Bava Batra 37a (לז.) — the Talmud in English

For

did Rabbi Yishmael not say: One fruit

constitutes a presumption of ownership for all the fruits!?

Here too, these constitute a presumption of ownership for these, and these constitute a presumption of ownership for those.

That is to say: Just as Rabbi Yishmael said according to his approach that consuming the grain and fruits growing in part of the field suffices for this consumption to be considered consumption of the entire field, so too, according to the Rabbis, consuming the produce of the trees standing in part of the field is considered consumption of the produce of the trees throughout the entire field.

However, this law has two conditions:

a.

This applies

when it suffices to consume ten trees each year,

where

the other trees

did not produce fruit,

[produced] fruits

but

if even the other trees

produced

fruit

and

he

did not consume

them,

it is not a presumption of ownership,

because since he did not consume all the fruits, he thereby revealed about himself that the field was not his, and therefore he was afraid to establish a complete presumption of ownership. Consequently, there is no proof from the claimant’s silence, and it is not a presumption of ownership. b.

And this is when they are dispersed,

meaning that the ten trees whose fruits he consumed each year were dispersed throughout all three beit se’a of this field. Thus, if he consumed the fruits of three trees in this beit se’a, three in this beit se’a, and three in this beit se’a, this is a presumption of ownership. But if he consumed ten trees together in this beit se’a, and in the second year likewise in the second beit se’a, and in the third year he consumed the ten trees in the third beit se’a, this is not a presumption of ownership, since each beit se’a is considered a separate field of trees.

a. The presumption of ownership mentioned later in the discussion is not a three-year presumption of ownership, but rather the law of a presumption of ownership through which one acquires land: namely, by digging in it a little or performing some act of working the land, and this concerns acquisition, not proof. b. One who sells another person two trees in his own land grants the purchaser no right to the land except to leave the tree there until it dries out, but if he sold him three trees, the purchaser thereby acquired the land beneath and between them, to the extent of the area required for gathering figs [with a pole] and for his basket. One who sells a field of trees to two people—for example, he sold the trees to one of them and the land between them to the other—and

this one—

the purchaser of the trees—

established a presumption of ownership over the trees

in order to acquire them,

and this one established a presumption of ownership over the land

in order to acquire it:

Rav Zevid said: This one

who established a presumption of ownership over the trees alone

acquired

the

trees

without the land. And if the trees dry out, he may no longer plant others in their place, since he did not acquire the land; even if there were three trees, in which case he would have acquired land had he purchased them in this manner from the owner of the field,

and this one

who established a presumption of ownership over the land

acquired

the

land.

And although one who purchases three trees also acquires land, that law applies only when one purchaser acquires from the owner of the land. But in the case of two purchasers who together acquire the trees and the land, the owner of the land can say to the owner of the trees: “Just as I have no rights whatsoever in your trees, so you have no rights whatsoever in my land.”

Rav Pappa challenged this: If so,

according to your statement that

the owner of the trees has no rights at all in the land—

let the owner of the land say to the owner of the

the

trees,

when the trees dry out,

“Uproot your tree, take it, and go away,”

[uproot your tree, take it, and go away], but this cannot be reasonable!?

Rather, Rav Pappa said:

;

This one

who established a presumption of ownership over the trees

acquired the trees and half

of the

land

required for the trees, even if he purchased only two trees.

And this one

who established a presumption of ownership over the land

acquired

the

half

of the

land

that remained.

The Gemara explains that the following law is

obvious:

If

a person sold

the

land, while retaining the trees for himself

even two trees or only one—

he has

also

the

land sufficient for the continued existence and needs of the trees, and even if they dry out, he may plant others in their place.

And even according to Rabbi Akiva, who says

generally:

A seller,

when he sells,

sells generously;

he

sells,

and for this reason, if a person sold a house while retaining the pit and cistern inside it, he may not go to his pit until he acquires a path from the purchaser, because when he sold the house to the purchaser, he sold it to him generously and did not retain a path for himself to reach his pit—

This applies with regard to a pit and a cistern, because

this

does not diminish the land [the existence of the pit and cistern does not diminish the purchaser’s land], and it follows that when he sold it to him, he did not need to retain any right in the land to maintain his pit there, since it does not harm him at all. Therefore, he did not retain a path through the land by which to go to his pit.

therefore, when he sold the property, he did not need to retain any right in it for his pit, because the pit and cistern do not undermine the buyer’s ground