Mr. Simon had made a bonfire on Lag Ba’Omer in his backyard for many years. As Lag Ba’Omer drew near again, Mr. Simon piled wood in his yard for this year’s bonfire.
His neighbor, Mr. Wasser, who had moved in a year ago, approached Mr. Simon
“I remember that you made a bonfire on Lag Ba’Omer last year,” Mr. Wasser said. “It seems that you’re planning on making a bonfire again.”
“Of course I’m planning to!” said Mr. Simon. “I’ve made one for years. Many people from the neighborhood join. We have songs and inspirational divrei Torah – and also some food. You’re welcome to join!”
“That wasn’t exactly where I was heading…,” said Mr. Wasser.
“What do you mean?” asked Mr. Simon.
“Last year, when you made the bonfire, the smoke wafted heavily toward us,” said Mr. Wasser. “I found it quite intolerable!”
“I’m sorry about that,” said Mr. Simon. “It’s a yearly event, though. If the smoke bothers you, please shut your windows for the night.”
“Shutting the windows helped somewhat, but not enough,” said Mr. Wasser. “I understand that you want to honor Rabi Shimon bar Yochai – but it should not be at other people’s expense! I was hoping that you would move the bonfire somewhere else! ”
“Where would you like me to move it?!” asked Mr. Simon. “I’ve been making the bonfire in this spot year after year! I don’t think that it’s any fairer to the other neighbors to move the bonfire near them!”
“I believe that it’s in my rights to protest bothersome smoke,” said Mr. Wasser, “even if you’ve been doing this for years. If need be, I’ll take this up with beis din!”
“I don’t see how you can protest now,” said Mr. Simon.
The two came before Rabbi Dayan and asked:
“Can Mr. Wasser protest the bonfire because of the smoke?”
“The Gemara (B.B. 23a) teaches that there is no chazaka – established right – for smoke, because it is considered intolerable to most people,” replied Rabbi Dayan. “Therefore, even if someone has been producing smoke for years, the neighbor can still protest” (C.M. 155:36).
“However, Tosafos (s.v. Bekutra) and other Rishonim qualify that this applies only to smoke such as from a furnace, which is consistent, but there is a chazaka for occasional smoke” (C.M. 155:37).
“Regarding occasional smoke that is not yet established, the Rishonim dispute whether the neighbor can protest. Tur cites from Rema that the neighbor can protest and prevent initially even occasional smoke; Shulchan Aruch rules accordingly.
“However, Trumas Hadeshen (#137) rules that the neighbor cannot protest occasional smoke, even if it is not yet established; Rema adopts this position. Some explain that although neighbors can protest other kinds of occasional damage, smoke does not entail actual monetary damage, only unpleasantness” (Mishkan Shalom 2:36:, citing Even HaMishpat 5752, 24:8).
“Shach (155:19) and many Sephardic Acharonim reject the position of the Trumas Hadeshen and Rema, while other Ashkenzanic Acharonim accept the Rema’s ruling” (Shemesh Tzedakah, C.M. #2; Maharsham 1:17).
“Thus, in this case, as Mr. Simon has been making a bonfire for years and has a chazaka, Mr. Wasser cannot protest now, since the smoke is only occasional. Without a chazaka, if Mr. Simon were first coming to make a bonfire, the issue would be subject to the dispute between the Shulchan Aruch and Rema. Sephardim would obviously follow the Shulchan Aruch, and Mr. Wasser could protest, whereas among Ashkenazim the issue is questionable.
“Even so,” concluded Rabbi Dayan, “some suggest that the Rema was only lenient when the person makes the fire in his own property for living usage, but not in public property, even if for purposes of a minhag” (Pischei Choshen, Nezikin 13:19).
Verdict: Neighbors cannot protest occasional smoke that is already established. Shulchan Aruch, followed by Shach and Sephardic Acharonim, rules that they can protest before it is established, whereas Rema and other Ashkenazic Acharonim rule that they cannot.