بَابُ إِحْيَاءِ الْمَوَاتِ وَالشَّرْبِReviving Dead Land and Water Rights

¹ The statement: He is most entitled, meaning that land becomes his property. However, Abu Hanifah (may Allah be pleased with him) stipulated the leader’s permission, while his two companions, Shafi’i, and Ahmad disagreed, citing the generality of the narration. The narration: A man only has what his leader willingly gives him indicates the condition of permission, so the general is interpreted by it, as they relate to the same incident. Abu Hanifah also cited: There is no protected land except for Allah and His Messenger in the two Sahihs, where “protected land” refers to land reserved. This indicates that the authority over lands belongs to the leaders, not others. This is supported by what Ahmad narrated from Samurah ibn Jundub and At-Tahawi from Muhammad ibn Ubaydullah ibn Sa’id Abu Awn Ath-Thaqafi Al-A’war Al-Kufi, a Tabi’i, who said: A man from the people of Basra, called Abu Abdullah, went to Umar (may Allah be pleased with him) and said: “In the land of Basra, there is land that does not harm any Muslim and is not taxable land. If you wish, grant it to me, and I will make it into reeds and olives.” Umar wrote to Abu Musa: If it is protected land, grant it to him. Do you not see that Umar did not allow him to take it or own it except by the caliph’s grant? If it were otherwise, he would have said: “Why do you need my grant? Protect it, cultivate it, and own it.” This indicates that revival, according to Umar (may Allah be pleased with him), is what the leader permits for the one who undertakes it and grants ownership. It is also argued with the narration: The land belongs to Allah and His Messenger, then to you after me. Whoever revives something from the dead land, its title is his, narrated by Abu Yusuf in Kitab Al-Kharaj. Since it is attributed to Allah and His Messenger, it cannot be exclusively owned except with the leader’s permission. Summarized from Al-Marqah, Umdat Al-Qari, and Al-Binayah. It is stated in Radd Al-Muhtar: The opinion of the Imam is the chosen one, which is why it is prioritized in Al-Khaniyyah and Al-Multaqa as usual, and At-Tahawi adopted it, and it is in the texts. In Ad-Durr Al-Mukhtar: This applies to a Muslim. For a non-Muslim under protection, permission is unanimously required, and for a temporary resident, he cannot own it at all by consensus. ² The statement: There is no protected land except for Allah and His Messenger, meaning no one can reserve land for himself to graze his livestock to the exclusion of others, as preventing grazing is prohibited. It is only for Allah, His Messenger, and those caliphs who needed it for the Muslims’ benefit, as Abu Bakr, Umar, and Uthman did when necessary. Summarized from Umdat Al-Qari. In Nayl Al-Awtar: There is no protected land except for Allah and His Messenger. Shafi’i said: The narration has two possible meanings. First: No one can protect land for the Muslims except what the Prophet (ﷺ) protected. Second: It refers to what he protected, so it is exclusive to the caliph who takes the Prophet’s place. On the first, no governor after him can protect land. On the second, it is exclusive to the caliph. Al-Hafiz said: Shafi’i’s companions derived two opinions from this, with the second being more likely among them, though the first is closer to the apparent wording. Some Shafi’is included regional governors with the caliph. Al-Hafiz said: Permissibility is general if it does not harm all Muslims. The Imam, even if equated with the Prophet (ﷺ), cannot protect land for himself, as per Malik, Shafi’is, and Hanafis. They said: He protects it for the Muslims’ horses and livestock, especially for the weak among them, as Umar (may Allah be pleased with him) did.

¹ The statement: Then it is for you from me, I say: This indicates the condition of the leader’s permission for reviving dead land. ² The statement: Granted Abdullah ibn Mas’ud houses in Madinah, etc., if a Muslim or non-Muslim under protection revives barren land that has no owner, far from the village such that if someone stood at the edge of the inhabited area and shouted, his voice would not be heard, he owns it according to Abu Yusuf, which is the chosen opinion, as stated in Al-Mukhtar and others. Muhammad considered the lack of benefit to the village’s residents, so it is not permissible to revive land they benefit from, even if far, but it is permissible to revive land they do not benefit from, even if near the inhabited area. This was the view of the three. The ruling depends on distance according to Abu Yusuf and the cessation of benefit according to Muhammad, and this is the fatwa, as in Zakat Al-Kubra and the apparent narration, as in Sharh At-Tahawi and Al-Burjandi from Al-Mansuriyyah from Qadi Khan, that the fatwa is on Muhammad’s opinion. This narration supports it and indicates granting dead land within inhabited areas. Summarized from Ad-Durr Al-Mukhtar, Al-Hidayah, and Al-Ayni.

