Babylonian Talmud: Tractate Baba Bathra

Folio 23a

under which cuppers used to sit [and let blood], and ravens used to collect to suck up the blood, and they used to fly on to the date trees and damage them. So R. Joseph said to the cuppers. 'Take away your croakers from here.' Said Abaye to him, 'But they are only the indirect cause?' — He replied: 'R. Tobi bar Mattanah has expressly said: This is equivalent to saying that it is prohibited to cause damage indirectly.' But [R. Joseph] had given them a right [to let blood under the trees]?¹  — R. Nahman has said in the name of Rabbah b. Abbuha; There is no legal title to things causing damage.²  But are we not told in a gloss on this statement that R. Mari says it refers [for instance] to smoke, and R. Zebid to a privy?³  — Said R. Joseph to him, 'I am very sensitive, and these ravens are as offensive to me as smoke or a privy.'

MISHNAH. A PIGEON COTE MUST BE KEPT FIFTY CUBITS FROM A TOWN.⁴  A MAN SHOULD NOT PUT UP A PIGEON COTE ON HIS OWN ESTATE UNLESS THERE IS A CLEAR SPACE OF FIFTY CUBITS ALL ROUND. R. JUDAH SAYS, THE SPACE SHOULD BE SUFFICIENT FOR THE SOWING OF FOUR KOR,⁵  WHICH IS AS MUCH AS A BIRD FLIES AT A TIME. IF, HOWEVER, HE BUYS IT [FROM ANOTHER] WITH ONLY THE SPACE FOR SOWING A QUARTER OF A KAB ROUND IT,⁶  HE HAS A RIGHT TO KEEP IT.

GEMARA. No more than fifty cubits? — Does not this contradict the following: 'Snares may be spread for pigeons only at a distance of thirty ris⁷  from a Yishub [town or village]'?⁸  — Abaye replied: pigeons cover much ground. but they eat their fill within fifty cubits of their starting point. And do they fly no further than thirty ris?⁹  Has it not been taught: 'Where there are towns and villages. nets should not be spread even within a hundred miles'? — R. Joseph said: This means, where there is a succession of vineyards;¹⁰  Raba said: It means, where there is a succession of pigeon cotes.¹⁰  Then should not the prohibition be laid down because of the pigeon cotes themselves?¹¹  — If you like I can answer that they [the intermediate cotes] belong to [the man who sets the snares] himself; and if you like that they belong to heathens,¹²  and if you like that they are no-one's property.

R. JUDAH SAYS THE SPACE SHOULD BE SUFFICIENT FOR THE SOWING OF FOUR… HE HAS A RIGHT etc. R. papa [or, according to others, R. Zebid] said: This implies that the Beth Din may plead the cause¹³  of an heir and may plead the cause of a purchaser. But we have already learnt the rule about the heir in the following statement: 'He who claims [a property] qua heir has no need to plead [that his father bought the property]'?¹⁴  — The point of R. Zebid's statement lies in the reference to the purchaser. But in regard to the purchaser also we have learnt that 'if a man buys a courtyard in which are beams and balconies projecting over the main thoroughfare, he has a legal right to retain them'?¹⁵  — Both statements are necessary. For if I had only the statement regarding the main thoroughfare to go by, I should say that the reason there [for allowing the right to stand] is because the courtyard had been originally drawn back from the main thoroughfare [to allow room for the projection], or that the public had waived its right¹⁶  [to have them removed] in his favour, but this reason would not apply here [to the pigeon cote]. And if I had only the statement here, I would say that the reason is because, having only an individual to deal with, the owner obtained his consent, or that the other waived his right in his favour, but in the case of the public, who is there to consent and who is there to allow? Hence both statements are required.

HE HAS A RIGHT TO KEEP IT. But has not R. Nahman said in the name of Rabbah b. Abbuha that there is no legal title to things which cause damage? — R. Mari replied that this applies to such a thing as smoke; R. Zebid, to such a thing as a privy.¹⁷

