Bava Batra 59a — the Talmud in English

And the Gemara raises an objection to Rav Yirmeya bar Abba from our Mishna:

We learned

in our Mishna:

The gutter has a presumption of ownership

as opposed to the drainpipe, which does not have a presumption of ownership.

Granted, according to the one who says

[unclear: an isolated letter]

these two,

the two amoraim who stated the first two interpretations of “the drainpipe does not have a presumption of ownership,”

it is well

that the tanna stated in the Mishna that there is a distinction between a gutter, which has a presumption of ownership, and a drainpipe, which does not have a presumption of ownership, with regard to this: that the use of the drainpipe is not fixed on one side, whereas the use of the gutter is fixed on one side; or with regard to this: that the gutter cannot be shortened, whereas the drainpipe can.

But according to the one who says

the third interpretation of “the drainpipe does not have a presumption of ownership,”

that if he wishes

the owner of the courtyard

to build beneath it, he builds,

it follows that, in contrast to it, the gutter has a presumption of ownership, in that the owner of the courtyard cannot build beneath the gutter that projects into his fellow’s courtyard.

And it is astonishing:

what difference does it make to him

the owner of the gutter

from it [that is, from the owner of the courtyard’s building beneath his gutter]? Surely the owner of the courtyard certainly did not subordinate to him, in his courtyard, something that the owner of the gutter does not need!?

And we answer:

Here we are dealing

with a built gutter

built of bricks

.

For he says to him,

the owner of the gutter says to the owner of the courtyard: “I do not want you to build beneath my gutter, because

I do not want my walls to be damaged. I do not want the foundations of my gutter to be weakened on account of the hammers, the axe, and every iron implement at the time when you build your building.”

Rav Yehuda said that Shmuel said:

With regard to a pipe that channels water into his fellow’s courtyard, and the owner of the roof comes to stop it up,

then

the owner of the courtyard can prevent him

because

he says to him,

the owner of the courtyard says to the owner of the roof:

“Just as you acquired for yourself my courtyard in order to cast water into it, so too I acquired for myself the water of your roof.”

Just as you acquired the right to cast water into my courtyard, so I acquired the right to receive the water descending from your roof through the drainpipe into my courtyard, in order to water my animals with it; and on this condition I consented for you to do so!

It was stated: Rabbi Oshaya said: He can prevent him

the owner of the courtyard can prevent the owner of the roof from stopping up his drainpipe.

But

Rabbi Hama,

the father of Rabbi Oshaya,

said: He cannot prevent him,

because he did not subordinate the water to him, but only for as long as it descends into his courtyard.

They went and asked him,

they went and asked this ruling

of Rabbi Baisa,

the father of Rabbi Hama and the grandfather of Rabbi Oshaya, and

he said to them

in accordance with the words of his grandson, Rabbi Oshaya:

He can prevent him.

Rami bar Hama applied to him,

to Rabbi Oshaya, the verse: “

And the threefold cord will not quickly be severed,”

this is Rabbi Oshaya, the son of Rabbi Hama, the son of Rabbi Baisa,

for he stated a ruling like his grandfather.

We learned in the Mishna:

The Egyptian ladder does not have a presumption of ownership:

And we explain:

What are the circumstances of an Egyptian ladder?

The school of Rabbi Yannai said: Any one that does not have four rungs

of the ladder.

We learned in the Mishna:

The Egyptian window does not have a presumption of ownership.

What is an Egyptian window? Any one through which a person’s head cannot enter. Rabbi Yehuda says: If it has a frame, even though a person’s head cannot enter through it, this is a presumption of ownership:

And we raise a difficulty:

What is different with regard to the ladder, that he does not explain

the tanna what its measurement is as an Egyptian ladder,

and what is different with regard to the window, that he explains

the tanna what its measurement is as an Egyptian window!?

And we answer: The tanna taught the measurement of the Egyptian window

because he needed to state Rabbi Yehuda’s dispute at the end.

Since the tanna wished to bring the dispute of Rabbi Yehuda, who disagreed with this measurement in a case where it has a frame, therefore the first tanna had to state what the measurement is, according to his view.

Rabbi Zeira said:

A Tyrian window that he made at a height suitable for using it,

below four cubits,

that is, it is not four cubits higher than the floor of the house, and one can see through it into the courtyard,

it has

the one maintaining the window

a presumption of ownership.

And

on the other hand,

the owner of the courtyard can

the owner of the courtyard

protest

to the owner of the window, so that he should not open it toward his courtyard, before the owner of the window has established his right through opening his window.

But an Egyptian window that they placed

above four cubits

from the floor of the house, through which it is not convenient to look,

does not have a presumption of ownership,

because the owner of the courtyard is not particular.

And

likewise, on the other hand,

he cannot protest

the owner of the courtyard cannot protest to the owner of the window against opening such a window toward his courtyard.

And

whereas

Rabbi Ilaa said: Even above four cubits it does not have a presumption of ownership, but

nevertheless,

he can protest.

That is, even in the case of a window above four cubits, where the owner of the window does not have a presumption of ownership, because the owner of the courtyard can say to him, “I am not particular about this, and therefore I allowed you to open it,” nevertheless, if the owner of the courtyard wishes, he can protest against him.

And the Gemara discusses:

Let us say

that perhaps

in

the law

“We compel with regard to the measure of Sodom”

by coercion against those who do not benefit their fellows even though they lack nothing,

they disagree

Rabbi Zeira and Rabbi Ilaa:

For one says,

Rabbi Zeira,

he holds: We compel

with regard to the measure of Sodom. Therefore, if the window was higher than four cubits, so that he cannot see from there into his courtyard, the owner of the courtyard loses nothing, and he cannot protest against opening it; rather, we compel him to allow him to open it.

And one says,

Rabbi Ilaa,

he holds: We do not compel

with regard to the measure of Sodom.

And we reject this:

No,

they did not disagree about this; rather,

everyone

holds

“We compel

with regard to the measure of Sodom.”

But here it is different,

for the owner of the courtyard can protest against opening the window, because

he says to him,

the owner of the courtyard says to the owner of the window:

“Sometimes you will place a stool beneath you, stand, and look.”

You can now sometimes place a stool beneath you, stand upon it, and look into my courtyard.

And the Gemara brings an incident concerning

a certain

man

who came before Rabbi Ami,

and wished to make a window above four cubits, while the owner of the courtyard was protesting against him.

He sent him,

Rabbi Ami sent

before Rabbi Abba bar Memel,

to ask how to conduct himself in this ruling.

He said to him,

Rabbi Abba bar Memel answered Rabbi Ami:

Act for him in accordance with Rabbi Ilaa,

decide his case in accordance with Rabbi Ilaa, who would say that the owner of the courtyard can protest.

Shmuel said: And

a window made

for light

to bring light into the house,

even

if it is no larger than

any amount, it has a presumption of ownership.

And they taught in the Mishna that an Egyptian window does not have a presumption of ownership only when it is not made for light, but only in order to look through it.

Mishna:

The projection

that protruded from the wall into his fellow’s courtyard,

up to a handbreadth

into the depth of the courtyard,

has a presumption of ownership,

and the owner of the courtyard cannot build there and destroy the projection.