אָתוּ אוּמָּנֵי וְיָתְבִי תּוּתַיְיהוּ וְאָתוּ עוֹרְבֵי אָכְלִי דְּמָא וְסָלְקִי אַבֵּי תָאלֵי וּמַפְסְדִי תַּמְרֵי אֲמַר לְהוּ רַב יוֹסֵף אַפִּיקוּ לִי קוּרְקוּר מֵהָכָא אֲמַר לֵיהּ אַבָּיֵי וְהָא גְּרָמָא הוּא אֲמַר לֵיהּ הָכִי אָמַר רַב טוֹבִי בַּר מַתְנָה זֹאת אוֹמֶרֶת גְּרָמָא בְּנִיזָּקִין אָסוּר bloodletters would come and sit beneath them and perform their work there, and crows would come, eat the blood, and fly up to the palm trees and damage the dates. Rav Yosef said to the bloodletters: Remove these crowing birds from here, i.e., leave in order to avoid further damage. Abaye said to him: But it is an indirect action, as the bloodletters themselves are not damaging the dates. Rav Yosef said to him that Rav Tovi bar Mattana said as follows: That is to say that it is prohibited to cause even indirect damage.
וְהָא אַחְזֵיק [לְהוּ] הָא אָמַר רַב נַחְמָן אָמַר רַבָּה בַּר אֲבוּהּ אֵין חֲזָקָה לִנְזָקִין וְלָאו אִיתְּמַר עֲלַהּ רַב מָרִי אָמַר בְּקוּטְרָא וְרַב זְבִיד אָמַר בְּבֵית הַכִּסֵּא אֲמַר לֵיהּ הָנֵי לְדִידִי דַּאֲנִינָא דַּעְתַּאי כִּי קוּטְרָא וּבֵית הַכִּסֵּא דָּמוּ לִי: Abaye said to Rav Yosef: But they have established an acquired privilege to use that particular spot for their work. Rav Yosef replied: Doesn’t Rav Naḥman say that Rabba bar Avuh says: There is no acquired privilege of use in cases of damage, i.e., an established situation may not be allowed to continue in the event that damage results. Abaye inquired further: But wasn’t it stated with regard to that statement of Rav Naḥman that Rav Mari said it is referring specifically to smoke, and Rav Zevid said it is referring to a bathroom? In other words, this principle was stated specifically in the context of damage caused by these substances. Rav Yosef said to him: For me, as I am sensitive, these are like smoke and a bathroom to me, which is why I have the right to demand that the bloodletters leave.
מַתְנִי׳ מַרְחִיקִין אֶת הַשּׁוֹבָךְ מִן הָעִיר חֲמִשִּׁים אַמָּה וְלֹא יַעֲשֶׂה אָדָם שׁוֹבָךְ בְּתוֹךְ שֶׁלּוֹ אֶלָּא אִם כֵּן יֵשׁ לוֹ חֲמִשִּׁים אַמָּה לְכׇל רוּחַ רַבִּי יְהוּדָה אוֹמֵר בֵּית אַרְבַּעַת כּוֹרִין מְלֹא שֶׁגֶר הַיּוֹנֶה וְאִם לְקָחוֹ אֲפִילּוּ בֵּית רוֹבַע הֲרֵי הוּא בְּחֶזְקָתוֹ: MISHNA: One must distance a dovecote fifty cubits from the city to prevent doves from eating seeds in the town. And a person should not establish a dovecote within his own property unless he has fifty cubits in each direction between the dovecote and the edge of his property. Rabbi Yehuda says that one must have surrounding the dovecote the area required for sowing four kor of seed on each side, which generally extends as far as a dove flies in a single flight. And if one bought the dovecote with the land, he has the acquired privilege of its use even if it has surrounding it only the area required for sowing a quarter-kav of seed [beit rova] around it, and he need not remove it from there.