1. Either (a) by allowing them to do so for three years without protest. or (b) by selling them the ground under the trees. V. Tosaf.
2. Cf. infra p. 116
3. Which are both irritating and offensive.
4. So that the pigeons should not eat the seeds of the vegetable gardens, or those spread on the roofs (Tosaf.).
5. I.e. one Beth-Kor on each side. A Beth. Kor (space for the sowing of a kor) = 7500 square cubits.
6. About 105 square cubits.
7. About four miles.
8. For fear that he may snare pigeons belonging to others. V. B.K. 79b.
9. This question has reference to the rule about snares, not to the rule about dovecotes.
10. So that the birds can fly from one to another.
11. And not because of the pigeons of a town.
12. V. B.K. Mishnah 37b. (Sonc. ed.).
13. I.e., if a man inherits a property from his father and another man claims it, if it is proved that the father occupied it for three years, the Beth-Din can plead on behalf of the heir that the father had originally bought it from the man, whereas they would not do so for the father, if he did not put forward the plea on his own account. Similarly with a man who has bought a field which is then claimed by a third party.
14. Because, if the father has occupied it three years. the Beth-Din assume this without his pleading it. V. infra 410.
15. Infra 60a. Which is exactly similar to the rule laid down here, that the purchaser has a right to retain the dovecotes. Why then should both statements be made?
16. According to Tosaf., through the 'seven headmen of the town', the boni viri, at a public meeting.
17. V. supra p. 115. n. 1. But a pigeon cote is in a different category.

MISHNAH. A YOUNG PIGEON WHICH IS FOUND ON THE GROUND WITHIN FIFTY CUBITS FROM A COTE BELONGS TO THE OWNER OF THE COTE; IF FOUND BEYOND FIFTY CUBITS FROM THE COTE, IT BELONGS TO THE FINDER. IF IT IS FOUND BETWEEN TWO COTES IT BELONGS TO THE ONE TO WHOSE COTE IT IS NEARER. IF IT IS EXACTLY MIDWAY, THEY MUST SHARE IT.

GEMARA. R. Hanina says: If a case can be decided one way on the ground of 'majority' and another way on the ground of 'nearness',¹  we decide on the ground of 'majority'. And although the plea of 'nearness' equally with the plea of 'majority' derives its warrant from the Scripture,²  yet the plea of 'majority' carries greater weight.

R. Zera questioned this. Scripture tells us, And it shall come to pass that the city nearest unto the slain man … [shall bring a heifer]. that is to say, even though there are other towns [in the vicinity] with a larger population? — We assume that there are none. But [if 'majority' is the decisive factor] why not take the biggest town anywhere? — Scripture speaks of a town surrounded by mountains.³

We learnt: A YOUNG PIGEON WHICH IS FOUND ON THE GROUND WITHIN FIFTY CUBITS OF A COTE BELONGS TO THE OWNER OF THE COTE; and this even though there may be a bigger cote in the neighbourhood? We assume that there is not. If that is so, then what of the next clause: IF FOUND BEYOND FIFTY CUBITS FROM THE COTE, IT BELONGS TO THE FINDER? Now if there are no other cotes in the neighbourhood, there can be no question that the bird comes from this one?⁴  — Our Mishnah speaks [in the first clause] of a bird which can only hop. since Mar 'Ukba has laid down that a bird which can only hop does not go further than fifty cubits.⁵

R. Jeremiah raised the question: If one foot is within fifty cubits and the other beyond. how do we decide? It was for this that they turned R. Jeremiah out of the Beth Hamidrash.⁶  Come and hear: IF IT IS FOUND BETWEEN TWO COTES. IT BELONGS TO THE OWNER TO WHOSE COTE IT IS NEARER: and this though one may have more birds than the other? — We are dealing here with the case where both are equal. But [if it is more than fifty cubits from each] let us say that it comes from the biggest anywhere?⁷  — We are dealing here

1. I.e., if a thing may conceivably belong to either of two categories, one of which is the more numerous, but the other in closer proximity; v. next note.
2. The plea of 'majority' is derived from the words [H] (Ex. XXIII, 2). which the Rabbis render (for purposes of halachah), 'Incline judgment after a majority.' i.e., according to the answer to the question. To what class do most things like this belong? The plea of 'nearness' is derived from the verse, And it shall come to pass that the city which is nearest etc. (Deut. XXI. 3)' i.e., we decide according to the answer to the question. Where are the nearest examples of things of this kind? (in this case, potential murderers).
3. So that the murderer would not naturally come to the spot from another town.
4. Hence we cannot assume that there is no larger cote in the neighbourhood. and therefore the answer to the previous objection will not stand.
5. Hence if it is found beyond 50 cubits it must have flown and may have come from 'the biggest anywhere', and therefore belongs to the finder.
6. According to Rashi, because his question was regarded as foolish, but according to Tosaf., because he ventured to call in question the statement of the Rabbis that a young bird can hop only fifty cubits.
7. And therefore belongs to the finder.