¹ The statement: It is his, meaning he owns it. The marginal note says: The apparent narration indicates that surrounding is sufficient for ownership, which is Ahmad’s more well-known opinion, provided the wall is strong as per custom. Most scholars hold that ownership is by revival, and enclosing is not revival. The narration is interpreted as revival for residence. Al-Qari said: An-Nawawi said: If he intends an enclosure for livestock or a yard to dry fruits or gather firewood and grass, enclosing is required, and setting up markers or stones without building is insufficient. I say: In Al-Bada’i: If he encloses dead land, he does not own it by consensus, as dead land is owned by revival. Enclosing is merely placing stones or drawing a line around it to prevent others from claiming it, which is not revival, so he does not own it. However, he is more entitled to it than others, so no one can displace him, as his prior claim is a basis for preference. The Prophet (ﷺ) said: The resting place belongs to the one who arrives first. As stated in Bazl Al-Majhood. In Rahmat Al-Ummah: How is land owned, and what constitutes its revival? Abu Hanifah and Ahmad said: By enclosing it and providing water for it. For a house, by surrounding it, even without roofing. Malik said: By what is customarily considered revival, such as building, planting, or digging a well. Shafi’i said: For agriculture, by cultivating and extracting water; for residence, by dividing it into houses and roofing them. I say: In Al-Hidayah: Enclosing is not revival to own it, as revival is cultivation, and enclosing is for marking, named so because they marked it with stones or to prevent others from reviving it. Thus, it remains unowned as it was, which is the correct view.

¹ The statement: Uproot his palm trees, he ordered the Ansari to uproot the palm trees because it was clear that Samurah was harming him, as it was known that they were planted on borrowed land. As stated in Al-Marqah. In Al-Hidayah: If someone borrows land to build or plant, it is permissible, and the lender can retract and require the removal of the building or plants.

¹ The statement: He granted it, the narrations of this chapter indicate that it is permissible for the Prophet (ﷺ) and the leaders after him to grant minerals. Granting means designating some dead lands for specific individuals, whether minerals or land, making them more entitled to it than others, provided it is from dead lands not exclusively owned. This is agreed upon. As stated in Nayl Al-Awtar. ² The statement: He revoked it from him, hence they said: The leader cannot grant what the Muslims cannot do without, such as salt or wells from which people draw water. As stated in Takmilah Al-Bahr Ar-Ra’iq. In Al-Marqah: It is understood that granting minerals is permissible only if they are subsurface, requiring effort and expense, such as salt, oil, turquoise, sulfur, and the like. What is surface-level and obtained without labor or effort cannot be granted, as people share in it, like grass and valley waters. If the judge rules and it becomes clear that the truth is otherwise, his ruling is overturned, and he retracts it. ³ The statement: What the camels’ hooves cannot reach, I say: This indicates that granting and revival are restricted to what is not tied to public interests. The narration indicates that revival is not permissible except with the leader’s permission, otherwise it would not have been revoked from him. Understand. As stated in Ath-Thawb Al-Hali.

¹ The statement: Granted Zubair, etc., they differed on granting. The Shafi’i and Maliki view, as An-Nawawi said: The leader may grant land owned by the public treasury that no one owns except by the leader’s grant. Sometimes he grants its title, and the person owns it for a beneficial purpose, so it is permissible to own it like owning coins or other items given. Sometimes he grants its benefit, so the person is entitled to benefit from it for the duration of the grant. As for dead land, anyone may revive it without needing the leader’s permission. The Hanafi view on granting, as stated in Al-Bada’i: Lands are of two types: owned and unowned permissible land. Owned land is of two types: inhabited and ruined. Permissible land is of two types: part of the town’s utilities, such as firewood or grazing for livestock, and what is not part of its utilities, called dead land. Owned inhabited land cannot be disposed of without the owner’s permission, as the sanctity of ownership prevents it. Dead land outside the town, not owned or exclusively entitled to anyone, is not dead land if within the town. Likewise, what is outside the town but part of its utilities, such as firewood or grazing, is not dead land, so the leader cannot grant it. The leader can grant dead land for the Muslims’ benefit, as it pertains to developing the land. Disposal of what relates to the Muslims’ interests, such as digging major rivers or repairing their bridges, belongs to the leader. If the leader grants dead land to someone who leaves it uncultivated, it is not interfered with for three years. After three years, it reverts to dead land, and he can grant it to another, as per the statement: There is no right for the encloser after three years. The granting to Zubair is evidence for Abu Hanifah (may Allah be pleased with him), as this granting is either from the fifth that is his share or from dead land that no one owns, owned by revival. As stated in Al-Marqah. This is supported by what is in Bukhari’s narration afterward. ² The statement: Bukhari narrated, etc., it specifies the mentioned land as being from what Allah bestowed on His Messenger from the wealth of Banu Nadir, so he granted Zubair from it. This resolves Al-Khattabi’s confusion, where he said: I do not know how the Prophet (ﷺ) granted land in Madinah when its people embraced Islam willingly, unless it refers to what the Ansar gave to the Prophet (ﷺ) from their land that water did not reach, so he granted it to whomever he wished. As stated in Umdat Al-Qari.

