applies also when the one being damaged is the public.
The Rishon who maintains that if the victim is the public the owner of the source of the damage is responsible to remove this source even if it damages in a manner that is not classified as girei delei is the Ra'avan (res. 1). He uses this principle to explain why the Mishna (BB 25A) rules that one must distance a carcass that belongs to him from the city a distance of twenty-five amos because of its smell, even though he maintains that this type of damage is not considered girei delei.
His position is disputed by the Ramban (Milchamos 9B), Rashbo and Ran (in their commentary to BB 26A) who write explicitly that even when the entire population of a city is the victim of the damage, if the damage is not classified as girei delei the owner of the source of the damages need not rectify the situation.
Thus, if the damages caused by the overhang of the tree's branches follow the general rules, the Ramban, Rashbo and Ran all rule like the Meiri, namely, that the owner of the branches need not trim his tree even when the tree interferes with traffic on the public thoroughfare.
Returning to your situation where the overhang of your branches interfered with the shul's succo, it seems that perhaps even the Ra'avan would have ruled that you need not trim the tree. One reason is that where the Ra'avan ruled that the owner of the damaging object is responsible, the victim was the entire populace of the town and not a specific group of people. In your situation the only people who were adversely affected were those who attend this shul.
Furthermore, in the case of the tree, the branches overhung public property whereas shul property, unless it is the shul of the municipality, is private property. Thirdly, people usually have their own succo and just use the shul succo for shaking their lulov and esrog, which is just a custom of some but not a required activity and not a universal need. Therefore, it was not critical for the public welfare that your tree be trimmed.
In conclusion: If you had asked before you paid for cutting down the branches, the shul could not have forced you to pay. However, since you already paid, you should not regret what you did because many Rishonim (Rabbeinu Yona and others BB 25B) say that it is a middas chasidus to remove one's damaging object even if it does not damage in a manner that is classified as girei delei.
