Chazakah does not obtain with a marzev [a small spout placed at the end of a roof gutter], but it does obtain with its place. [If there were a marzev there, and the owner of the courtyard came to remove it completely, so that the roof waters not spill into his courtyard, he may not do so; for the other already has a chazakah that his roof waters spill from that marzev. But if he came to turn it around, e.g., if it were positioned in the south, and he came to position it in the north, the owner of the marzev cannot stop him, for he loses nothing thereby, and he has no chazakah that it was always positioned on one side. "marzev" — the place whence the drop of rain flows. "mar" = a drop, as in (Isaiah 40:15): "Behold, nations are as a drop (mar) out of a bucket."] Chazakah does obtain with a mazchilah [a roof gutter. Being a fixed object, it has a chazakah.] Chazakah does not obtain with an Egyptian ladder. [Since it is small and not fixed, one does not object to another's placing it in his courtyard in order to go up to his (own) roof or dove-cote, for which reason it has no chazakah.] Chazakah does not obtain with an Egyptian window. [A small aperture, not large enough for a man's head to go through has no chazakah. And if the owner of the courtyard wishes to build opposite the window and block it, the owner of the window cannot tell him: "I already have a chazakah in it, and you may not block it." For the other can tell him: "I allowed it only because it caused me no damage." And even so, if he wished, he could have stopped him from making it in the first place, even if it were higher than four cubits. For he could have told him: "(I object), for you might put a bench under the window to gaze at me." And after having allowed him to make it, too, he has no chazakah.] And chazakah obtains with a Tyrian window, [an aperture through which a man's head can fit, even if it is higher than four cubits. Or an aperture made to admit light, even if it is very small. Or a window below four cubits. All of these three apertures — If one allowed them to be made, chazakah obtains with them, and he (the owner of the courtyard) can no longer build opposite them and block them. For chazakah obtains where there is (acquiescence in) damages, with the exception of (damages of) smoke, dust, and privy (i.e., a foul odor), chazakah not obtaining with these three, even after the passage of many years. But chazakah does obtain with (acquiescence in) sight damages. And three years of chazakah are not required for damages; but it obtains as soon as he (the "damager") can tell the damaged one: "You experienced the damage and did not protest."] Which is an Egyptian window? Whatever a man's head cannot fit through. R. Yehudah says: If it has a frame, [such as a lintel above and a cross-piece below], even if a man's head cannot fit through, chazakah obtains with it. A ziz [wood or stone projecting from a wall into the courtyard of one's neighbor], until a handbreadth, chazakah obtains with it. [If it is a handbreadth or more, chazakah obtains with it and the owner of the courtyard may not build against it and block the ziz, the other having a chazakah in it.] And he can protest. [If the owner wishes to insert a ziz, a handbreadth or more, the owner of the courtyard may protest against his doing so.] With less than a handbreadth chazakah does not obtain, and he cannot protest. [If it is less than a handbreadth, it is not a fixed object, for which reason chazakah does not obtain with it, so that the other may build against it and block it. And if the owner of the wall wishes to insert such a ziz to begin with, the owner of the courtyard cannot stop him.]
Bartenura on Mishnah Bava Batra
מרזב – a small spout, that they place it at the end of the large spout that goes all around the perimeter of the roof.
Ask RabbiBookmarkShareCopy
English Explanation of Mishnah Bava Batra
Introduction
Mishnah six continues to discuss what types of activities can create chazakah.
Ask RabbiBookmarkShareCopy
Bartenura on Mishnah Bava Batra
אין לו חזקה ויש למקומו חזקה – if there was a there a spout and the owner of the courtyard came to uproot it completely, so that the water of he roof would not spill into his courtyard, he is not able to do so, for he already has possession for this that the root waters spill via that spout, but if he comes to reverse it, that it was placed in the southern direction and he comes to place it in the northern direction, the owner of the movable tube attached to the roof gutters cannot delay it, for it is not something that causes him loss, and he lacks possession, for it will always stand in that direction.
Ask RabbiBookmarkShareCopy
English Explanation of Mishnah Bava Batra
Our mishnah continues to discuss the same issue as we discussed in the previous mishnah: which acts entail possession in order to establish the right to continue to do the acts after a period of three years. If the act is considered a sign of possession than the owner of the item can tell others that they may not use the object. Since if another person uses the object he will establish the right to continue to do so in the future, it makes sense that the owner can prevent them from usage in the present. If, however, the act is relatively insignificant, and will not lead to the right to continue to do the act in the future, than the owner cannot prevent others from doing so in the present. We will now explain each section separately.
Ask RabbiBookmarkShareCopy
Bartenura on Mishnah Bava Batra
מרזב – the place where the drop of rain water flows from it. [The word] מר /bitter is a טפה/droop, like (Isaiah 40:15): “The nations are but a drop in a bucket.”
Ask RabbiBookmarkShareCopy
English Explanation of Mishnah Bava Batra
A gutter spout cannot cause title through possession [so that the spout may still be moved] but title through possession may be claimed to its place [so that the place must be left for its present purpose]. A gutter spout is a tiny pipe on the edge of a larger gutter pipe which would be on the roof to allow drainage of water. If the spout, which belongs to one person, is draining into another’s courtyard the owner of the courtyard can direct the spout out of his courtyard and this will not establish possession over the spout. He cannot, however, totally remove the spout for the mere existence or non-existence of the spout is a sign of possession. If he were to remove the spout and the owner were not to protest, the owner would not be able to protest after three years.
