No Trespass
‘Two Gardens, One Above The Other…’
(Bava Metzia 118b)
Our Mishna discussed the case of two neighboring vegetable gardens that are on different levels. We refer to them as Garden A and Garden B. There is a step down, a vertical drop (90 degrees), from Garden A to Garden B. The question in this particular case is to whom belong the vegetables (Rashi s.v. “ve’hayerek beintai’im” refers to garlic and onions) that sprout forth from the vertical step, the owner of the upper garden or the owner of the lower garden?
The Mishna cites three views: R. Meir awards 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 more entitled because the vegetables are growing in his airspace. R. Shimon offers a compromise – 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 that are beyond his neighbor’s reach.
The Halacha
Rambam (Hilchos Shecheinim chap. 4:9) and the Mechaber (Choshen Mishpat 167:1) both rule that the halacha follows R. Shimon. Rashi (s.v. “kol she’elyon…”) and Rambam (novella ad loc.) view the compromise in a different light. Rashi offers that R. Shimon essentially agrees with R. Meir that ownership is based on the source of nourishment – the upper garden in this case. However, the lower garden owner’s entitlement to vegetables beyond his neighbor’s reach is due to the rule of hefker – they’re being declared ownerless by the neighbor.
Rambam maintains that R. Shimon basically agrees with R. Yehuda that the owner of the lower garden is really entitled to the produce. However, since there is a fear that the neighbor might remove his soil and destroy the vegetables – he is willing to compromise.
Hefker
Gedulei Shmuel (ad loc.) asks the following question according to the view of Beth Hillel (supra 30b). Beth Hillel, in a dispute with Beth Shammai, maintain that if one is mafkir (declares ownerless) any object with the stipulation that it only benefit the poor, the item is not considered hefker. Only when it is declared hefker equally to all, rich and poor, is that declaration considered valid. Thus, in our case, any third party should be allowed to enter the field and pick these vegetables.
Obviously, in our case as well, Rashi’s view is rather difficult. Therefore, Gedulei Shmuel offers that actually, each has rights to the vegetables – however, in varying degrees. R. Meir’s view is that the upper garden’s owner has primary rights because his garden supplies the nourishment, while R. Yehuda gives primacy to the owner of airspace, because of where the vegetables are actually found – in the lower garden.
In this case, when a neighbor relinquishes his rights, he is relinquishing them to someone who has a valid claim.
Chametz Removal
Rabbi Moshe Stern, Debreciner Rav zt”l (Responsa Ba’er Moshe, Vol. 1:41), was asked regarding one’s garbage cans that contain chametz that are left out at the curb before Pesach for sanitation pickup, whether the rules of hefker apply in such a case.
In certain circumstances, he notes further, they can’t even be left at the curb but must remain at the edge of one’s property.
A solution that he offers is that one should pour gasoline (or some other fuel) therein, which will surely render the contents inedible.
As to why he does not rely on hefker, it is because in this instance, he considers its application to be rather questionable. The problem is that the owner clearly is not relinquishing rights to his garbage cans, and like our case mentioned by Gedulei Shmuel, one surely does not want strangers trespassing his property or making using of his objects.
Therefore, Rabbi Stern concludes that one should destroy the edibility of the chametz before it is picked up by sanitation.