גְּמָ׳ חֲמִשִּׁים אַמָּה וְתוּ לָא וּרְמִינְהִי אֵין פּוֹרְסִין נִשְׁבִּין לְיוֹנִים אֶלָּא אִם כֵּן הָיָה רָחוֹק מִן הַיִּשּׁוּב שְׁלֹשִׁים רִיס GEMARA: The Gemara asks: Must one distance a dovecote only fifty cubits from the city and no more? Is that as far as one can expect a dove to fly? And the Gemara raises a contradiction from a mishna (Bava Kamma 79b): One may spread out traps [neshavin] for doves only if this was performed at a distance of at least thirty ris, or four mil, which is eight thousand cubits, from any settled area, to avoid catching birds that belong to another. Apparently, doves fly a distance of thirty ris, whereas the mishna here states fifty cubits.
אָמַר אַבָּיֵי מֵישָׁט שָׁיְיטִי טוּבָא וּכְרֵסַיְיהוּ בַּחֲמִשִּׁים אַמְּתָא מַלְיָא וּמֵישָׁט שְׁלֹשִׁים רִיס וְתוּ לָא וְהָתַנְיָא וּבַיִּשּׁוּב אֲפִילּוּ מֵאָה מִיל לֹא יִפְרוֹס רַב יוֹסֵף אָמַר בְּיִשּׁוּב כְּרָמִים Abaye said: Doves do fly great distances, which is why one must avoid catching others’ birds by keeping traps thirty ris away from settled areas. But as they eat along their way, their stomachs are filled after a distance of fifty cubits, at which point they will do no more damage to seeds. The Gemara asks: And do they fly only thirty ris and no more? But isn’t it taught in a baraita: And in a settled area, one may not spread out a trap even if the area under his control extends as far as one hundred mil in each direction? Rav Yosef says: That baraita is referring to a settled area of vineyards, i.e., a contiguous region of vineyards and gardens. In that case the doves pass from place to place even over a great distance.
רָבָא אָמַר בְּיִשּׁוּב שׁוֹבָכִין וְתִיפּוֹק לֵיהּ מִשּׁוּם שׁוֹבָכִין גּוּפַיְיהוּ אִיבָּעֵית אֵימָא דִּידֵיהּ וְאִיבָּעֵית אֵימָא דְּגוֹי וְאִיבָּעֵית אֵימָא דְּהֶפְקֵר: Rava said: The baraita is referring to a settled area of dovecotes, i.e., where many dovecotes are distributed. The Gemara asks: And according to Rava, let the tanna derive that one may not establish a new dovecote there due to the other dovecotes themselves, as he will trap doves belonging to others. The Gemara answers: If you wish, say that this is referring to his own dovecotes. And if you wish, say it is referring to the dovecotes of a gentile, whose property one is not obligated to protect from harm. And if you wish, say it is referring to ownerless dovecotes.
רַבִּי יְהוּדָה אוֹמֵר בֵּית אַרְבַּעַת כּוֹרִין וְכוּ׳ אָמַר רַב פָּפָּא וְאִיתֵּימָא רַב זְבִיד זֹאת אוֹמֶרֶת טוֹעֲנִין לְלוֹקֵחַ וְטוֹעֲנִין לְיוֹרֵשׁ § Rabbi Yehuda says that one must have surrounding the dovecote the area required for sowing four kor of seed on each side, which is as far as a dove flies in a single flight. And if one bought the dovecote with the land, he has the acquired privilege of its use. Rav Pappa said, and some say it was Rav Zevid: That is to say that a court issues a claim on behalf of a buyer, and issues a claim on behalf of an heir. This is referring to the halakha of taking possession. If one has been physically in possession of an item for a period of time, generally three years, this serves as proof that he is in fact the legal owner. This possession must be accompanied by a claim of how one acquired the item; he cannot simply state that no one protested his possessing the item for three years. Rav Pappa is saying that the court will lodge a claim on behalf of a buyer or heir that they acquired the item from someone who was the owner, just as here the court assumes that the previous owner of the dovecote came to an agreement with his neighbors that he may use it.
