The final Mishnah (10:6) discusses a case where two neighbouring garden patches, with different owners, are on different levels, one a step above the other. As a result of the layout, a natural wall or incline divides the two. The Mishnah records a debate regarding the ownership of the vegetables that grow out of that wall. While the vegetables are rooted in the soil of the upper field, they grow in the airspace of the lower one. R' Meir argues the owner of the upper field has the stronger claim, while R' Yehuda disagrees. R' Shimon presents a third opinion that the owner of the upper patch has a claim to any of the vegetables he can reach, while everything else belongs to the owner of the lower one.
The Rashi explains that R' Shimon agrees with R' Meir. In other words, since each party provide an essential component for the vegetable's growth, where it draws its nutrients from is the deciding factor. Nevertheless, he forgoes any of the produce he cannot reach; it is otherwise degrading to enter his neighbour's field to collect the vegetables.
The Gemara (119a) however asks a further question. What is the law regarding the vegetables where the upper owner can reach their branches or leaves but not the roots, or roots but not the branches? The Gemara leaves the matter unresolved.
The Tur (167) rules that in such a case they would divide those vegetables in question. This is based on the fact we divide money whose ownership is unclear. The Tur however continues that if the upper owner takes the vegetables, he may keep them. The Bach suggests that this is since the Rosh found the Gemara's conclusion difficult. By grasping the leaves the root will follow, so they should clearly belong to the upper owner. Consequently the Tur maintains the Gemara's conclusion that ideally we must divide the vegetables. Nevertheless, if the upper owner takes the vegetables he may keep them, since logic stands by his position.
The Beit Yosef however cites the Rambam (Shcheinim 4:9), that the upper owner should not touch them. Furthermore he makes no reference to splitting these vegetables. If however the upper owner takes them, we do not forcibly retrieve them. The Beit Yosef rules accordingly and explains that the Rambam understand that the lower owner has the chazaka (presumption of ownership) which we fall back on in the case of doubt. Why?
To understand the Rambam we will revisit the question of the Rosh. The Perisha explains that this question is only difficult according to Rashi's reasoning. In other words, the owner of the upper patch can take everything he can reach, and forgoes the rest. If he can reach the leaves, and pull out the vegetable, why would he forgo them? This is indeed the Ramban's difficulty with Rashi's explanation. He adds that according to Rashi, the limitation of R' Yanai that excludes those vegetables that the upper owner could only reach at a stretch, also does not make sense. Why would the upper owner forgo them if he can still reach them?
The Perisha however explains that the Rambam understands R' Shimon differently. Each of the parties have an equal claim. R' Shimon simply resolves it based on how much the upper owner can reach. The remainder is considered as being in the lower field's domain. Furthermore, the Rambam understands that the question is where the upper owner can reach the leaves but grasping at them would not uproot the vegetables. The question then is how we treat the leaves – do they follow the roots? Since the matter is unresolved, yet the ownership of the roots is clear, the Rambam maintains that the chazaka is with the lower owner.
The Bi'ur HaGra however explains that the Rambam understands that the R' Shimon agrees with R' Yehuda, yet grants the owner of the upper field anything he can reach. The Ramban also maintains this position and explains that the owner of the bottom field forgoes those vegetables in reach of the upper field out of concern that a dispute will result in the owner of the upper field removing the soil holding the vegetables. Consequently, as the Beit Yosef explained above, the owner of the lower patch has the chazaka. The ownership of the upper owner is a function of has reach – his action. Since the doubt is in this action, the Rambam defaults to the lower owner who has the first claim.1
1 When explaining the opinion of the Rambam we have leaned on a chazaka as a means of resolving the issue. One question we have not addressed, is why the Tur does not do the same, but instead splits the vegetables. See the Sridei Esh (I, 141:2) for more details.
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