Ask RabbiBookmarkShareCopy
Bartenura on Mishnah Bava Batra
מזחילה – a large spout that supports all the length of the roof. This is a something fixed, therefore it has presumed possession.
Ask RabbiBookmarkShareCopy
English Explanation of Mishnah Bava Batra
A gutter can give title through possession. A gutter (larger than the spout) is a sign of possession. Therefore the owner of a courtyard cannot even direct another person’s gutter, for if the owner were not to protest after three years he would lose his right to do so.
Ask RabbiBookmarkShareCopy
Bartenura on Mishnah Bava Batra
סולם [המצרי] – small and is not fixed, and no one is strict about it if one puts it into the courtyard of his fellow in order to ascend on it to his roof or to the dovecote. Therefore, it does not have presumption of possession.
Ask RabbiBookmarkShareCopy
English Explanation of Mishnah Bava Batra
An Egyptian ladder cannot give title through possession but a Tyrian ladder can. An Egyptian ladder is a small ladder used on a temporary basis. Placing one in another person’s courtyard is not a significant act. If Reuven were to place his Egyptian ladder on Shimon’s property for three years, Shimon could still protest after three years. However, the use of a Tyrian ladder, which is large, is a significant act. If a person were to use it in another’s courtyard for three years then the owner of the courtyard could not subsequently protest.
Ask RabbiBookmarkShareCopy
Bartenura on Mishnah Bava Batra
חלון המצרי – a small window where the head of person cannot enter it,
Ask RabbiBookmarkShareCopy
English Explanation of Mishnah Bava Batra
An Egyptian window cannot give title through possession but a Tyrian window can. What is an Egyptian window? Any through which a man’s head may not enter. Rabbi Judah says: “If it has a frame, even though a man’s head cannot enter through it, it can give title through possession.” An Egyptian window is a small window. If Reuven were to open an Egyptian window in the wall of his courtyard and it were to exist for three years, Shimon could still subsequently block the window. Even though Shimon did not protest for three years, there are no subsequent rights caused by a small window. However, a Tyrian window which is large, does cause subsequent rights. If Reuven were to open a Tyrian window in the wall of his courtyard and it were to exist for three years, Shimon could not subsequently block the window. If he wished to protest he should have done so during the three years.
Ask RabbiBookmarkShareCopy
Bartenura on Mishnah Bava Batra
he has no presumption of possession, but if the owner of the courtyard wanted to build opposite the widow and to close it up, the owner of the window cannot say: “I have already taken possession of it and you cannot close it up.” And he said to him this: “You were not appeased other than that I didn’t have any damages in it, and even so, if he had wanted from the outset, when he opened it up, he could have delayed it that he would not open it. And even if it was higher than four cubits, for he could have said to him, lest you place a small bench near the window so that you can look at me, and after he placed it [also] he opened it, he has no presumption of possession.
Ask RabbiBookmarkShareCopy
English Explanation of Mishnah Bava Batra
A projection, if it extends a handbreadth or more can give title through possession, and the other [into whose premises it projects] can protest against it. But if it is less than a handbreadth it cannot give title through possession and the other cannot protest against it. If Reuven were to build a wall that had a projection on it, such as a stray piece of wood or stone, longer than a handbreadth and that projection were to extend onto Shimon’s property, and Shimon did not protest for three years, he could no longer protest. Since this is an intrusive projection, we also allow Shimon to force Reuven to take it down, provided he protest within three years. A smaller projection is different. If it were to extend less than one handbreadth into Shimon’s property, Shimon may not protest. However, even after three years Shimon could take down the projection, or otherwise block it, since there is no assumption of possession.
Ask RabbiBookmarkShareCopy
Bartenura on Mishnah Bava Batra
ולצורית יש לו חזקה – a window where the head of a person can enter into it, and even where it is higher than four cubits, or a window that is made of for its light, and even if it is very small, or a window which is lower than four cubits, each one of these three windows, if he left it and opened it, he has possession, but furthermore, he is not able to build opposite it and close it up, for there is possession for damages except for fumigating and dust and the bathroom, meaning to say, bad smell, for these three [things] do not have presumption of possession, even if he held them several years. But damage is a proof that he has possession, and he doesn’t need possession for damages for three years but when damage occurs, in order that he can say to the one who suffered damage: “you already knew of this damage and didn’t protest, this is possession.
Ask RabbiBookmarkShareCopy
Bartenura on Mishnah Bava Batra
מלבן – a building from outside like a kind of lintel from above or a lower door-sill from below.
Ask RabbiBookmarkShareCopy
Bartenura on Mishnah Bava Batra
זיז – wood or stone that projects out from its wall to the airspace of his fellow’s courtyard. If it has a handbreadth or more, he has possession and the owner of the courtyard opposite to him cannot build to close the projection [serving as a shed over the entrance], after he has taken possession of it.
Ask RabbiBookmarkShareCopy
Bartenura on Mishnah Bava Batra
ויכול למחות בו – when the owner of the wall comes to remove the projection which has a handbreadth or more, the owner of the courtyard can protest it that he should not remove it.
Ask RabbiBookmarkShareCopy
Bartenura on Mishnah Bava Batra
פחות מטפח – this is not a matter of being fixed. Therefore, he does not have possession, and he can build opposite him and close it up, and when the owner of the wall comes to remove it ab initio, the owner of the courtyard cannot prevent it.
