MISHNAH. IF A MAN POURS OUT WATER INTO PUBLIC GROUND AND SOME OTHER PERSON IS INJURED BY IT, THERE IS LIABILITY FOR THE DAMAGE. IF HE HIDES THORNS AND BROKEN GLASS, OR MAKES A FENCE OF THORNS, OR, IF A FENCE FALLS INTO THE PUBLIC GROUND AND DAMAGE RESULTS THEREFROM TO SOME OTHER PERSONS, THERE IS [SIMILARLY] LIABILITY FOR THE DAMAGE.4
GEMARA. Rab said: This Mishnaic ruling5 refers only to a case where his garments6 were soiled in the water. For regarding injury to himself there should be exemption, since it was ownerless ground that hurt him.7 [But] R. Huna said to Rab: Why should not [the topmost layer of the ground mixed up with private water] be considered as private clay?8 — Do you suggest [the ruling to refer to] water that has not dried up? [No.] It deals with a case where the water has already dried up. But why [at all] two [texts9 for one and the same ruling]?10 — One [text] refers to the summer season whereas the other deals with winter, as indeed [explicitly] taught [elsewhere]: All those who open their gutters or sweep out the dust of their cellars [into public thoroughfares] are, in the summer period, acting unlawfully, but lawfully in winter; [in all cases] even though when acting lawfully, if special damage resulted, they are liable to compensate.11
IF HE HIDES THORNS etc., R. Johanan said:4 This Mishnaic ruling refers only to a case where the thorns were projecting into the public ground. For if they were confined within private premises there would be no liability. On what account is there exemption [in the latter case]? — R. Aha the son of R. Ika [thereupon] answered:12 Because it is not the habit of men to rub themselves against walls.
Our Rabbis taught: If one hid thorns and broken glasses in a neighbour's wall and the owner of the wall came and pulled his wall down, so that they fell into the public ground and did damage, the one who hid them is liable. R. Johanan [thereupon] said: This ruling refers only to an impaired wall.13 For in the case of a strong wall the one who hid [the thorns] should be exempt while the owner of the wall would be liable.14 Rabina commented: This ruling15 proves that where a man covers his pit with a neighbour's lid and the owner of the lid comes and removes his lid, the owner of the pit would be liable [for any damage that may subsequently be caused by his pit]. Is not this inference quite obvious?16 — You might perhaps have suggested this ruling15 [to be confined to the case] there, where the owner of the wall had no knowledge of the identity of the person who hid the thorns in the wall, and was accordingly unable to inform him of the intended pulling down of the wall, whereas in the case of the pit, where the owner of the lid very well knew the identity of the owner of the pit, [you might have argued] that it was his duty to inform him [of the intended removal of the lid].17 It is therefore made known to us [that this is not the case].18
Our Rabbis taught: The pious men of former generations used to hide their thorns and broken glasses in the midst of their fields at a depth of three handbreadths below the surface so that [even] the plough might not be hindered by them. R Shesheth19 used to throw them into the fire.20 Raba threw them into the Tigris. Rab Judah said: He who wishes to be pious must [in the first instance particularly] fulfil the laws of [Seder] Nezikin.21 But Raba said: The matters [dealt with in the Tractate] Aboth;22 still others said: Matters [dealt with in] Berakoth.23
MISHNAH. IF A MAN REMOVES HIS STRAW AND STUBBLE INTO THE PUBLIC GROUND TO BE FORMED INTO MANURE, AND DAMAGE RESULTS TO SOME OTHER PERSON, THERE IS LIABILITY FOR THE DAMAGE, AND WHOEVER SEIZES THEM FIRST ACQUIRES TITLE TO THEM. R. SIMEON B. GAMALIEL SAYS: WHOEVER CREATES ANY NUISANCES ON PUBLIC GROUND CAUSING [SPECIAL] DAMAGE IS LIABLE TO COMPENSATE, THOUGH WHOEVER SEIZES OF THEM FIRST ACQUIRES TITLE TO THEM. IF HE TURNS UP DUNG THAT HAD BEEN LYING ON PUBLIC GROUND, AND DAMAGE [SUBSEQUENTLY] RESULTS TO ANOTHER PERSON, HE IS LIABLE FOR THE DAMAGE.
GEMARA. May we say that the Mishnaic ruling24 is not in accordance with R. Judah? For it was taught: R. Judah says: When it is the season of taking out foliage everybody is entitled to take out his foliage into the public ground and heap it up there for the whole period of thirty days so that it may be trodden upon by the feet of men and by the feet of animals; for upon this understanding did Joshua make [Israel]25 inherit the Land. — You may suggest it to be even in accordance with R. Judah, for R. Judah [nevertheless] agrees that where [special] damage resulted, compensation should be made for the damage done. But did we not learn that R. Judah maintains that in the case of a Chanukah candle26 there is exemption on account of it having been placed there with authorization?27 Now, does not this authorization mean the permission of the Beth din?28 — No, it means the sanction of [the performance of] a religious duty29 as [indeed explicitly] taught: R. Judah says: In the case of a Chanukah candle there is exemption on account of the sanction of [the performance of] a religious duty.
Come and hear: In all those cases where the authorities permitted nuisances to be created on public ground, if [special] damage results there will be liability to compensate. But R. Judah maintains exemption!30 — R. Nahman said: The Mishnah31 refers to the time when it is not the season to take out foliage and thus it may be in accordance with R. Judah. — R. Ashi further [said]:
Baba Kamma 30b
The Mishnah states, HIS STRAW AND STUBBLE which are slippery [and may never be removed into public ground even according to R. Judah].
