Babylonian Talmud: Tractate Baba Bathra

Folio 26a

[must the house shake to constitute damage]? — Enough to make the lid of a pitcher rattle.¹

When the people in the house of Bar Marion the son of Rabin used to beat flax, the dust used to fly about and annoy people. They appealed to Rabina. He said to them: When we say that R. Jose admits that a man is responsible for damage of which he is the cause, this applies only to the case where he himself sets the cause of the damage in motion. Here it is the wind which carries the dust about, [and therefore they are not liable]. Mar, son of R. Ashi, strongly objected to this, saying: How do these man differ from a man winnowing [on Sabbath] when the wind carries the chaff further?²  — The case was stated before Meremar. and he said: This is in fact on all fours with that of the man winnowing on Sabbath when the wind comes and helps him.³  And how does Rabina⁴  differentiate this case from that of the spark flying from the smith's hammer and doing damage, for which the smith is responsible?⁵  — [He could reply that] the smith is glad to see the spark fly out,⁶  but here the people beating the flax do not want the dust to fly about.

MISHNAH. A MAN SHOULD NOT PLANT A TREE [IN HIS OWN FIELD] CLOSE TO HIS NEIGHBOUR'S FIELD⁷  UNLESS HE KEEPS IT AT A DISTANCE OF FOUR CUBITS; THIS APPLIES BOTH TO A VINE AND TO ALL OTHER TREES. IF THERE IS A FENCE BETWEEN THE TWO FIELDS, EACH MAY PLANT CLOSE UP TO THE FENCE ON HIS OWN SIDE.⁸  IF THE ROOTS [OF ONE MAN'S TREE] SPREAD INTO HIS NEIGHBOUR'S FIELD, [THE LATTER] CAN CUT THEM AWAY TO A DEPTH OF THREE HANDBREADTHS SO THAT THEY SHOULD NOT IMPEDE THE PLOUGH. IF HE DIGS A PIT, DITCH, OR CAVE, HE CAN CUT RIGHT DOWN [TO ANY DEPTH]. AND THE WOOD BELONGS TO HIM.⁹

GEMARA. A Tannahas taught: The four cubits here mentioned are to allow space for the work of the vineyard.¹⁰  Samuel said: This rule was only laid down for Eretz Yisrael; in Babylonia two cubits are sufficient.¹¹  This is also stated in a Baraitha: 'A man should not plant a tree nearer than two cubits to his neighbour's field.' But does not our Mishnah say four? — It must be therefore as Samuel has explained. This argument is also stated in the form of a contradiction [which is afterwards reconciled, thus]: Our Mishnah says: A MAN SHOULD NOT PLANT A TREE CLOSE TO HIS NEIGHBOUR'S FIELD UNLESS HE KEEPS IT AT A DISTANCE OF FOUR CUBITS. But does not a Baraitha say two cubits? — Said Samuel: There is no contradiction. The Mishnah refers to Eretz Yisrael, the Baraitha to Babylon.¹²

Raba, son of R. Hanan, had some date trees adjoining a vineyard of R. Joseph. and birds used to roost on the date trees and fly down and damage the vines. So Raba, son of R. Hanan, told R. Joseph to cut down his date trees. Said the latter: But I have kept them [four cubits] away? This, replied the other, applies only to other trees, but for vines we require more. But does not our Mishnah say that THIS APPLIES BOTH TO VINES AND TO ALL OTHER TREES? Said he:¹³  This is so where there are other trees or vines on both sides,¹⁴  but where there are other trees on one side and vines on the other a greater space is required.¹⁵  Said R. Joseph: I will not cut them down, because Rab has said that it is forbidden to cut down a date tree which bears a kab of dates, and R. Hanina has said, 'My son Shikhath only died because he cut down a date tree before it was dead.'¹⁶  You, Sir, can cut them down if you like.

R. Papa had some date trees close to the field of R. Huna the son of R. Joshua. [One day] he found him¹⁷  digging and cutting out the roots. What [do you mean by] this? he said to him. He replied: We learnt: IF THE ROOTS SPREAD INTO HIS NEIGHBOUR'S FIELD, [THE LATTER] MAY CUT THEM AWAY TO A DEPTH OF THREE HANDBREADTHS SO THAT THEY SHOULD NOT IMPEDE THE PLOUGH. Said the other: [The Mishnah] only [says] three, but you. Sir, are going deeper. He replied: I am digging for pits. ditches, and caves, In regard to which we learnt: IF HE DIGS A PIT, DITCH, OR CAVE, HE CAN CUT RIGHT DOWN AND THE WOOD BELONGS TO HIM. Said R. Papa [subsequently]: I tried all kinds of argument with him, but I could not convince him

