Benny lives on the second floor of an apartment block. Many years ago, a
tree was planted in the garden below. This tree has now grown so much that
its branches block out the light to some windows of Benny’s apartment. Whose
duty is it to remove the offending branches? Who has to pay for their
removal? Would the law be the same if overhanging branches of a private tree
blocked a public path?
Reuven planted a tree in his field. Ten years later,
Shimon, who owns the adjoining field, complained that the roots of this tree
were undermining his underground water cistern. The Shulchan Oruch (Choshen
Mishpot 155:32) rules that Reuven is not held responsible for the damage. At
the time of planting, his tree was not harmful to the neighbour’s property.
The long, intrusive roots developed automatically over the course of time.
Thus, Reuven was merely making normal use of his field when planting the
tree. He can therefore not be held liable for the long-term
damaging results of such use which did not exist at the time of planting.
Indeed, he is not even considered an indirect causer of damage and has no
Heavenly obligation to compensate his neighbour (potur midinei Shomayim).
We learn from here that whenever a person performs an act
which could eventually cause damage to his neighbour’s property, he bears no
liability if the following conditions are met: (a) that the damaging factor
did not exist at the time but developed automatically over the course of
time and (b) that this was an accepted use of his property. If these
conditions are fulfilled, it will be the victim’s responsibility to remove
the harmful item at his own expense.
Is there any difference whether the harmful factor
develops above or below ground? Reuven’s fig tree overhangs Shimon’s roof.
Shimon wishes to tar his roof but is unable to do so because of the
overhanging branches. The Shulchan Oruch (Ibid. 28) rules that Shimon may
cut down the interfering branches. The Sema (Note 66) explains that the
victim may only remove whatever harms him at present. He may not cut the
tree back further to prevent new growth harming him in future. We see that
there is no difference whether the damaging factor develops above or below
ground. It is always the responsibility of the victim to remove the
offending item at his own expense.
Would it make any difference if the overhanging branches
blocked a public footpath? We are told that Rav Yannai (Bovo Basro 60a) cut
down a tree which made it difficult for the public to pass down the street.
This tree had been planted as a sapling in his own private courtyard. At the
time of planting, it certainly did not harm the passersby in the adjoining
street. Why did he then feel it was his duty to remove the tree when it
later developed into an obstruction of the public right of way? The answer
is that here it was the public, as opposed to individuals, who were being
harmed. In this case, it is the damager’s responsibility to remove the
offending item. The fact that the offending branches only came into
existence long after his planting makes no difference. This is borne out by
a ruling of the Remo (Ibid. 22). A permanent threshing floor must be
situated at least fifty amos from the city. If the threshing floor was there
first, we still force the owner to remove it to avoid the flying chaff
causing damage to the inhabitants of the new city. Why can the owner not
argue that when he started using the threshing floor there was no city in
the vicinity and it was therefore not his problem? The answer is that since
here the public is being harmed, we are stricter.
Accordingly, we can conclude that Benny will have to remove the shadowy
branches at his own expense. However, if these branches had been obstructing
a public footpath or pavement, the tree owner would have been liable for