The owner or person in possession of land is not at liberty to use it as he pleases. Land, even if unencumbered, may not be used in such manner as to harm or disturb one's neighbors. Any neighbor can require the offending landowner to abate the nuisance or to have the cause thereof removed from their common boundary.
Among the restraints imposed on the use of land, the Mishnah (BB 2) makes mention of the following: A person may not dig a cistern near to his neighbor's cistern or wall, since they would thus be damaged, and he must remove lime from the vicinity of his neighbor's wall; he may not open a bakery or stable under his neighbor's barn, nor a shop on residential premises where the customers will disturb the neighbors; he may not build a wall so close to his neighbor's windows as to darken them; he must not keep his ladder near his neighbor's dovecote since it will enable a weasel to climb it and devour the pigeons; his threshing floor must not be too near a town or his neighbor's field lest the chaff harm the vegetation. There are further instances of the potentially harmful use of land enumerated in the Talmud.
The tanna, R. Yose, is of the opinion that the person creating a nuisance cannot be obliged to abate it and is free to act as he pleases and the injured party must keep his distance if he wishes to avoid suffering harm. The halakhah of the Talmud was decided in accordance with R. Yose's view, but the latter was interpreted as admitting that the tort-feasor must abate a nuisance if the interference with his neighbor's use of his property arises from his own harmful act (i.e., an act of his own body, as if he had "shot arrows" into his neighbor's domain; BB 22b). The scope of this qualification is not clear and some scholars hold that most of the injuries enumerated in the Mishnah (above) are of the kind qualified by R. Yose, which the latter concedes must be abated by the tort-feasor. Other scholars hold that R. Yose disagrees with the abovementioned mishnayot and obliges the tort-feasor to abate a nuisance only when damage is actually (and directly) caused by his own act (see Rashi and Tos. ibid.). In fact, in the post-talmudic period, the instances in which R. Yose was considered to have conceded the existence of tort-feasor's obligation to abate a nuisance were extended as far as possible (see *Asher b. Jehiel (Rosh), quoted in Tur, ḤM 155:20–23). The Talmud (BB 17b) also records the dispute over the question whether the obligation – when it exists – of abating a nuisance applies even if the offender's particular use of his land preceded that of his neighbor – the latter suffering no damage until the time of such conflicting use by him – or whether prior use takes precedence. Thus if the injured party's particular use of his land preceded his neighbor's conflicting use of his land, the latter must curtail his use, but if the other way round the obligation rests upon the injured party. There is an opinion (Tos. ibid., 18b), which holds that the rule of precedence by virtue of prior use is universally accepted and that there is no dispute save with regard to a single case, that of digging a cistern in the vicinity of a common boundary with a neighbor.
Which Nuisance Must Be Abated
An analysis of the cases of nuisance referred to in talmudic literature and the reasoning behind them suggests that all cases of nuisance may be divided into four categories:
(1) An interference arising when land is used in a manner usual for that particular place and time, but the neighbor suffers injury in an unusual manner, either because of the unusual use of his own land or because he is uncommonly sensitive to the disturbance. It is unanimously agreed that in this event the alleged tort-feasor is at no time obliged to abate the so-called nuisance.
(2) The tort-feasor uses his land in an unusual manner for that particular place and time, while the injured neighbor uses his land in the usual manner, in the same way as other people do, and is neither more sensitive nor anxious than most people. In this event all agree that the tort-feasor must always abate the nuisance he has created.
(3) Both parties use their land in the usual manner and the injured party is not uncommonly sensitive.
(4) The tort-feasor uses his land in an unusual manner, and the injured party does so too or is uncommonly sensitive.
The latter two categories are the subject of the dispute mentioned above between R. Yose and the sages, as to whether the party causing the nuisance is obliged to abate it or whether it must be suffered by the injured neighbor; and of the dispute whether the injuring party must always abate the nuisance or whether it is a matter of prior use taking precedence. Most acts of nuisance referred to in the Talmud fall into the third of these categories (see Albeck, bibliography).
The Rules of Nuisance as Part of the Law of Property
The prohibition against using land in a manner interfering with a neighbor's enjoyment of his own property is inherent in the proprietary rights over that immovable property, and the right to the undisturbed use of one's property may be sold like any other proprietary right. A person may sell or transfer part (or all) of his right to the undisturbed enjoyment of his property by agreeing to a particular use of his neighbor's property, whereupon the neighbor may make such use of his land regardless of any nuisance thereby caused to the former. Thus, for instance, a person may become entitled to erect a dovecote alongside this common boundary and may transfer this right, together with the land itself, to a new owner. Furthermore this right is retained by the owner of the disturbing property even when the adjacent land is sold to a new owner (see Sh. Ar., ḤM 155:24). A nuisance which is continued for a period of three years (or even from the outset, according to some scholars), if supported by a plea that the right was granted to him by the injured neighbor (or even without such a plea, according to some scholars), constitutes evidence of such right of user. However, these rules apply only when the nuisance is not so severe as to be insufferable (ibid., 155:35–36.)
