Q. I operate certain machinery in my property, but my neighbor claims that it causes him damage. Can he restrain me from operating it?
A: Shulchan Aruch (C.M. 153-155) details the laws of neighbors, distancing of potential damage and what constitutes a chazakah – presumed or established right, based on the Gemara and Rishonim.
However, Aruch Hashulchan (153:4) writes that if there is a common practice in the city regarding these chazakos, we follow the common practice. Therefore, the Dayan must also know the common practice regarding distancing of potential damage between neighbors.
Nonetheless, Aruch Hashulchan distinguishes between chazakos based on presumed mechilah, where we follow the common practice, and chazakos that require an accompanying claim of purchased rights, where the common practice is not applicable, since the litigant claims that he purchased these specific rights (see Pis’chei Choshen, Nezikin 15:1[2]).
Nowadays, many of the common practices between neighbors are based on civil laws that are followed, which are binding as minhag hamedinah (ibid.).
