Jewish Law in Our Times

by Simon M. Jackson, Adv., Legal Advisor to Torah MiTzion

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5 - The Special Nature of the Public Domain

“A pot belonging to partners is neither hot nor cold” (Bava Batra 24b). The Gemara teaches us that a pot belonging to two people really belongs to neither of them, in the sense that both may try to shift the burden of attending to it.

On this basis, the Gemara explains the difference between the Mishnah’s ruling concerning a pit (viz. that if a person planted a tree close to his fellow’s pit and the pit was dug first - the owner of the pit can cut down the tree provided he compensates the person who planted the tree) and its different ruling concerning a person who plants a tree close to the city (viz. that anyone in the city can chop down the tree and has no obligation to compensate the person who planted it).

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Rashi explains: “Since no particular individual is obligated to pay compensation, much time will pass until the money will be found to compensate the tree owner, and if it were necessary to wait until the money is found the tree would not be cut down!” Nor can one say that this is an internal matter for the people of the town, and if they do not wish to attend to their own needs so be it, “because this is not becoming of the Landof Israel.”

The special nature of the public domain is exemplified by this principle, because it does not belong to any specific individual. On the one hand, this can entitle the public domain to special safeguards, because it serves the public as a whole, who are thus entitled to special protection against environmental pollution. On the other hand, certain liberties may be taken in the public domain, which would otherwise constitute a nuisance in a private domain, being that the public domain includes seas, deserts and wide tracts of land which are far removed from the cities. The injury to people would thus be far less. Moreover, in truth, it is in the public interest that waste materials and effluence should not remain within a person’s private domain, should not pollute his domain and should not emit bad smells outside his territory.

There is no sense in prohibiting the use of the public domain. It suffices, rather, to delineate the boundaries of what is permissible and what is not: which areas may be used and which not; when use may take place and when not; the distinction between harmful waste material (such as industrial waste, which is liable to pollute the rivers; or oil spillages which pollute the sea and the beaches) and non-destructive waste products, etc.

In an earlier article, we related the incident, quoted in the Tosefta, of the person who thought he was throwing stones from his own private territory (which he was later forced to sell) into the public ‘ownerless’ domain (in which he himself stumbled on the same stones later). He learned to appreciate that the terms “private domain” and “public domain” are not necessarily identical to the concepts “mine” and “not mine.” What was once my private domain might one day not be mine, while the public domain will always remain my domain. At the end of the day, a person who damages the public domain is only damaging himself and certainly the society in which his children and grandchildren will have to live.

However, the prohibition of removing stones from the private to the public domain is not merely good advice. The Gemara makes it very clear (using the above story as an illustration) that “A person may not clear stones from his own domain into the public domain” (Bava Kamma 50b). And the Rambam summarizes the law in the following words: “Moreover, one may not dig a tunnel beneath the public domain, nor pits, cisterns or caves, even though carts can drive over them laden with stones, for fear that the ground might cave in without his knowledge; however, one who digs a hole for the public good - this is permissible” (Hilchot Nizkei Mamon 13:23).

Other activities are viewed as praiseworthy, but are not mandated: “The early Chassidim would bury thorns and glass to a depth of three tefachim beneath their fields so as not to damage the plough; others would burn them with fire; while still others would cast them into the sea to prevent damage to others” (ibid. 13:22).

Another source concerning the use of the public domain for the preparation of building materials or materials for fertilizing fields is the Mishnah in Bava Metzia (10:5): “Regarding a person who puts manure out into a public domain: as soon as one person takes the manure out into the street, another person should be ready to carry it away for use as fertilizer. One may not soak clay or make bricks in the public domain, but one may knead clay in a public domain [to be used immediately as cement in building], provided it is not used in the manufacture of bricks [which takes longer than kneading clay for mortar]. Regarding a person who builds on private property but needs to use the adjacent public domain, as soon as the one bringing the stones to be used in the building brings them into the public domain, the builder must take them from him and build with them.”

From the Mishnah we see that one is permitted to use the public domain, but only for a limited time, in a manner that will cause the least amount of damage to the public.

Especially interesting in this regard is the sanction prescribed for a person who puts out straw and hay into the public domain with the aim that this will get trodden into the ground by other members of the public, for eventual use as fertilizer on his field. Since human beings are liable to slip on these materials and get hurt, Chazal fined the damager by depriving him of his ownership of the straw and the hay that he removed from his possession, and declared it ownerless. “But even though they are ownerless, he is still bound to pay damages to anyone injured by the straw or hay” (Rambam, ibid. 13:14).

When the city of Jerusalemwas reclaimed, the founders of the new neighborhoods imposed sanctions against environmental offenders. The regulations enacted for the “Zichron Moshe” neighborhood (near Mea Shearim) in Jerusalem, which was founded in 1905, were one such example. “Once the roads have been constructed, private individuals who wish to build in the public domain may not leave stones and dust or cut stones in the public domain, unless they have first deposited with the Committee a minimum of sixty franks in cash. This will only be returned once the individual has properly cleaned up the public domain immediately upon completion of the construction work… and if he does not do this within two weeks of the date on which he concludes his building work, he shall lose the right to the deposited sum, and the money will go into the Corporation’s purse. Under no circumstances will a member be entitled to use the public domain in such a manner for a term longer than three months in duration.”[1]

The public domain in Eretz Yisrael has merited special attention. The Gemara, at the end of Masechet Ketubot (112a) recounts ways in which various Amoraim expressed their love for Eretz. Thus Rabbi Chanina “attended to the obstacles and the unevenness of the roads in Eretz Yisrael,” i.e. he went out of his way to remove all the dangerous obstacles that were on the road on account of his love for the Land of Israel and to ensure that the roads would not receive a bad reputation if someone was hurt through one of these obstacles (Rashi).

Next Column: The Value of Cleanliness in the Mea Shearim Regulations of the 19th Century



[1] Reproduced on pp. 52-53 of the magnum opus of Prof. N. Rakover, “Eichut Hasevivah” from which first-class work many of the source materials for this series are drawn.

 

To ask Simon a question regarding this article, or for assistance with any Israeli legal, notary or professional translation services, click here: www.jacksonadvocates.net

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Jewish Law in our Times > Environmental Protection

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