Bava Batra, Chapter Two, Mishnah Eleven
Mishnah eleven deals with distancing trees from cisterns lest the roots break the underground walls of the cisterns.
1) A tree may not be grown within twenty five cubits of a cistern, or within fifty cubits if it is a carob or a sycamore, whether it is higher or on the same level.
2) If the cistern was there first the tree shall be cut down and compensation given.
a) If the tree was there first it shall not be cut down.
b) If it is in doubt which was there first, the tree shall not be cut down.
c) Rabbi Yose says: Even if the cistern was there before the tree it should not be cut down, since this one dug within his own domain and the other planted within his own domain.
Section one prohibits one from planting a tree either twenty five or fifty cubits, depending on the type of tree, from anothers cistern lest the roots damage the cistern. This is true whether the tree is on higher or equal ground to the cistern.
Section two deals with the consequences of a tree that was planted closer than twenty five or fifty cubits. If the cistern was there first, the tree must be cut down, but the owner will receive compensation. Even though he was not supposed to plant there, it is still his property and therefore he is paid for the loss of the tree. However, the cistern owner can at least take the initiative and force him to remove his tree. If, however, the tree was there first, the owner of the cistern cannot even force the tree owner to remove the tree. If it is unclear which is there first, the tree is not removed.
Rabbi Yose has a different opinion. According to him, so long as each persons activities are confined to his property, the other cannot force him to remove the potentially offending object, in this case a tree. Rabbi Yose is what we might in our time call a right to privacy advocate.
Questions for Further Thought
· In mishnah seven we discussed a similar issue to this mishnah. What are the differences between the two mishnayoth and why do you think they exist?