by Simon M. Jackson, Adv., Legal Advisor to Torah MiTzion
Who owns the water in the sea and springs? The Tosefta (Bava Kamma 6:15) determines that the water is hefker, i.e. it belongs to everyone.
Masechet Bava Kamma (80b) lists ten regulations instituted by Joshua with the settlers of Eretz Yisrael when he divided the Land among them for the orderly and amicable settlement of Eretz Yisrael. Included in these is a condition that all the townspeople may use the water from a spring that has newly issued from a particular individual’s property. The Gemara concludes that no money need be paid to the owner of the spring for drawing the water on account of its hefker nature.
Restrictions on the ownerless nature of water
Notwithstanding the ownerless nature of water, townsfolk belonging to a different town were not allowed to use the water from such a spring. Joshua similarly enacted that certain rights of those who made use of the Seaof Tiberiaswhich fell within the territoryof Naphtaliwere restricted to members of the other tribes. Thus, while all Jews were permitted to fish with a hook and line in the Seaof Tiberias, those who were not members of the tribe of Naphtali were forbidden to spread out an enclosure and detain the boats.
According to Israel’s Water Law, 5719-1959, the sources of water in the country belong to the public and any person is entitled to use them. However, the same water sources are also declared to be subject to State control. Therefore, the use of water in Israelis subject to statutory regulation and supervision by statutory bodies. This, for example, the Law states that a person’s right to a particular parcel of land does not afford him any right to water that is found or which passes through the land or its boundary. Moreover, every individual is obligated to preserve the quality of the water in his territory, to prevent its wastage and to avoid closing up or diluting the source of the water. The law also sets rules governing the quantity, quality and cost of water, the terms for its supply and its efficient and sparing usage.
If there is not enough water for both cities…
The Gemara (Nedarim 80b) rules as follows:
“Where a spring originates from within one city, such that it belongs to the residents of that city, and from there continues to flow through another city:
(a) if there is not enough water for both cities so that the residents of the first city must choose between sustaining their own lives and the lives of others - their own lives take precedence over the lives of others [i.e. they drink first even though there will not be any water left to sustain the others - see Bava Metzia 62a];
(b) if there is not enough water for the animals of both cities to drink - their own animals take precedence over the animals of others;
(c) if they must choose between their own laundering and the laundering of others - their own laundering takes precedence over the laundering of others;
(d) if, however, they must choose between the lives of others and their own laundering needs, the lives of others take precedence over their own laundering.”
Allocation of Water for Agriculture
The Shulchan Aruch (C.M. 170:2), based on the Gemara in Gittin 60b, writes that the order of priority for using a source of water for agricultural purposes is as follows:
“Regarding farmers whose fields are situated along a river: if one farmer wishes to dam the river and divert its flow in order to irrigate his fields first and then to re-open the dam while another farmer wishes to water his own fields first - the court will not involve itself in this dispute and will allow the parties to fight over who draws water first.”
However, according to the Mishnah (Gittin 5:8), in order to prevent quarrelling over who draws water first, Chazal decreed that the farmer whose cisterns are furthest upstream and thus closest to the source of the water should be the first to fill his cistern, and all the other farmers along the channel should then fill their cisterns in order: “The cistern that is closest to the source of the irrigation channel is to be filled first, because this is one of the ways that foster harmony.” On this basis, the Shulchan Aruch codifies the final law.
The Duty to Repair Wells and Nineteenth Century Bye-Laws
The Tosefta (Shekalim 1:2) states that on the 15th of Adar, emissaries of the Beit Din would go out and dig wells, ditches and caves, and repair the Mikvaot and the water canals.
The duty to keep wells in a state of repair and the imposition of punitive measures depriving persons who fail to fulfil their obligations of their ‘right to water’ - was enshrined in the bye-laws for the “Yemin Moshe” neighborhood which was founded in 1892, under the title: “Notice and Warning to the Members of the Rechov Natan Neighborhood in Yemin Moshe.” The wording of the notice stated as follows:
“We hereby give notice of those repairs which require attention in view of the fact that two of the neighborhood’s wells have been broken and the water has seeped out; and similarly the large well needs repairing in several places and the sewage pipe which stands on the crossroads to the neighborhood also gets filled up in the rainy season and ruins the neighborhood as is well known.
All the above repairs amount to a minimum of 20 French franks, and therefore every member of the neighborhood is required to contribute the said sum by no later than Rosh Chodesh Ellul (haba aleinu letova}, because the repairs must be completed before the winter sets in. Anyone who does not contribute his share of the repairs by the above date will be denied his share of the water in the said wells.”
The Tosefta (Bava Metzia 11:31) sets down a prohibition on polluting sources of water: “One who makes caves for the public may wash his face, hands and feet therein. However, if his hands and feet are dirty from mud or excrement - this is forbidden. And, in any event, one may not wash in a well or ditch whose waters are designated for drinking.”
The danger of drinking polluted water finds expression in the prohibition cited in the Gemara not to drink water that was left uncovered for fear that a snake drank from the liquid while it was unguarded and cast its venom into it. Chazal further enacted (Avoda Zara 12b) that “a person may not place his mouth on a water pipe and drink because of the danger… a person should not drink water from the rivers or ponds neither with his mouth nor with one hand” (which would leave him little time to properly examine it); “and if he did drink from a river or pond in either of these ways, his blood is on his head, because of the danger.”
In the bye-laws for the “Mishkenot Sha’ananim” neighborhood in Jerusalem, it is stated expressly how “the immersion room and the Mikveh must be clean of any dirt, and no mud or dirt shall be seen there.”
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
Jewish Law in our Times > Environmental Protection
moshe, 5/27/2005 6:58:24 AM