יוֹרֵשׁ תְּנֵינָא הַבָּא מִשּׁוּם יְרוּשָּׁה אֵינוֹ צָרִיךְ טַעֲנָה לוֹקֵחַ אִיצְטְרִיכָא לֵיהּ לוֹקֵחַ נָמֵי תְּנֵינָא לָקַח חָצֵר וּבָהּ זִיזִין וּגְזוּזְטְרָאוֹת הֲרֵי זֶה בְּחֶזְקָתָהּ The Gemara asks: Why is it necessary for Rav Pappa to state this halakha? We already learn this with regard to an heir (41a): In the case of land that comes as an inheritance, one is not required to make a claim as to how the land came into his benefactor’s possession when one’s ownership of the land is challenged. The Gemara answers: It was necessary for him to state this halakha with regard to a buyer. The Gemara asks: With regard to a buyer as well, we learn this in a mishna (60a): If one bought a courtyard in which there are projections and balconies [ugzuztraot] extending into the public domain, this courtyard retains its presumptive status, i.e., the owner has the acquired privilege of their use, and the court does not demand their removal.
צְרִיכָא דְּאִי אַשְׁמְעִינַן הָתָם גַּבֵּי רְשׁוּת הָרַבִּים דְּאֵימוֹר כּוֹנֵס לְתוֹךְ שֶׁלּוֹ הוּא אִי נָמֵי אַחוֹלֵי אַחוּל בְּנֵי רְשׁוּת הָרַבִּים גַּבֵּיהּ אֲבָל הָכָא לָא The Gemara answers: It was necessary for the tanna of the mishna to state this halakha in both cases, as, if he had taught us this only there, in that mishna, one might have said that it applies specifically with regard to a protrusion or a balcony that extends into the public domain, as one can say that perhaps it is a case where the seller had drawn back into his own land before adding the projections and balconies, and they in fact do not extend into the public thoroughfare. Alternatively, perhaps the public waived their right to him and allowed him to place them over the common area, as otherwise they would have protested. But here, where he causes damage to private individuals, one might have thought that the buyer does not have a privilege of use, and therefore the mishna teaches us otherwise.
וְאִי אַשְׁמְעִינַן הָכָא דְּכֵיוָן דְּיָחִיד הוּא אֵימָא פַּיּוֹסֵי פַּיְּיסֵיהּ אִי נָמֵי אַחוֹלֵי אַחֵיל גַּבֵּיהּ אֲבָל רַבִּים מַאן פַּיֵּיס וּמַאן שָׁבֵיק אֵימָא לָא צְרִיכָא: And if he had taught this only in the mishna here, one might say that since the party potentially suffering damage is an individual, the owner of the dovecote appeased his neighbor by paying him to permit him to construct it. Alternatively, the neighbor might have waived his right to him. But in a case where damage is caused to the public, one might argue: Whom did he appease, and who yielded to him? Consequently, one might say that the purchaser does not retain the privilege of use. Therefore, it is necessary for the tanna to state the halakha in this case as well.
הֲרֵי הוּא בְּחֶזְקָתוֹ וְהָא אָמַר רַב נַחְמָן אָמַר רַבָּה בַּר אֲבוּהּ אֵין חֲזָקָה לִנְזָקִין רַב מָרִי אָמַר בְּקוּטְרָא רַב זְבִיד אָמַר בְּבֵית הַכִּסֵּא: § The mishna teaches that if one bought the dovecote with the land, he has the acquired privilege of use. The Gemara asks: But doesn’t Rav Naḥman say that Rabba bar Avuh says: There is no acquired privilege of use for cases of damage? Why should he retain his acquired privilege of use when his doves cause damage? Rav Mari said: Rav Naḥman’s statement is referring specifically to smoke, which causes serious damage, and that is why it overrides an acquired privilege. Rav Zevid said: It is referring to a bathroom, whose odor is particularly strong.