P'ninat Mishpat: Agricultural Water Rights – part II | Beit Din Eretz Hemda - Gazit | Beit Midrash

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Case: The plaintiff (=pl) and the defendant (=def) have agricultural fields near a yishuv, and there is a limited water supply. In a meeting of most of the field owners (pl was invited but did not attend), they made a schedule of watering times per region. Pl often has his pipes open at times that contradict the schedule, and often, def shuts them after informing pl. Pl rejects the intention and authority of the field owners at the meeting to make or enforce rules on those who do not agree and claims the meeting was just a step to create good will. Pl argues that since his pipes and water are his own, def has no right to close them, as a member of the local council wrote to pl. Pl demands compensation from def for the damage the lack of water caused his crops. Pl also points out that at some point, def ignored the "rules," so that even if the rules were once binding, def cannot invoke them. Def responds that his use was minor, for a critical need, and with the blessing of the local council.

Ruling: [We saw last time that the field owners’ decisions were binding on pl.]
Propriety of def’s closing pipe: It is clear from communications and testimony, that def and others were not given authority to close pipes, and some who closed them were criticized. However, the criticism was when the one closing did not inform the violator that he would be doing so, whereas here, def regularly informed pl. (For a time, pl accepted def’s right to do so, but pl claims that def tricked him, and he only later found out that def was not given authority.) Since there is no practical mechanism for def to get pl to close pipes, it is permitted for def to enforce his rights, especially because it is in a manner that does not cause particular damage (see Shulchan Aruch, Choshen Mishpat 4:1 and commentaries).
Did def also take water against the agreement? Def argued that he had permission from the council to take in a way that included going beyond his original time slot due to great need. When asked why he did not inform the others, he gave six reasons at different times, in a very suspicious manner. Although one can change from one winning claim to another (Shulchan Aruch, CM 80:1), when a reason is written to beit din, he no longer can (ibid. 2). Notably one of the main explanations, that the important thing is that def did not get more than was allotted, is to be rejected out of hand. The whole problem is that there is a scarcity of water, so that everyone is getting less than desirable, and therefore, def should not get a higher percentage of the ideal than others, at the expense of others, and not even inform them. Thus, def did not follow the rules properly himself.
Status of the agreement after it was violated – Although def broke the agreement, the agreement remained intact because of the rights of the many other field owners. Therefore, the fact that it was enforced was not a "damage" to pl. On the other hand, the fact that def hurt pl by taking more than his share requires def to pay for that, which we estimate (without an ability to be exact) at 3,500 NIS.