Bava Batra 37b (לז:) — the Talmud in English

But with regard to trees

that weaken the land, the very presence of the roots of the trees in the ground weakens it, and they also obstruct the plow; therefore, it is necessarily the case that he

left for himself a right to the land,

for if he had left nothing

for himself, he would have a right to say to him:

“If so, say to him:

‘Uproot your tree, take it, and go.’” For if he had retained nothing at all in the land, the purchaser of the land could demand that he uproot his tree. And since he necessarily retained a right to the land, he retained for himself all the land required by the trees.

for if he had retained nothing for himself in the land, the buyer of the land would demand that he uproot his tree. Since he must have retained a right in the land for himself, he retained for himself all the land necessary for the trees.

And if he

sold

two

trees and retained

the seller

the land before him, explicitly, as he said to him: “I am selling you the trees, whereas I am retaining the land for myself.”

Thus, the law concerning the land depends on the

dispute between Rabbi Akiva and the Rabbis

in general, whether a seller sells generously or not!

According to Rabbi Akiva, who says

in general,

“A seller sells generously,”

he holds that

the owner of the trees has a right to the land, so that he may plant others in their place if they dry up.

Whereas

according to the Rabbis,

who say in general: A seller sells begrudgingly,

he does not hold that

the owner of the trees has any right to the land except to maintain his trees there. However, once the trees have dried up, the seller may say to him: “Uproot your tree, take it, and go.”

The Gemara adds and explains:

a.

According to Rabbi Akiva, he holds that

the owner of the trees has a right to the land,

and even according to Rav Zevid, who says

on the previous folio that if one sold the trees to one person and the land to another,

he does not have

the owner of the trees has no right at all to the land,

this applies

there

in the case of two purchasers,

when he sold the trees to one and the land to the other, and because

he said to him,

the owner of the land said to the owner of the trees: “

Just as I have no rights in the trees, so too you

have no rights in the land, [

just as I have no right to your trees, so you have no right to my land]”—

But here, when he sold the trees and did not sell the land to another, but rather retained it for himself, we say that

“a seller sells generously.”

b.

According to the Rabbis, he does not hold that

the purchaser of the trees has any right whatsoever to the land, not even to plant another in its place,

and even according to Rav Pappa, who says

with regard to two purchasers:

he does have

the owner of the trees has a right to the land,

this applies with regard to two purchasers, where he said to him,

the owner of the trees said to the owner of the land:

“Just as he sold to you generously, so too he sold to me generously,

that is to say: Just as he sold the land to you generously, so that it is yours forever, along with its produce, so too, when he sold the trees to me, he sold them to me generously and also gave me a right to the land.”

But here, where he sold the trees, whereas he retained the land for himself and did not sell it to another, with regard to himself

“

a seller sells begrudgingly,”

in order to retain something for himself.

The next law of the Gemara returns to dealing with the laws of a presumption of possession for three years, and continues what Abaye said above, on page 36b: If one had thirty trees, planted ten to a beit se'a, and he consumed the produce of ten in this year, ten in the next year, and ten in the third year, this constitutes a presumption of possession.

The Sages of Neharde'a say:

If he consumed the produce of

the thirty trees in the orchard, when they were planted

close together [

densely], that is, more than ten trees were planted in a beit se'a,

he has no presumption of possession

at all in that field, even if he consumed the produce of all of them, because this is not the manner in which people establish a presumption of possession. For such trees are not intended to remain for consumption, but to be uprooted and removed!

Rava challenged

the statement of the Sages of Neharde'a:

But if that is so, what acquisition establishes ownership of this alfalfa plot [

an alfalfa bed], which is planted densely

by what means does he acquire it [

through what act of possession would he acquire it]!?

Rather, Rava said:

If there is a new law to be taught concerning saplings planted close together, this is the law, and it concerns the law of one who purchases three trees and thereby acquires the land between them:

If he sold them,

the trees in the orchard, when they were planted

close together,

more than ten to a beit se'a,

he does not have

the owner of the trees has no right to the

land,

because this is not an orchard, for the trees are destined to be uprooted and removed.

Rabbi Zeira said:

What Rava said, that when they are planted close together he acquires nothing at all, is

subject to a dispute among tannaim; it is stated as a dispute among tannaim, as we learned in a Mishna:

among the tannaim, as we learned in a Mishna:

A vineyard that is planted with less than four cubits—

that is, a vineyard planted so densely that there are not at least four cubits between one row of vines and the adjacent row—

Rabbi Shimon says: It is not a vineyard,

and one who sows within it does not violate the prohibition, “You shall not sow your vineyard with diverse kinds,” and the produce is also permitted for consumption.

And the Sages say:

Even though it is planted with excessive density,

it is nevertheless a vineyard, and we view the middle ones

as superfluous

as though they were not present,

so that there are four cubits between one row and the next.

And the same is true of their dispute concerning an orchard planted densely: whether it bears the designation “orchard,” such that the owner of the trees has a right to the land, or not.

Furthermore,

the Sages of Neharde'a say:

One who sells a palm tree to another [

one who sells another person a single palm tree], although he does not have a right to the land as one who sells three trees does, in which case he has beneath and between them space sufficient for an ox-driver and his basket, nevertheless

acquires

the land beneath the tree

from its base to the depths [

from the base of the tree, meaning its bottom, to the depth of the earth below].

The practical consequence of this is:

a. If the tree dries up, he may plant another in its place.

b. The owner of the land may not dig beneath this person’s tree, even to a depth of a thousand cubits, because the land beneath the tree is acquired by the owner of the tree.