Commentary for Bava Metzia 233:15

ר' יהודה אומר אף זה דר בתוך של חבירו צריך להעלות לו שכר אלא בעל העלייה בונה את הבית ואת העלייה מקרה את העליונה ויושב בבית עד שיתן לו את יציאותיו:

or level therewith. If the pit was there first, he must cut down [the tree], but [the pit owner] must compensate him. If the tree was there first, he need not cut it down. If it is doubtful which came first, he need not cut it down. R. Jose said: Even if the pit was there prior to the tree, he need not cut it down, for the one digs in his own, and the other plants in his own.<span class="x" onmousemove="('comment',' V. B.B. 25b and supra p. 630. ');">¹³</span> This proves that in R. Jose's opinion the injured party must remove himself; whilst the Rabbis hold that he who inflicts the injury must remove! — But if it can be said that they [R. Hiyya b. Abba and R. Elai] dispute on the same lines as R. Jose and the Rabbis, it is on their opinions as displayed there. Then wherein do R. Jose and the Rabbis, of the present Mishnah, differ? — In the strengthening of the ceiling. The Rabbis maintain: the plaster strengthens the ceiling, and that is the duty of the lower dweller. Whilst R. Jose maintains that the plaster is for the purpose of levelling the depressions,<span class="x" onmousemove="('comment',' I.e., the ceiling of wood beams forms an unequal surface for the man above to walk upon, and therefore it is overlaid by a dressing of concrete chippings, which forms a smooth and level pavement. ');">¹⁴</span> and that must be done by the upper tenant. But that is not so. For R. Ashi said: When I was at R. Kahana's college, we said, R. Jose agrees in the case of his arrows!<span class="x" onmousemove="('comment',' Though R. Jose holds that the injured person has to remove, that is only where the injury does not come immediately and directly, as in the case of the pit and the tree. When the tree is planted, no damage at all is done; only later, when it is grown and its roots have spread, is injury caused. But when one washes his hands and the water falls through the crevices in the flooring upon the dweller below, the injury proceeds directly from above, as when a man shoots arrows, in which case R. Jose admits that the man who causes the injury must remove himself. How then can R. Hiyya b. Jose rule that the dweller below must repair the ceiling? ');">¹⁵</span> — It means that the water was interrupted, and only subsequently fell down.<span class="x" onmousemove="('comment',' The place for washing was not directly over the broken portion but in some other part of the room, whence it trickled to the cracks, and only then dropped down. That is not direct and immediate injury. ');">¹⁶</span> <b><i>MISHNAH</i></b>. IF A HOUSE AND AN UPPER STOREY, BELONGING TO TWO,<span class="x" onmousemove="('comment',' v. p. 660, n. 1. ');">¹⁷</span> COLLAPSED, AND THE OWNER OF THE UPPER STOREY PROPOSED TO THE HOUSE OWNER TO REBUILD, WHILST THE LATTER DECLINED, THE FORMER MAY BUILD THE HOUSE [i.e., THE LOWER STOREY] AND DWELL THEREIN, UNTIL HE [THE LATTER] REIMBURSES HIM FOR HIS EXPENDITURE. R. JUDAH SAID: THEN THIS MAN INDEED SHALL HAVE DWELT IN HIS NEIGHBOUR'S HOUSE, AND SO MUST PAY HIM RENT.<span class="x" onmousemove="('comment',' When the house-owner reimburses him, the house becomes retrospectively his. Now, in R. Judah's opinion, if A benefits from an article belonging to B, though B does not lose thereby, he must pay him. So here too, the owner of the upper storey has dwelt in the other's house, and though the latter lost nothing thereby, since had not the former built it he would have had no house in any case, the owner of the upper storey must nevertheless pay rent. ');">¹⁸</span> BUT THE OWNER OF THE UPPER STOREY MUST BUILD UP THE HOUSE AND THE UPPER STOREY AND ROOF IT OVER, AND THEN DWELL IN THE HOUSE UNTIL HE IS REIMBURSED.<span class="x" onmousemove="('comment',' In this case, the house-owner sustains no loss, as explained in the previous note, but the owner of the upper storey does not benefit either, since he could live in his own garret; here R. Judah admits that no rent is payable. So Rashi. Tosaf., however, points out that he benefits by not having to climb stairs. Therefore, on a slightly different reading, Tosaf. translates: and then dwell in his upper storey, not permitting the other to enter the house until he is reimbursed. ');">¹⁹</span>

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