Responsa for Bava Batra 34:7
ורבא אמר אינו סומך ואפילו לרבי יוסי דאמר זה חופר בתוך שלו וזה נוטע בתוך שלו הני מילי התם דבעידנא דקא נטע ליתנהו לשרשיו דמזקי לה לבור אבל הכא אמר ליה כל מרא ומרא דקא מחיית קא מרפית לה לארעאי
for he only rules thus because at the time when the former plants there are as yet no roots which could damage the pit, but in this case the owner of the other field can say to the man who wants to dig the pit, 'Every stroke with the spade which you make injures my ground.'
Teshuvot Maharam
Q. B constructed a stone duct near A's wooden house. A objected and B made a written promise to compensate him for any damage the duct might cause to his house. A now demands that B remove his duct because it occasionally permits water and sewage to flow into his house, and he objects to being forced to sue for damages every time it occurs. B claims that water flows into A's house only when the duct breaks. He promises to keep the duct in good condition, but refuses to remove it.
A. B must remove his duct from A's wall for a distance of 3 tefahim (hand-breadths). If the water should, nevertheless, continue to flow into A's house, it is for A to protect his wall by whatever means he sees fit, but he can demand nothing of B.
SOURCES: Cr. 3, 4; Pr. 92; L. 357; Mord. B. B. 520.
A. B must remove his duct from A's wall for a distance of 3 tefahim (hand-breadths). If the water should, nevertheless, continue to flow into A's house, it is for A to protect his wall by whatever means he sees fit, but he can demand nothing of B.
SOURCES: Cr. 3, 4; Pr. 92; L. 357; Mord. B. B. 520.
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