Bava Batra, Chapter Three, Mishnah Six

 

Introduction

Mishnah six continues to discuss what types of activities can create chazakah.

 

Mishnah Six

1)                     A gutter spout cannot cause title through possession [so that the spout may still be moved] but title through possession may be claimed to its place [so that the place must be left for its present purpose].

2)                     A gutter can give title through possession.

3)                     An Egyptian ladder cannot give title through possession but a Tyrian ladder can.

4)                     An Egyptian window cannot give title through possession but a Tyrian window can.

a)                                           What is an Egyptian window?  Any through which a man’s head may not enter.

b)                                          Rabbi Judah says:  “If it has a frame, even though a man’s head cannot enter through it, it can give title through possession.”

5)                     A projection, if it extends a handbreadth or more can give title through possession, and the other [into whose premises it projects] can protest against it.

a)                                           But if it is less than a handbreadth it cannot give title through possession and the other cannot protest against it.

 

Explanation

Our mishnah continues to discuss the same issue as we discussed in the previous mishnah:  which acts entail possession in order to establish the right to continue to do the acts after a period of three years.  If the act is considered a sign of possession than the owner of the item can tell others that they may not use the object.  Since if another person uses the object he will establish the right to continue to do so in the future, it makes sense that the owner can prevent them from usage in the present.  If, however, the act is relatively insignificant, and will not lead to the right to continue to do the act in the future, than the owner cannot prevent others from doing so in the present.  We will now explain each section separately.

Section one:  A gutter spout is a tiny pipe on the edge of a larger gutter pipe which would be on the roof to allow drainage of water.  If the spout, which belongs to one person, is draining into another’s courtyard the owner of the courtyard can direct the spout out of his courtyard and this will not establish possession over the spout. He cannot, however, totally remove the spout for the mere existence or non-existence of the spout is a sign of possession.  If he were to remove the spout and the owner were not to protest, the owner would not be able to protest after three years.

Section two: A gutter (larger than the spout) is a sign of possession.  Therefore the owner of a courtyard cannot even direct another person’s gutter, for if the owner were not to protest after three years he would lose his right to do so.

Section three: An Egyptian ladder is a small ladder used on a temporary basis.  Placing one in another person’s courtyard is not a significant act.  If Reuven were to place his Egyptian ladder on Shimon’s property for three years, Shimon could still protest after three years.  However, the use of a Tyrian ladder, which is large, is a significant act.  If a person were to use it in another’s courtyard for three years then the owner of the courtyard could not subsequently protest.

Section four:  An Egyptian window is a small window.  If Reuven were to open an Egyptian window in the wall of his courtyard and it were to exist for three years, Shimon could still subsequently block the window.  Even though Shimon did not protest for three years, there are no subsequent rights caused by a small window.  However, a Tyrian window which is large, does cause subsequent rights.  If Reuven were to open a Tyrian window in the wall of his courtyard and it were to exist for three years, Shimon could not subsequently block the window.  If he wished to protest he should have done so during the three years.

Section five:  If Reuven were to build a wall that had a projection on it, such as a stray piece of wood or stone, longer than a handbreadth and that projection were to extend onto Shimon’s property, and Shimon did not protest for three years, he could no longer protest.  Since this is an intrusive projection, we also allow Shimon to force Reuven to take it down, provided he protest within three years.  A smaller projection is different.  If it were to extend less than one handbreadth into Shimon’s property, Shimon may not protest.  However, even after three years Shimon could take down the projection, or otherwise block it, since there is no assumption of possession.

 

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