Shabbat Parashat Vaetchanan 5773

P'ninat Mishpat: Use of a Cemetery for Sewage Pipes

One of the responsibilities of the official governmental batei din is to oversee religious non-profit organizations, including Jewish cemeteries in Israel. The following overview of a p’sak din (927928/1) is an example of such a case.

In this case, there was actually no plaintiff. Rather, a group of “hot-heads” threatened authorities not to place a sewage pipe through the old cemetery in Tzfat, and authorities asked beit din for instructions on whether and how the plan could be carried out. They hoped that this would give them firmer footing, although their opponents had ignored a previous ruling.

For hundreds of years there has been a drainage problem in Tzfat, since the cemetery is spread across the bottom of the old part of the city. To remedy the situation, the authorities made a drainage pool on top of the cemetery and used a pumping system to send the water elsewhere. However, there was still seepage into the cemetery, and whenever leaks and malfunctions developed in the pump, sewage went into the cemetery. Thus, the present system causes more problems for the cemetery than it solved.

 The mishna in Massechet Semachot (ch. 14) states: “One cannot have an irrigation ditch pass through a cemetery.” Similarly a baraita in Megilla (29a) stipulates: “In a cemetery, one may not act with lightheadedness, may not graze animals, and cannot have an irrigation ditch go through it … due to the honor of the dead.” Lechem Yehuda (Avel 14:13) explains that the above law is not an absolute prohibition to benefit from the cemetery but an obligation not to disgrace the dead. Regarding the irrigation ditch, R. Yonatan MiLonil writes that the concern is that there will be a flood that washes the bones away. Based on this, beit din decided that when there is not a serious danger of leaking, there is no prohibition to have pipes go through the cemetery. The Rambam (Avel 14:13) does talk about a prohibition of benefitting from the cemetery, even beyond the domain of a particular grave. On the other hand, the Kesef Mishneh (Tumat Met 8:5) claims that the Rambam used the language “forbidden in benefit” as a borrowed term, only meaning to prohibit disgraceful behavior.

There is a teshuva of the Zera Avraham (Yoreh Deah 21) that points out that the practice in Tzfat had long been to allow drainage pipes [they did not have sewage pipes in those days] to pass through the cemetery. He goes as far as to say that bodies can even be exhumed to make room for a pipe, so that the graves not be exposed to the “pain of the water and the filth.” Thus, the practice in Tzfat was apparently like those who do not accept an absolute prohibition.

This practice should be continued, although the pipes should be above ground level and should not pass directly over any graves. If opponents of this idea threaten to physically obstruct such actions, they should be warned, and if that does not help, the police can be contacted.

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