Wells (fiqh of wells)

A well (plural: wells) is a subject of rulings concerning its water in jurisprudence. The Kuwaiti Encyclopedia of Fiqh sets out these rulings under the headings of the purity of well water, its protected zone when reviving unclaimed land, the rights of people in its water, and the threshold of abundance in it. ¹

Linguistically, "well" comes from a root meaning to dig; its plural is wells. The Encyclopedia cites Ibn Abidin that a well is one with a source that wells up from below, and notes that common usage also applies the word to a cistern that gathers rainwater, in the sense of a reservoir. ¹

The basic position is that well water is pure in itself and purifies other things, and that it may be used for purification by agreement, unless it becomes impure or one of its attributes changes; the detail on change belongs to the rules on water. The Encyclopedia notes that some jurists disliked performing purification with well water in land under divine wrath, and that some scholars stated that certain wells are distinguished by merit and built rulings on that. ¹

The Encyclopedia says that making water gush forth and benefiting from it for crops, with the intention of possession, completes the reviving of land according to most jurists: the Malikis, Shafi'is and Hanbalis, in general. The Malikis require a declared intention if the well is for livestock; the Shafi'is, in the sound view, require planting if the well serves an orchard; and some require building its walls if it is in soft ground. The Hanafis hold that reviving is not completed by making water gush forth alone, but by digging and irrigating the land. ¹

There is no disagreement that a well in unclaimed land has a protected zone, needed for digging and for use, so its owner may prevent anyone from digging in it. Jurists differ on its extent. The Hanafis and Hanbalis set it in cubits according to the type of well, relying on reports; the Malikis and Shafi'is set it as an area that does not restrict those coming to drink, the passage of camels, or the resting places of livestock when they come to water, and that does not harm the water of the well. The Encyclopedia refers the detail to the entry on reviving unclaimed land. ^{1 2}

The footnote notes that the report attributed to the Prophet ﷺ about making a protected zone for a well has several versions. In one chain it rests on Isma'il ibn Muslim al-Makki; Abu Zur'a called it weak, and Ahmad and others called the narrator unreliable. ²

Jurists base this question on the report that "people share three things: water, pasture and fire", together with the report forbidding the sale of surplus water. The exception in the second report shows that "water" means water that has not been secured in a container. The footnote notes that the chain of the sharing report is weak in some versions, that Ibn al-Sakan judged it sound, and that al-Tirmidhi rated the report on selling water as good, and Muslim transmitted it with the wording "surplus water". ²

On this basis, the water of public wells is permissible and no one owns it except by drawing it. The water of private wells has left the general permission, though a sense of shared entitlement remains for drinking, meaning the drinking needs of people and animals but not the irrigation of crops. ²

Jurists take two positions on the ownership of the water of a private well:

• First position: people have a right in well water if no water is available nearby on land that belongs to no one. This is one view of the Hanafis, the position of the Hanbalis, and the apparent position of the Shafi'is when the well was dug to benefit from the water or with the intention of possession. It is also a view, though not the better-known one, among the Malikis, except for wells of houses and walled orchards. The Encyclopedia gives as reasons that a well is not treated as something secured in a container, that the right to drink must be preserved out of necessity, and that a well follows the land rather than the water. ³
• Second position: no one has a right in the well, and it belongs solely to its owner. This is one view of the Hanafis, a report from Ahmad, the position of the Malikis for wells of houses and walled orchards and their better-known view for other private wells, and the sounder view of the Shafi'is when the owner owns the spring or dug the well with the intention of possession. On this view the owner may prevent others from drinking and may sell the water, since the water is treated as secured, though the prohibition is limited to cases where someone fears for his life, which is a case of necessity. ³

The Encyclopedia does not weigh one position over the other in the pages read here.

Jurists agree that abundant water is not made impure by anything unless its colour, taste or smell changes, but they differ on what counts as abundant. The Hanafis set it at the amount equal to ten cubits by ten, a cubit being seven handspans, and the preferred opinion among their muftis is ten. The Malikis hold that abundant water is more than the amount in the vessel used for washing, and similarly more than the vessel used for ablution, on the stronger view. ³

The Encyclopedia notes that the rulings on wells are built on reports, and that the Hanafi measure of abundance departs from analogy in deference to those reports. Some jurists said that for abundance the relevant standard is the view of the person who faces the question, since no legal measure is established. ³