NEIGHBORING LANDOWNERS:

By: Wilhelm Bacher, Lewis N. Dembitz

The legal maxim "Sic utere tuo ut alienum non lædas" (So use your own that you may not injure another's [property]) is fully recognized in the Mishnah (B. B. ii.) by the imposition of the following restraints:

• (1) A man should not dig a cistern, a cellar, an irrigatingcanal, or a laundry-tank so near to that of his neighbor as not to leave three palms' distance between the walls or boundaries; and he must plaster his own.
• (2) One must keep his vegetable (olive) offal and dung and brine and lime and flints three palms distant from his neighbor's wall; also his plants and plow-furrows and urine. The same distance must be kept from hand-mill to hand-mill and from oven to oven. He must not erect an oven in his own house without leaving four cubits between its top and the joists above, nor in an upper story without a layer of earth of three palms under it; nor a cooking-stove without such a layer one palm in height. Even then, if fire breaks out, he must reimburse his neighbor's loss (R. Simeon to the contrary being overruled).

• (3) One must not open a bakery or a dye-house or a cow-stable under his neighbor's wareroom. The former two are permitted under a wine-store, the heat not injuring Palestinian wines. A man may lawfully object to the opening of shops in the same court in which he lives, because the noise of the customers disturbs his sleep; but he may not forbid any one from making commodities in the court and selling them elsewhere, nor may he object to the noise of a hammer, of a hand-mill, or of children.
• (4) Windows should be placed four cubits above or below the wall of a neighbor, so that the latter can not from his wall look in; and four cubits away, so that the wall may not darken them; the builder of the wall to keep the distance.
• (5) A ladder should be kept four cubits away from a neighbor's dove-cot, so that weasels may not have access to the pigeons; and a wall a similar distance from a neighbor's roofgutter, to give him room for a ladder. A man should not set up a dove-cot in his field unless he has fifty cubits of land around it.
• (6) Trees should be planted twenty-five cubits from a walled town; carob- and sycamore-trees (on account of their thick foliage) fifty cubits away. If the town was there first, the owner of the trees must cut them down without compensation; if the town was built later, with compensation. In like manner and measure trees should be kept at a distance from a neighbor's cistern.
• (7) A fixed thrashing-floor should be situated at a distance of at least fifty cubits from a town; and a man should not have one on his ground unless he has fifty cubits of land around it in each direction, so that the chaff may not injure the orchards or plowed fields of his neighbors.

• (8) Carcasses and graves and tanneries should be kept fifty cubits from any town; and a tannery should be restricted to the east of a town.
• (9) In like manner vats for decomposing flax must be kept at a distance from a neighbor's lawn, pear-trees from his onions, and mustard-plants from his beehives. (Some of these rules are evidently built on mistaken notions as to what is harmful.)
• (10) A man should not plant a vine or any tree nearer than four cubits to his neighbor's field. If there is a fence between the fields, each one may plant next to the fence; but when the roots spread into the field of a neighbor, the latter may cut them out to a depth of three palms so that they may not interfere with his plow; and in digging a cistern or cellar he may cut them out to the necessary depth and keep the wood.
• (11) When a tree bends over the field of a neighbor, the latter may cut it off high enough to admit the passage of a plowman's ox-goad; if the tree is a carob or a sycamore, or if the land needs irrigation, he may cut off the branches along the plumbline.
• (12) When a tree hangs over the public highway, the owner should cut the limbs off high enough for a camel with its rider to pass under.

No trace of any of these provisions can be found in the Pentateuch. In the Babylonian Talmud some of them are modified to conform to the conditions of the country between the Euphrates and the Tigris. In the later codes (e.g., that of Maimonides, "Yad," Shekenim), and the Shulḥan 'Aruk also (Ḥoshen Mishpaṭ, 153-156), many of the provisions are changed or omitted for like reason, but other provisions are treated in connection with them which belong rather to communal government. Thus Maimonides adds to the rules of the Mishnah: "A hand-mill should be set at least three palms away from the neighbor's wall, not to heat it and not to annoy the neighbor's family; also a baking-oven, so as not to overheat the wall. A stone on which clothes are washed should be removed four cubits, as the water would weaken the wall. Urine should be kept three palms away from a brick wall and one palm from a stone wall."