Relationship of Nuisance to the Laws of Tort
A person suffering a nuisance may oblige his neighbor to abate the nuisance and if physical damage results from the nuisance which itself was the result of the neighbor's negligence, he is also entitled to be compensated for such damage (BB 20b). If the nuisance is of a kind which the law does not require the tort-feasor to abate, the neighbor cannot oblige the tort-feasor
Visual Trespass (hezzek re'iyyah)
The damage occasioned by a neighbor's ability to "look" into another person's home (hezzek re'iyyah) is a nuisance bearing unique characteristics. It occurs as a result of the neighbor's ability to observe another person's activities in his home. The damage may be caused when a person builds a window opposite his neighbor's window in a way that enables him to see into his neighbor's home, and the "trespasser" may be compelled to remove the potential source of damage – i.e., his visual trespass into another person's private domain – by requiring him to close off the window (Mish., BB 3:7; Yad, Shekhenim 5:6; Sh. Ar., ḤM 154:3). In the case of partners sharing the same courtyard, the possibility of this kind of trespass, occasioned by the proximity of their dwellings, imposes on each of the parties the advance (financial) obligation of erecting a partition between the separate parts of the courtyard (BB 2:2; Yad, Shekhenim 2:14; Sh. Ar. ḤM 157:1).
Regarding partners to the same courtyard, the posekim agree that one cannot acquire a ḥazakah, i.e., a right established by ongoing practice, to visually trespass in another person's domain. Hence both parties are entitled at all times to force the other to participate in the construction of the partition, and the other cannot argue that a waiver may be inferred from the length of time that has elapsed without protest (Maim., Yad, Shekhenim 11:4; Sh. Ar., ḤM 155:36). The posekim however dispute the question of visual trespass created by the construction of a window. The issue is whether visual trespass under these circumstances establishes a ḥazakah (in the sense referred to above) so that in the absence of protest by the other party, the builder of the window gains the right to perpetuate the existing situation, and what length of time must elapse after the window's construction for a lack of protest to be deemed as a waiver on the neighbor's part. This dispute is based on the various tannaitic views cited in the Talmud (BB 59b), and indicates the uniqueness of this type of nuisance. Certain posekim view this form of trespass as analogous to any other nuisance, so that if protest is not expressed from the outset, it may be seen as consent and the person causing it will acquire a ḥazakah with respect thereto (Yad, Shekhenim 5:6; Kesef Mishneh, ad loc.; Yad, Shekhenim 11:4; Maggid Mishneh, ad loc.). Other posekim classify it as a nuisance in respect of which there can be no ḥazakah based on waiver because it falls into the category of nuisance caused without any action being taken and, as such the nuisance is a permanent one and the evidentiary presumption is that others do not pardon it. Nevertheless, if one of the parties waived his right to the other by a formal kinyan, his waiver is effective and he cannot retract it (Rif, quoted in Nimukkei Yosef, BB 1b; for a general discussion of waiver of obligations, see *Acquisition; *Meḥilah). A third view is presented by the Rashba (Resp. Rashba, vol. 2. no. 268; see also Ḥiddushei ha-Ramban to BB 59a). Rashba states that visual trespass is forbidden, not only in terms of civil law, but in order to preserve modesty, which a Jew is not at liberty to waive, and should he do so his waiver is invalid. Rashba finds support for this opinion in the words of Rabbi Johanan in the Talmud (BB 60a), who states that the law of hezzek re'iyyah is based on the Biblical verse (Numbers 24:2): "And Bilaam lifted up his eyes and he saw Israel dwelling according to their tribes," which emphasizes the modesty of Israel. In light of this ruling, Rashba stated that a custom accepted by the people in a place not to insist on matters involving visual trespass is an erroneous custom and of no validity (see *Minhag; *Mistake). Some consider Rashba's statement as the source for protection of privacy in Jewish law (see *Rights, Human).
[Menachem Elon (2nd ed.)]
Gulak, Yesodei, 1 (1922), 134, 146f; ET, 8 (1957), 659–702; 10 (1961), 628–96; S. Albeck, in: Sinai, 60 (1967), 97–123. ADD. BIBLIOGRAPHY: M. Elon, Ha-Mishpat ha-Ivri (1988), 1:763f.; 879ff.; idem, Jewish Law (1994), 2:942f.; 1073ff.; Enẓiklopedyah Talmudit, 8, 659.
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