WHOEVER SEIZES THEM FIRST ACQUIRES TITLE TO THEM. Rab said: Both to their corpus and to their increase [in value],1 whereas Ze'ire said: Only to their increase but not to their corpus.2 Wherein is the point at issue?3 — Rab maintains that they [the Rabbis] extended the penalty to the corpus on account of the increase thereof, but Ze'ire is of the opinion that they did not extend the penalty to the corpus on account of the increase thereof.
We have learnt: IF HE TURNS UP DUNG THAT HAD BEEN LYING ON PUBLIC GROUND AND DAMAGE [SUBSEQUENTLY] RESULTS TO ANOTHER PERSON, HE IS LIABLE FOR THE DAMAGE. Now, [in this case] it is not stated that 'Whoever seizes it first acquires title to it.'4 — [This ruling has been] inserted in the commencing clause, and applies as well to the concluding clause. But has it not in this connection5 been taught [in a Baraitha]: They are prohibited [to be taken possession of] on account of [the law of] robbery?6 — When [the Baraitha] states 'They are prohibited on account of robbery' the reference is to all the cases [presented] in the Mishnaic text7 and [is intended] to [protect] the one who had seized [of them] first, having thereby acquired title [to them]. But surely it was not meant thus, seeing that it was taught:8 'If a man removes straw and stubble into the public ground to be formed into manure and damage results to another person, he is liable for the damage, and whoever seizes them first acquires title to them, as this may be done irrespective of [the law of] robbery. [However] where he turns up dung on public ground and damage [subsequently] results to another person, he is liable [to compensate] but no possession may be taken of the dung on account of [the law of] robbery'?6 — R. Nahman b. Isaac [thereupon] exclaimed: What an objection to adduce from the case of dung! [It is only in the case of] an object that is susceptible to increase [in value] that the penalty is extended to the corpus9 for the purpose of [discouraging any idea of] gain, whereas with regard to an object that yields no increase there is no penalty [at all].10
The question was asked: According to the view that the penalty extends also to the corpus for the purpose of [discouraging the idea of] gain,9 is this penalty imposed at once11 or is it only after some gain has been produced that the penalty will be imposed? — Come and hear: An objection was raised [against Rab] from the case of dung!12 But do you really think this [solves the problem]? The objection from the case of dung was raised only before R. Nahman expounded the underlying principle;13 for after the explanation given by R. Nahman what objection indeed could there be raised from the case of dung?14
Might not one suggest [the argument between Rab and Ze'ire to have been] the point at issue between [the following] Tannaim? For it was taught: If a bill contains a stipulation of interest,15 a penalty is imposed so that neither the principal nor the interest is enforced; these are the words of R. Meir, whereas the Sages maintain that the principal is enforced though not the interest.16 Now, can we not say that Rab adopts the view of R. Meir17 whereas Ze'ire follows that of the Rabbis?18 — Rab may explain [himself] to you [as follows]: 'I made my statement even according to the Rabbis: for the Rabbis maintain their view only there, where the principal as such is quite lawful, whereas here in the case of nuisances the corpus itself is liable to do damage.' Ze'ire [on the other hand] may explain [himself] to you [thus]: 'I made my statement even in accordance with R. Meir; for R. Meir expressed his view only there, where immediately, at the time of the bill having been drawn up, [the evil had been committed] by stipulating the usury, whereas here in the case of nuisances, who can assert that [special] damage will result?'
Might not one suggest [the argument between Rab and Ze'ire to have been] the point at issue between these Tannaim? For it was taught: If a man removes straw and stubble into the public ground to be formed into manure and damage results to another person, he is liable for the damage, and whoever seizes them first acquires title to them. They are prohibited [to be taken possession of] on account of [the law of] robbery. R. Simeon b. Gamaliel says: Whoever creates any nuisances on public ground and causes [special] damage is liable to compensate, though whoever takes possession of them first acquires title to them, and this may be done irrespective of [the law of] robbery. Now, is not the text a contradiction in itself? You read, 'Whoever seizes them first acquires title to them,' then you state [in the same breath], 'They are prohibited [to be taken possession of] on account of [the law of] robbery'! It must therefore mean thus: 'Whoever seizes them first acquires title to them,' viz., to their increase, whereas, 'they are prohibited to be taken possession of on account of [the law of] robbery,' refers to their corpus. R. Simeon b. Gamaliel thereupon proceeded to state that even concerning their corpus, 'whoever seizes them first, acquires title to them.' Now, according to Ze'ire, his view must unquestionably have been the point at issue between these Tannaim,19 but according to Rab, are we similarly to say that [his view] was the point at issue between these Tannaim? — Rab may say to you: 'It is [indeed] unanimously held that the penalty must extend to the corpus for the purpose [of discouraging the idea] of gain; the point at issue [between the Tannaim] here is whether this halachah20 should be made the practical rule of the law'.21 For it was stated: R. Huna on behalf of Rab said: This halachah20 should not be made the practical rule of the law,22 whereas R. Adda b. Ahabah said: This halachah20 should be made the practical rule of the law. But is this really so? Did not R. Huna declare barley [that had been spread out on public ground] ownerless, [just as] R. Adda b. Ahabah declared
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