1. According to others, 'as much as the lid shakes when the jar is held in the hands.'
2. If a man winnows on Sabbath and the wind carries the chaff more than four cubits, he breaks the law regarding throwing on Sabbath.
3. And therefore the flax-beating could be stopped.
4. Who may say that a principle applying to a Sabbath prohibition does not necessarily apply to a trespass against property.
5. This being also a trespass against property rendering the smith liable although the spark is carried by the wind.
6. So that it shall not damage his own smithy.
7. Whether a corn field or an orchard.
8. Lit., 'This one may plant it close to the fence on this side, and this one etc.' because then there is no danger of Kilayim. V. supra 18a.
9. The Gemara discusses which one is meant.
10. I.e., so that he can plough under his vine without encroaching on his neighbour's field.
11. Because a shorter plough was used there.
12. Lit., 'here in Eretz Yisrael, here in Babylon.'
13. Raba.
14. Lit., 'a tree for a tree, and vines for vines, but a tree for vines, etc.'
15. Tosaf. points out that R. Joseph could be held responsible only if he had planted the date trees as saplings, but not if they had grown from date stones.
16. Lit., not its time.'
17. Lit., 'he went and found him.'

till I adduced the dictum of Rab Judah: 'A strip of land over which the public has established a right of way must not be obstructed.'¹  After he [R. Papa] had left him, he [R. Huna] said: Why did I not answer him, '[The prescriptive right of a tree is only]²  within sixteen cubits [from the trunk].³  [but I am cutting at a distance of]⁴  more than sixteen cubits'?

IF HE DIGS A PIT, DITCH OR CAVE HE CAN CUT RIGHT DOWN [TO ANY DEPTH] AND THE WOOD BELONGS TO HIM. Jacob of Hadayab⁵  put the question to R. Hisda: To whom does the wood belong? — He replied: We [can] learn the answer [from the following Mishnah]: If the roots of a tree belonging to a layman spread into a field belonging to the Sanctuary, they may not be used [by a layman], but their use does not involve a trespass.⁶  If now you say that the roots follow the tree, then there is a good reason why the use of them does not involve a trespass. But if you say that they take their character from the soil in which they are found, why is a trespass not involved? — What then [will you conclude] — that the tree is the decisive factor?⁷  [If so], let us see what follows:⁸  If the roots of a tree belonging to the Sanctuary spread into the field of a layman, they must not be used, but their use does not involve a trespass. Now if the tree is the decisive factor, why is no trespass involved? In fact, [this Mishnah, I should say,] tells us nothing about the question in hand, because it is concerned with 'a subsequent growth',⁹  and it holds that the law of trespass does not apply to 'subsequent growth'.¹⁰  Rabina replied that there is no contradiction [although in the first case the tree is the decisive factor and not in the second]. [In the first case we suppose]¹¹  the roots to be within sixteen cubits of the tree, [and in the second case]¹¹  beyond sixteen cubits from it.

'Ulla said: A tree which is nearer than sixteen cubits to the boundary of a neighbour's field is a robber, and the offering of first fruits should not be brought from it.¹²  From whence does 'Ulla derive this idea? Shall we say from [the following Mishnah] which we learnt: 'If ten shoots are planted at [equal] intervals in a beth se'ah,¹³  then the whole of the beth seah may be ploughed up to New Year [of the Sabbatical year]'?¹⁴  [This cannot be.] For what is the total area occupied? — Two thousand five hundred cubits. How much is that for each tree? — Two hundred and fifty cubits. Now, this is less than the space mentioned by 'Ulla.¹⁵  Can it be then from [the following Mishnah] which we learnt: 'If there are in a field three trees belonging to three different men, they can be combined [to place the field in the category of a plantation field],¹⁶  and the whole

1. Because the public has acquired a prescriptive right of way over it. I also have a prescriptive right to let my tree stand where it is.
2. Lit., 'here.'
3. Because up to that distance the roots suck from the soil, though they actually spread 25 cubits. V. infra.
4. Lit., 'here'.
5. Adiabene.
6. (Me'i. 13b). Heb. me'ilah, [H] the technical name for the improper use of holy things by laymen (as distinct from the Sanctuary). V. Lev. V. 15.
7. And the wood in this case belongs to the owner of the tree.
8. Lit., 'read the end (clause)' in the Mishnah just quoted.
9. E.g.. the roots, which spread after the tree was consecrated.
10. V. Pes. 66b.
11. Lit. 'here'.
12. Because it says, thou shalt take the first of all the fruit of the ground which thou bringest from thy land (Deut. XXVI, 2.)
13. An area of fifty cubits by fifty.
14. (Sheb. I, 6). Because the whole of the area is required for the nourishment of the trees and the ploughing is therefore purely for their benefit, and not for the purpose of sowing.
15. Who says that the tree sucks from an area with a radius of 26 cubits, which would be much more than 250 cubits.
16. A 'plantation field' was allowed to be ploughed up to the Feast of Weeks preceding the Sabbatical year, but a cornfield only up to the Passover. If the three trees are not combined, only the space required for each one can be ploughed up to the Feast of Weeks.