Babylonian Talmud: Tractate Baba Bathra

Folio 59a

We learnt: THERE IS HAZAKAH FOR A ROOF-GUTTER.¹  This fits in with the first two of the views [just adduced]²  but on the view that [the Statement that 'there is no hazakah for a gutterpipe' means that] if the owner of the courtyard wants to build under it he may do so, what does it matter to him [the owner of the gutter]?³  — We are dealing here with a gutter of stone, the owner of which can say, I do not want my stonework to be weakened [by building carried on underneath].⁴

Rab Judah said in the name of Samuel: If a man has a pipe [on his roof] from which water drips into his neighbour's courtyard and he wants to stop it up the owner of the courtyard can prevent him, saying, Just as you have property in the courtyard for pouring your water into It, so I have property in the water that comes from your roof.⁵  It has been stated: R. Oshaia said that the owner of the courtyard may prevent him, but R. Hama⁶  said he may not. They⁷  went and asked R. Bisa,⁸  who replied that he can prevent him. Rami b. Hama applied to him [R. Oshaia] the verse, A threefold cord is not easily broken.⁹  This [he said], is exemplified in R. Oshaia the son of R. Hama who is the son of R. Bisa.¹⁰

THERE IS NO HAZAKAH FOR AN EGYPTIAN LADDER.¹¹  How is an Egyptian ladder to be defined? — The school of R Jannai defined it as one which has not four rungs.

THERE IS NO HAZAKAH FOR AN EGYPTIAN WINDOW.¹²  Why should a definition be given [in the Mishnah] of an Egyptian window and not of an Egyptian ladder? — Because [in regard to the size of the window] the dissentient opinion of R. Judah was to be recorded in the next clause. R. Zera said: There is hazakah [for a Tyrian window] if it comes lower than four cubits [from the floor of the room],¹³  and the owner of the courtyard can prevent [one from being made in the first instance];¹⁴  but if it is more than four cubits from the floor, there is no hazakah for it¹⁵  and the owner of the courtyard cannot prevent [it from being made]. R. Elai, however, said that even if it is more than four cubits from the floor there is no hazakah for it, and [yet] the owner of the courtyard can prevent it from being made.¹⁶  May we say that the point at issue between them [R. Zera and R. Elai] is whether or not we force a man to abandon a dog-in-the manger attitude,¹⁷  one [R. Zera] holding that we do and the other that we do not? — No. Both are agreed that we do, and here [R. Elai] makes a difference because the [owner of the courtyard] can say to the other, You might at times place a stool under yourself and stand on it and see [into my courtyard].¹⁸

A certain man appealed to R. Ammi. The latter sent him to R. Abba b. Memel, telling him, Decide according to the opinion of R. Elai.¹⁹  Samuel said: If [a window is necessary] to let in light, however small it is there is hazakah for it.²⁰

MISHNAH. FOR A SPAR²¹  [WHICH PROJECTS NOT LESS THAN] A HAND BREADTH THERE IS HAZAKAH²²

1. This being a fixture, if the owner of the courtyard does not protest against its overhanging his yard during three years, the owner of the gutter may claim a prescriptive right to keep it there.
2. The views of Samuel and R. Hanina regarding a gutter-pipe.
3. For why should the owner of the gutter have hazakah to the extent that he should be able to object to the owner of the courtyard building under it, and why in any case should he raise such an objection?
4. But as a gutter-pipe is usually made of wood, there is no ground for a similar complaint if building is carried on under it.
5. For providing water for his cattle.
6. Father of R. Oshaia.
7. So in some texts.
8. Father of R. Hama.
9. Eccl. IV, 12.
10. Tosaf. points out that examples were not rare of three generations of scholars in the same family, but the peculiarity of this case was that all three were alive at the same time.
11. I.e., the fact that it has been allowed to remain in the neighbour's courtyard three years confers no right to keep it there permanently.
12. Because, as it is too small to see much out of, the owner of the courtyard does not trouble to protest.
13. Because then the owner of the room can look through it and see what is going on in his neighbour's courtyard. Hence if the latter does not protest, the former acquires hazakah.
14. To save himself from the danger of being overlooked.
15. Because, as it does not enable him to be overlooked, the owner of the courtyard does not trouble to protest.
16. For the reason given below, that the other may stand on a stool and look through.
17. Lit., 'the characteristic of Sodom': doing something which vexes his neighbour without benefiting himself. V. supra 12b.
18. Hence we cannot say that the owner of the courtyard derives no benefit from preventing the other from making his window four cubits above the floor, and therefore he is at liberty to prevent him.
19. Which shows that this is the law (Rashb.).
20. And if the owner of the courtyard does not protest in time, it may be kept there permanently.
21. A spar projecting from the roof of a house over a neighbour's courtyard.
22. So that the owner of the courtyard cannot remove it after a certain time.

