Translation:Shulchan Aruch/Choshen Mishpat/153

Paragraph 1- If one wants to place a protrusion from his wall over any part of the airspace of another’s courtyard, the owner of the courtyard may stop him because the owner would damage him by observing him while the owner uses the protrusion or hangs something up on it. So long as the owner has not removed the protrusion and the courtyard-owner let it remain there, the owner cannot use the protrusion because he damages the courtyard-owner by seeing him. The courtyard-owner may use the protrusion.

Paragraph 2- If the owner placed the protrusion and the courtyard-owner did not immediately object, the owner of the protrusion has gained rights to it and may use it and prevent the courtyard-owner from using it. There are some who say that in all these cases where one obtains rights, the party would need three years before obtaining those rights. So long as it has not been three years, the courtyard-owner may object. Similarly, the owner must come with a claim just as a case where he obtains a presumption on real property, as was explained above in 146:9. There are those who say that in the case of a protrusion less than a tefach, the owner can never obtain rights, and the courtyard-owner may object whenever he wants. If he does not object and lets the protrusion remain there, the courtyard owner may use the protrusion, but the owner may not.

Paragraph 3- If the protrusion was a tefach he would obtain rights in the airspace opposite the protrusion. If the courtyard-owner wants to build under the protrusion and nullify the use of the protrusion, the owner may stop him. If the protrusion is less than a tefach, the owner would not obtain rights in the airspace of the courtyard and whenever the courtyard-owner wants to build under it and nullify its use, the owner of the protrusion will not be able to stop him.

Paragraph 4- If the protrusion was a tefach wide and took up four tefachim in the length of the other’s courtyard or if it protruded one tefach by four tefachim along the length of the wall, and the courtyard-owner did not object, the owner would obtain rights to four by four and if he wants he may expand the protrusion until it is four tefachim long by four tefachim wide. If he took possession with a protrusion of a tefach by 10 tefachim long, he cannot complete the protrusion to that amount. He can only make it four tefachim and no more. If the protrusion was a tefach by three tefachim, he cannot expand it at all. He must leave it as is. The courtyard-owner cannot build anything in the airspace of his courtyard under the protrusion unless he leaves a space of 10 tefachim underneath that the owner can use. If the courtyard-owner wants to place a protrusion on the other’s wall, the owner of the wall can object, even if the protrusion is less than a tefach.

Paragraph 5- There are those who write that this is all in the case where the other’s courtyard does not have any entrance or window. In the case of a courtyard belonging to partners where there are entrances and windows, however, if the owner wants to create a protrusion in front of the window in order to be able to use it, the other party cannot object because the owner can see out his window regardless so what damage is being done. Furthermore, the other party cannot build even without the protrusions because of the owner’s windows. There are those who write that the courtyard-owner would not be able to object to those protrusions that emerge from a tiled roof in order to protect the wall from rain and the owner would not obtain any rights and when the other wants to build he must remove them.

Paragraph 6- If one wants to create a pipe over another's courtyard so that water can flow there or he wants to make a gutter on his wall so that water will flow down onto the other’s courtyard, the courtyard-owner may stop him. If the courtyard-owner does not object, the owner will obtain rights to the pipe. There are those who say that here too he would need to use the pipe for three years and have a claim but otherwise he would not obtain rights. If the owner later wants to close up the pipe, the courtyard-owner may stop him because just as the owner of the roof has obtained the right to pour his water on the other’s courtyard, so too has the courtyard-owner obtained the right for the owner’s water to come into his possession. If, however, the roof-owner destroyed the pipe and the courtyard-owner saw and was silent, he has forfeited his rights because it is an immediate waiver just as we say with respect to closing up a window. Similarly, if the roof-owner removes his gutter in a way that the other waived his rights, the waiver would be effective immediately and the courtyard-owner would not be able to put it back. If, however, the wall fell and remained that way for many years, he can rebuild it when he wants with the gutter. If the courtyard-owner performed some kind of action that shows he does not want the gutter and the roof-owner was silent, the silence would qualify as a waiver.

Paragraph 7- If the roof-owner wants to remove the pipe from one side to another side or if the pipe was long and he wanted to shorten it, the courtyard-owner cannot stop him because he only has the right to the water of the roof, which is coming to his courtyard regardless.

Paragraph 8- Similarly, if the courtyard-owner want to build under the pipe, the roof-owner cannot stop him because a pipe is not like a protrusion which is made in order to be used and requires airspace, but is just made to allow water to flow. Because the roof-owner only has obtained the rights for his water to be received in the pipe, if the courtyard-owner wants to collect the water with a vessel or pipe, he may do so. He cannot, however, tell the pipe-owner to turn the pipe to another direction or to make any changes at all. He cannot even take a long pipe and shorten it in a case where the pipe-owner may care. In a case where he wouldn’t care, we would force the pipe-owner to allow it via “midas sidom” so long as his water would flow efficiently.

Paragraph 9- If Reuven wants to have what’s pouring from his roof directed towards the public domain, the people of the public domain may stop him. The same is true where one member of an alley wants to direct what’s pouring out from his roof into the alley and damage one whose wall is adjacent to the alley, even though the wall-owner has no right to the alley where the water will be poured into.

Paragraph 10- If one poured water from his roof onto another’s courtyard and the courtyard-owner did not object and the roof-owner has now obtained rights and the water was scattered in different places and the roof-owner wants to gather them in one place by making a pipe, he may do so. Similarly, if the water was coming to one place via a pipe and he wants to place it along the width of the wall and have it scattered, he may do so. He can even build a tepee-type structure on his roof so that the water will go down quickly to the courtyard because he has obtained rights for this water to go down to the other’s courtyard.

