Simon Jackson
Legal Advisor to Torah Mitzion
“Yishuv A” sued its neighbour “Yishuv B” on the grounds that when the latter irrigated fields using a mixture of reservoir and sewage water this detrimentally affected the quality of life of its residents, due to the strong stench that fills the air when purifying the sewage water during the irrigation process.
“Yishuv B” argued that the irrigation of its fields using this method formed a significant part of its livelihood; that the reservoir was built with the consent of the competent health and environmental protection authorities, one of the aims of which to solve the problem of absorption of the sewage water by the surrounding Yishuvim, including Yishuv A; that the irrigation was generally performed at night and only lasted for 2.5 months each year, once every 2 days only, during the cotton season, and did not always cause a stench.
How did the Beit Din rule?
General Principles
Smoke Mars the Beauty of Jerusalem
“We do not make kilns in the city because of the smoke” (Bava Kamma 82b) “because of the smoke.” Rashi explains: “smoke would blacken the city wall and mar the beauty of Jerusalem.” According to the Tosefta (Bava Batra 1:10), in general, “kilns must be distanced 50 amot from the city.”
In contrast to the distancing of kilns, the distancing of smoke was fixed at a rate which would guarantee that the smoke would not approach and injure people’s eyes, causing them distress.
Smoke damage is regarded as a nuisance which the injured party is entitled to prevent. Moreover, the injured party’s failure to protest does not establish the perpetrator’s right to continue his offensive practice (Bava Batra 23a). Since the damage in these cases is to the injured party himself – not to his property – and causes him to suffer, the law presumes that he never waives his right to restrain the perpetrator. According to Rabbeinu Tam, the injured party may retract his implicit consent, even if a legally binding kinyan was made to waive this right, because it was made under mistaken premises, if he claims that the discomfort is worse than he anticipated!
Is Smoke Always Bad?
What if, for example, an oven serves the cooking and baking needs of a particular householder, who is unable to locate the oven elsewhere, and has done everything possible to mitigate the damage (e.g. by building a chimney)? Can the injured party still protest?
The great 13th century Talmudic commentator, Rav Menachem Meiri, writes as follows in this regard:
A person who constructs a chimney in his garden for the smoke to escape, and the smoke escapes, and the common wind comes along and blows the smoke into his neighbor’s window and fills his house with fire – our greatest ancestors from Narvona (Provence) grappled with this issue, and nonetheless they tended to conclude that in any such case the injured party is unable to protest and to force the damager to close up his chimney, for if we were to rule otherwise, what has he gained by his act?
A similar ruling was issued in connection with the dying of wool, when the smell from the barrels in which the dying took place disturbed the neighbors. The 16th century Salonikan Halachist, R. Shmuel ben Moshe de Medina (the Maharshdam), rules that he cannot be removed, also because “the majority of our livelihood is dependent upon this activity, and it is impossible to survive without this” and if you wish to remove them “no one would be able to survive”!
From the General to the Specific
In the case at hand, the Beit Din ruled as follows, basing itself on the above and other similar principles:
1) According to the Chazon Ish, inside toilets are now the norm, and no one may therefore protest against their smell. Similarly, nowadays waste water is no longer cast into the sea, but every area has a reservoir for purifying and using sewage water, and therefore no one can protest this minhag, especially in an agricultural area in which the use of such water is sanctioned by the competent authorities, who would certainly take action in the event of any damage to health.
2) The damage caused by the smell from the irrigation, when it actually occurs, is not great or frequent. It is therefore bearable (based on the above Meiri).
3) The bad smell is not constant and it only occurs during the irrigation process for a short time each year. Moreover, one can live with the smell, as evidenced from the other adjoining Yishuvim. Finally, the livelihood of those who work in the area depends on irrigation of the cotton fields, ‘for otherwise no one would be able to survive’ (Maharshdam) and Yishuv A would then become the damager! One can therefore expect Yishuv A to demonstrate a little goodwill and patience for the few occasions that an unpleasant smell reaches him.
4) The defendant went out of its way to pump oxidized water into the sewage water, at great expense, and thus minimized the stench to the extent possible. The defendant should continue making efforts to return to the pre-damage state.
5) Provided any technical problems that have occurred are sorted out, the defendant can continue to irrigate as in the past. However, if technical problems re-arise in the future, the defendant should try and alleviate, in whatever way possible, the neighbors’ distress, even if this entails reasonable expenditure.
Next Column: From Smoke to Smoking: Are Environmental Pollutant and Health Hazard
