Here we'll continue to talk about planting trees and how far they have to be from a neighbor's water pit. The Mishnah says: A person has to distance a tree he is planting at least 25 amot (cubits) away from the bor, the pit of his neighbor. A pit usually stores water, and we want to make sure the roots of the tree aren't going to interfere with or damage the pit. But if we're talking about a carob or a sycamore tree, whose roots are a lot longer and stronger and could extend even farther, we say that the tree has to be at least 50 amot from the pit to really ensure that these roots aren't going to damage it.
The halachot (Jewish laws) over here apply whether the tree is higher than the bor or whether the tree and the bor are side by side. Basically, what we're saying over here is that it doesn't matter what level they're at. The roots of the tree could grow upwards or downwards, and they could harm the pit in any way. So therefore, regardless of where the tree and the bor are in terms of the layout, the roots could go in any direction and cause damage. So therefore, 50 amot. 50 amot applies no matter what.
Earlier in the Perek (chapter), we said that if a tree is planted too close to an entrance, it's removed, and no compensation is given to the owner of that tree. Here we'll talk about what happens if it's too close to the bor. If the bor was there before the tree was planted, and the tree is too close to the pit, either 25 or 50 amot, the owner of the tree cuts down the tree, but then that neighbor has to pay him for the tree. Even though the tree was planted in a way that was against the halacha, the owner is not causing damage right now. What we're scared of is that down the line, when the roots eventually grow to a point where they can cause damage, they're going to harm the pit. That's what we're scared of: something happening later on, years down the road.
So therefore, Hachamim (Sages) said we're going to make the person remove the tree to prevent damage that's going to happen later on, but at the same time, we can't make him do that without getting paid for it. So therefore, the owner of the bor would have to pay him for the removal of that tree.
But if the tree was put there before the pit was dug, then he doesn't even have to cut it down, because the tree was put there with the right halachic ability to... And the person who put the bor there put himself at risk. But if we don't know which one came first, the tree or the bor, lo yakotz, he would not have to cut down this tree. So, like we said, the tree here would only have to be cut down against the owner's will if it was put there after the bor was there, after the pit was there. And we don't know. So therefore, the burden of proof is on the owner of the bor to prove that the tree came there after the bor was already there, and he has no proof. So therefore, he can't prove that the tree is illegal, and he cannot force him to cut it down.
Rabbi Yosei disagrees with all of this. Rabbi Yosei says: Even if the pit was there before the tree was planted, the owner does not have to cut down the tree. Because the rule is, a person is allowed to do whatever he wants on his property. It's always permitted to do whatever you want on your property. You're allowed to plant a tree very close to the neighbor's property, as long as it's on your property. And if the roots happen to go there a very long time from now, that's not your problem. Right now, you're planting on your property, and therefore, that is permissible.