¹ The statement: Give it to him from where the whip reached, Al-Mudhhar said: The granting to Zubair is interpreted as dead land or the fifth that is his share, so it is evidence for Abu Hanifah (may Allah be pleased with him). The general narrations are interpreted by it. Summarized from Al-Marqah.

¹ The statement: Do not withhold excess water to withhold excess grass, they differed on whether this prohibition is for unlawfulness or disapproval. In At-Tawdih: The prohibition is for unlawfulness according to Malik and Al-Awza’i, and Al-Khattabi and Ibn At-Tin narrated it from Shafi’i. Some preferred it and interpreted it as recommended. The correct view among us is that it is obligatory to provide it for livestock, not for crops, as stated by Al-Ayni. He said: This is also the Hanafi view, specific to livestock. In Al-Hidayah: It is not permissible to sell or lease pastures, meaning grass, as per the statement: People are partners in three: fire, grass, and water. At-Tahawi and others said: This means if someone lights a fire, anyone can warm themselves by it or dry their clothes. He cannot take embers without permission. This is the meaning of partnership in fire. In water, it means drinking, watering animals, and drawing from owned wells, reservoirs, and rivers. In grass, it means harvesting it, even in owned land. This applies if the water is not contained in vessels or the grass is not cut. If they are contained, selling them is permissible, as containment makes them owned. This also applies if they grew naturally. If the owner watered and prepared the land for growth, and it grew, he can sell it, as he owns it, as in Adh-Dhakhirah, Al-Muhit, and An-Nawazil. This is the chosen view of As-Sadr Ash-Shahid and the majority. Al-Quduri prohibited its sale. In Fath Al-Qadir: Al-Quduri said: It is not permissible to sell grass in its land, even if he brought water to his land and incurred expenses, as the partnership in it is established naturally, and partnership ends only by containment. Bringing water to his land is not containment, so the grass remains shared, and selling it is not permissible. The majority hold the first view. Al-Halwani narrated from Muhammad (may Allah be pleased with him) that grass is what has no stem, and what has a stem is not grass. Al-Fadli said: It is also grass. In Al-Mughrib: It is everything grazed by animals. The details were covered in the chapter on prohibited sales.

¹ The statement: In water, grass, and fire, water refers to that in rivers and wells. If taken and placed in a vessel, it is contained, so selling it is permissible. Grass refers to what grows in unowned land or in owned land without the owner’s cultivation. If the owner cultivates it by watering and preparing the land, the narrations differ. In Adh-Dhakhirah and Al-Muhit: If he sells grass in his land that he cultivated by watering for the sake of the grass, and it grew with his effort, it is permissible, as he owns it. No one can take it without his permission. If it grew naturally, it is not permissible, as it is not owned by him but is permissible by default, as anyone can take it. In Al-Quduri: Selling grass in its land is not permissible, even if he brought water to his land and incurred expenses, as the partnership in grass is established naturally, and partnership ends only by containment. Bringing water to his land is not containment for the grass, so it remains shared, and selling it is not permissible. Al-Halwani narrated from Muhammad (may Allah be pleased with him) that grass is what has no stem, and what stands on a stem is not grass. Al-Fadli said: It is also grass. The partnership in fire means benefiting from its light, warming by it, and drying clothes with it. Taking embers is not allowed without the owner’s permission. As stated in Al-Kifayah.

¹ The statement: It is his, indicates that water becomes owned by containment.

¹ The statement: Water, O Zubair, then hold the water until it reaches the wall, then send the water to your neighbor, means that no one can block the river from the lower land, but he takes his share, as blocking introduces something new in the middle of the river, and the river’s title is shared among them. No one can do that without the partners’ permission. If they agree that the upper land blocks the river to take his share and they settle that each blocks it in turn, it is permissible, as the impediment is their right, and it is removed by their agreement. If they can block it with a board or gate, he cannot block it with mud or dirt, as that harms the partners. If the water in the river is such that it does not flow to each one’s land except by blocking, the upper land starts until it is irrigated, then the next, and the upper land cannot prevent it from the lower land. As stated in Takmilah Al-Bahr Ar-Ra’iq.

¹ The statement: Held until it reaches the ankles, etc., Shafi’i stated in Al-Minhaj: Permissible waters from valleys, springs, streams, and rains are equal for people. If people want to irrigate their land from it and it is insufficient, the upper land irrigates first, and each holds the water until it reaches the ankles. As stated in Al-Musawwa. In At-Ta’liq Al-Mumajjad: According to the Hanafis, there is no specific limit set by Sharia, but the matter is left to the partners’ opinions. This is the summary of what Muhammad (may Allah be pleased with him) said.