Paragraph 11- If one wants to raise the pouring water so that it comes from a higher place, which will certainly increase the damage to the courtyard, we would not allow him to do so. The same applies to anything similar. There are those that permit in this case as well. If the roof-owner wants to lower the pipe, the courtyard-owner may stop him because the courtyard-owner had the ability to build underneath the pipe and now that it will be lower he will not be able to build that low.

Paragraph 12- If Reuven had a house next to Shimon’s courtyard, the water from his roof was pouring into Shimon’s courtyard, Reuven’s house fell, Shimon subsequently built a house in the courtyard, Reuven acquired the rights to receive Shimon’s water in his ruins, Reuven subsequently rebuilt his ruins and had his water go into Shimon’s courtyard as it was originally, Shimon’s water that he had acquired from Reuven is now going onto Reuven’s roof and then going into Shimon’s courtyard with Reuven’s water [See Sma] and Shimon claims that he does not want Reuven’s water and that, on the contrary, Reuven should be accepting his water, Shimon is in the right. If Reuven obtained rights for his water to go onto Shimon’s roof and Shimon now wants to raise his roof, Shimon must leave the size of a tube in the original place so that Reuven does not lose out. If someone obtained rights in another’s courtyard to pour out one washing-worth of water, the courtyard-owner can object to him pouring five washing-worth. Similarly, if he obtained rights to pour rainwater he cannot pour washing water. With respect to someone who pours into his own property via a gutter that goes through another’s courtyard, however, even if he only obtained rights for one thing he can pour whatever he wants since he is pouring into his own possession.

Paragraph 13- If one erects a small ladder that does not have four rails against the wall in another’s courtyard or field, he would not obtain rights on such damage and whenever the courtyard-owner wants he can build next to the ladder and nullify its use. If the ladder-owner erected the ladder with nails, he would obtain rights. If the ladder was large and had four or more rails, the ladder-owner would obtain rights. If the courtyard-owner wants to build and nullify the ladder, the ladder-owner may stop him until he builds with the appropriate separation because the courtyard-owner has granted him the right to erect a large ladder. Thus, when the roof-owner comes to erect a large ladder, the courtyard-owner can object so that he does not obtain rights. If, however, he comes to erect a small ladder, the courtyard-owner cannot object because we say to him he will suffer no loss considering that he can take it whenever he wants.

Paragraph 14- If Reuven and Shimon were partners on a wall between them, each of them can dig on their side and put a beam of any size going into their property. Even if one of them added a beam and the other did not for a long time, he may add one when wants because half of the wall is his. Neither of the partners has the ability to put more weight on the wall than is the accepted custom.

Paragraph 15- If the wall only belonged to Reuven, Shimon cannot use it.

Paragraph 16- If Shimon dug into such a wall and inserted a beam and Reuven was silent and did not object, Shimon has obtained the rights to the place of this beam. Even if the beam was small and Shimon wanted to swap it with a large and thick beam he may do so. With respect to obtaining rights for a ladder and insertion of beams, there are those who say he would need possession for three years and a claim. There are those that disagree in all these cases of obtaining rights.

Paragraph 17- If the beam was a temporary hut, Shimon would not obtain rights by default the first 30 days because Reuven can say he did not waive anything to Shimon and just let the fixture remain there because it was temporary. Once 30 days has passed, Shimon would obtain rights because it is no longer temporary. If Shimon had a built a Sukkah for Sukkos, he would not obtain rights for the seven days of Sukkos, but he would obtain rights once the seven days had passed. If Shimon attached the head of the beam to the wall with mud, he would immediately obtain rights, so long as he can prove that Reuven assisted him or saw and did not object.

Paragraph 18- If a person obtain rights for a beam on a wall, he cannot put in a second beam because the other party only waived one beam. When is this true? Where the beam-owner admits that the wall does not belong to him but to the other party and such other party waived the entry of the this beam. If, however, the beam-owner claims he is a partner on the wall, because he used the wall for one bream he is believed and may use the entire wall once he takes a heses oath that he is a partner on the entire wall. There are those who say that this is only where he says that the wall was originally a partnership between the two of them. If, however, he confesses that originally the wall belonged to the other party, the insertion of the beams would not constitute proof on the actual wall unless he put roofing on it. There are others that say that there is no distinction between the cases and he would obtain rights to divide the stones of the wall in the event the wall fell, but he would not obtain rights to a place on the wall.

Paragraph 19- If Reuven’s beams were in the wall and there were holes dug on Shimon’s side for insertion of breams, Shimon would not obtain rights to insert beams and he cannot claim he was a partner on the wall because he has made no use of the wall. Reuven can claim he dug the holes on Shimon’s side so that they would be ready if Shimon ever purchased the right or asked me and I agreed so that Shimon can insert the beams without digging the wall and shaking the wall while digging.

Paragraph 20- If Reuven obtained rights to insert beams in another’s known wall and that wall fell and the owner rebuilt it, Reuven has no right to insert the beams in the new wall. Thus, if the wall was shaky and Reuven wants to renovate and repair it, the owner can stop him. If Reuven built the foundation of his wall two tefachim past the actual wall into Shimon’s courtyard and comes with a claim and presumption of ownership, he obtains rights above the wall all the way up. Even though the wall is not wide on top, Reuven can say he allowed the wall to go into his property and now he wants to return it to its property place. He must swear that he is not infringing on Shimon’s property. It seems to me that this is only in a place without a local custom. If, however, it is a place where the local custom is to lengthen the foundation, such as our countries, Reuven would only have the rights to the foundation.