AND THE OWNER OF THE COURTYARD CAN PREVENT IT BEING MADE [IN THE FIRST INSTANCE]. IF IT IS LESS THAN A HANDBREADTH THERE IS NO HAZAKAH FOR IT AND HE CANNOT PREVENT IT [FROM BEING MADE].

GEMARA. R. Assi said in the name of R. Mani (or, according to others, R. Jacob said in the name of R. Mani): If he obtains a right to a handbreadth he obtains a right to four. What is the meaning of this?¹  — Abaye said: It means that if he has obtained a right to a width of a handbreadth with a length of four, he ipso facto obtains a right to a width of four.²

IF IT IS LESS THAN A HANDBREADTH THERE IS NO HAZAKAH FOR IT AND HE CANNOT PREVENT IT [FROM BEING MADE]. R. Huna said: This only means that the owner of the roof cannot prevent the owner of the courtyard [from using it],³  but the owner of the courtyard can prevent the owner of the roof.⁴  Rab Judah, however, said that the owner of the courtyard cannot prevent the owner of the roof either. May we say that the point at issue between them is whether overlooking [constitutes a genuine damage], one holding that it does, and the other that it does not?⁵  — No. Both consider overlooking to constitute a genuine damage but here⁶  the case [according to Rab Judah] is different because the owner of the roof can say to the other: I cannot actually do anything on this spar. All I can do with it is to hang things on it. When I do that, I will turn my face away. And the other [R. Huna]? — [He can rejoin that] the other may say to him: You may become afraid [of falling, and not turn your face away].⁷

MISHNAH. A MAN SHOULD NOT LET HIS WINDOWS OPEN ON TO A COURTYARD WHICH HE SHARES WITH OTHERS. IF HE TAKES A ROOM IN ANOTHER [ADJOINING] COURTYARD, HE SHOULD NOT MAKE AN ENTRANCE TO IT IN A COURTYARD WHICH HE SHARES WITH OTHERS. IF HE BUILDS AN UPPER CHAMBER OVER HIS HOUSE, HE SHOULD NOT MAKE THE ENTRANCE TO IT IN A COURTYARD WHICH HE SHARES WITH OTHERS. BUT HE MAY IF HE PLEASES MAKE AN INNER CHAMBER IN HIS HOUSE AND THEN BUILD AN UPPER CHAMBER OVER HIS HOUSE AND MAKE THE ENTRANCE FROM HIS HOUSE.⁸

GEMARA. [A MAN SHOULD NOT LET HIS WINDOWS OPEN etc.] Why only in a courtyard which he shares with others? Surely the prohibition should apply also to the courtyard of his neighbour? — The Mishnah takes an extreme case. On the courtyard of his neighbour he may certainly not let his windows open out.⁹  But in the case of a courtyard which he shares with others he can say [to the other owner]: In any case you have to take steps to preserve your privacy from me in the courtyard.¹⁰  We now learn therefore that the other can reply: Up to now I had to take steps to preserve my privacy only in the courtyard, but now [if you make this window] I shall have to do so in my house also.¹¹

Our Rabbis taught: A certain man made windows opening on to a courtyard which he shared with others.¹²  He was [eventually] summoned before R. Ishmael son of R. Jose, who said to him: You have established your right, my son.¹³  He was then brought before R. Hiyya, who said: As you have taken the trouble to open them, so you must take the trouble to close them.¹⁴

R. Nahman said:

1. On the face of it the statement is absurd, since if the owner of the courtyard would allow a spar of a handbreadth, it does not follow that he would allow one of four.
2. A space of four handbreadths by four is reckoned something considerable', and therefore a length of four handbreadths carries a width of four with it, though a length of ten handbreadths would not carry with it any greater width.
3. Although it is his property, because the owner of the courtyard can at any time tell him to remove it.
4. Either from using it or from making it in the first instance.
5. The owner of the courtyard can be 'overlooked' from the spar by the owner of the roof, but not vice versa.
6. In the case of a spar less than one handbreadth.
7. And so overlook my courtyard.
8. The reasons for all these rules are explained in the Gemara.
9. Because he interferes with his neighbour's privacy.
10. Because I share the courtyard. and therefore the addition of a window will make no difference.
11. Alternatively we may translate: Till now I had to preserve my privacy when you were in the courtyard, now I shall have to do so when you are in your house also.
12. Who made no objection at first.
13. Because the others did not protest immediately. This accords with R. Ishmael's dictum recorded supra 41a: 'an action done in the presence of the owner constitutes hazakah.'
14. Because for establishing such a right three years are required.