No Trespass
‘Two Gardens: One Above The Other…’
(Bava Metzia 118b)
Our mishnah discusses two neighboring vegetable gardens with a step of earth (of 90 degrees) between them. If vegetables sprout forth from this step, to whom do they belong: the owner of the upper garden or the owner of the lower garden?
R. Meir says they belong to the owner of the upper garden because the vegetation derives its nourishment from his soil. R. Yehuda, on the other hand, maintains that the owner of the lower garden is entitled to the vegetables because they are growing in his airspace. R. Shimon takes a middle position: The owner of the upper garden is entitled to any vegetable he can reach from his garden while the owner of the lower garden is entitled to the remaining vegetables.
The Rambam (Hilchos Shecheinim 4:9) and Mechaber (Choshen Mishpat 167:1) both rule according to R. Shimon.
Why?
Rashi (s.v. “kol she’elyon…”) explains that R. Shimon essentially agrees with R. Meir that ownership is based on the source of nourishment – the upper garden in this case. Why, then, does the owner of the lower garden get to keep the vegetables beyond the reach of the upper garden’s owner? Because those vegetables are hefker.
The Rambam (novella ad loc.) understands R. Shimon differently. He maintains that R. Shimon basically agrees with R. Yehuda that the owner of the lower garden is entitled to the produce. Why, then, does the owner of the upper garden get to keep the vegetables he can reach? Because there is a fear that he might remove his soil and destroy the vegetables; thus, the owner of the lower garden is willing to compromise.
Hefker
Gedulei Shmuel (ad loc.) asks the following question: Beis Hillel maintains that if one is declares an object ownerless with the stipulation that it only benefit the poor, the item is not considered hefker. Only when it is declared hefker to all, rich and poor, is it hefker. Thus, according to Rashi’s understanding of R. Shimon, why does the lower garden’s owner have a special right to the vegetables beyond the reach of the upper garden’s owner? Doesn’t everyone in the world have an equal right to those vegetables?
To answer this question, Gedulei Shmuel argues that the owners of both gardens have rights to the vegetables that sprout forth from the step of earth. R. Meir maintains that the upper garden’s owner has primary rights because his garden supplies the nourishment while R. Yehuda gives primacy to the owner of the airspace. Thus, when the owner of the upper garden relinquishes his rights, he is relinquishing them, not to the whole world, but to someone who has a valid claim to them.
Chametz Removal
Rabbi Moshe Stern, Debreciner Rav, zt”l (Responsa Ba’er Moshe, Vol. 1:41), was asked whether the rules of hefker apply to garbage cans with chametz that are left out at the curb (or the edge of one’s property) before Pesach for sanitation pick up. He argues that it is difficult to claim the owner truly made his bins hefker to the whole world because he surely does not want strangers trespassing his property or making use of his objects.
He says, therefore, that a person should pour gasoline (or some other fuel) on his garbage, which renders it inedible to a dog.