On the other hand, Maimonides follows the dissenting opinion of Rabbi Jose in the Mishnah, and says, "the owner of a mustard-plant need not remove it from the neighbor's beehive; the bees should rather be kept away from the mustard-plant"; and he extends this reasoning to other parts of B. B. ii. 9. He teaches also that when a tree is planted at the proper distance from a neighbor's cistern, the owner of the tree is not at fault when the roots in growing spread so as to penetrate the cistern. He also recognizes the right of one who owns a wall at the edge of his lot to lateral support from the neighbor's soil. Not only should this soil not be dug up, but its owner should do nothing to prevent its being trodden down and hardened; e.g., he should not build walls near together at right angles to it. The legality of this extension of the rule is, however, doubted.

Neighboring Landowners as (= "Abutters"):

The right of preemption which belongs to joint owners in general and to abutting landowners is unknown to Bible and Mishnah, and seems to have been evolved first by the Babylonian sages. Perhaps it was suggested to them by some custom of the new Persian kingdom, but they rested it wholly on the Scriptural passage: "Thou shalt do that which is right and good in the sight of theLord" (Deut. vi. 18), deducing therefrom the duty of keeping, in intercourse with one's fellow men, "inside the line of justice." The Talmud treats this subject in only one place (B. M. 108a, b). All the rules there given Maimonides has arranged clearly ("Yad," l.c. xii. 4-17) as follows:

• (1) If one among brothers (coheirs) or other joint owners sells his share to a stranger, the other brothers or part owners (or any one of them) may take it from the buyer and pay him back the price paid by him, so as not to have a stranger among them.
• (2) When one sells his ground to another, his neighbor owning adjoining land has the right to pay the price and to evict the buyer; and the buyer is then treated as the agent of the abutting owner; and whether the sale be made by the owner in person or through an agent or by the court, the law of preemption governs. Even though the distant buyer be a scholar, and the abutter be of "the people of the land," the latter is preferred (quoting Deut. vi. 18).
• (3) When there are several abutters, they all have the right of preemption; they can buy out the pụrchaser, contributing the money equally. But if one anticipates the others and buys, he can hold the lot against the others; and so several abutters who are on the spot can anticipate others who are absent.
• (4) When a joint owner sells his share to another joint owner, or a sole owner to one of several abutters, the other joint owners or abutters have no right of preemption.
• (5) Where one sells all his property, the abutter of one field can not evict the buyer; nor does the abutter's right arise upon a sale to the former owner, nor against one who buys from a Gentile.
• (6) Where one sells his field to a Gentile, he is put under the ban till he enters into an undertaking of guaranty against any trespass by the Gentile, and that the latter will deal toward Israelite abutters according to this preemption law.
• (7) The abutter has no preemption in renting land.
• (8) The sale can not be disturbed by the abutters where the owner sells to the mortgagee land which is under mortgage, or where he sells a distant field for means to redeem his home farm, or a poor field for the means to redeem a good one, or to find means to pay his dues to the government, or for funeral expenses, or for alimony to wife or daughters; for in all these cases the seller is pressed and might lose his sale if the buyer had to fear an eviction by the abutters. (Authorities later than the Talmud consider the case in which the abutter denies that the sale was brought about by one of these causes. If he can not prove the contrary, the buyer may clear himself by the "lesser oath." The abutter may also be required to prove that he owns the neighboring field, and is not a mere renter, metayer, or trespasser.)
• (9) A sale to fatherless infants or to a woman is not liable to be set aside by the abutters.
• (10) The owner of a building or of trees, if he has any interest in the ground, has the rights and lies under the duties of an abutter. When the next owner is separated from the old field by a hedge of trees, a high and solid building, or a deep ditch, if even one furrow can be run through from field to field, the abutter's rights attach; otherwise not.So far Maimonides. In Ḥoshen Mishpaṭ, 175, the law of preemption by abutters is treated much more at large, following later authorities; e.g., the abutter may complain that the seller and the distant buyer through collusion (κοινωνία) have named a higher price than was actually paid; and if this price is more than the value of the land, the purchaser must either clear himself by the "greater oath" or bring witnesses to prove the larger payment (§ 9). This code also recites that the abutter must, in order to enforce his right, be ready at once with his money; he may not say to the buyer, "Wait till I earn the money, and I will then pay" (§ 25). Nor if he is an infant, or sick, or abroad at the time when he hears of the sale, may time be asked for him to set up his right of preemption; for this would be a hardship on the buyer, and would discourage the sale of land (§ 34).The fulness of details in the Ḥoshen Mishpaṭ, supported as they are by older codes and by the responsa of great rabbis, shows that the abutter's right of preemption was by no means a dead letter, but was exercised wherever Jews dwelt together as landowners.