Nahr (river)

Nahr, in the lexicon, is a channel of fresh water, a wide running stream; in the jurists' usage it is a channel for water larger than an irrigation canal (saqiya), one that does not need constant dredging. The jurists divide rivers into the public kind owned by none, such as the Nile, Tigris, Euphrates, Jayhun and Sayhun, and the kind owned by one or more persons; building the rules of each kind involves the right of use, the division of water, dredging, and land from which the water has receded. ^{1 2}

In the lexicon a nahr is a channel of fresh water, a wide running stream; its plurals are nuhur and anhur, and the word was extended by metonymy to the channel itself, so that one says "the river ran" and "the river dried", the literal expression being "the river's water ran". In the jurists' usage it is a channel for water larger than an irrigation canal, a great channel that does not need constant dredging. ¹

The sea (bahr). In the lexicon, abundant water, salt or fresh, the opposite of dry land; the word has come to dominate the salt kind until its use for fresh is rare, and its technical sense does not depart from the lexical. Its relation to the river is that both are wide places gathering abundant water, but the sea is mostly salt water and the river fresh. ¹ The well (bi'r). In the lexicon, a dug pit; a deep hole from which water or oil is drawn. Ibn Abidin quotes al-Natf: a well is what has "materials" from beneath, meaning waters that feed it and spring from below. Its relation to the river is that both gather water, but the river is a wide channel and the well a deep hole. ¹

The jurists divide rivers by their waters into two: a river owned by no one, or not reserved to anyone, such as the Nile, Tigris, Euphrates, Jayhun and Sayhun; and a river owned by one or more persons, each with its own rulings. The unowned river is either great, such that people cannot crowd upon its water, like the Nile and Euphrates, or small, where people crowd and compete for its water; the right of use differs between them. ²

When the river is great and crowding is impossible, every person may use it — drinking and watering his animals whenever and however he wishes — since no one owns the water or the river's bed, and water exists by God's making and remains permitted, on the hadith "Muslims share in three things: water, pasture and fire". Anyone may cut a channel from these rivers to his land when he revives dead land with the imam's leave; neither the imam nor anyone may bar him so long as he does not harm the river, and he may set up a mill, a water-wheel or a noria upon it so long as there is no harm, for these rivers have not come under anyone's hand and all are equal in them, on condition of no harm, like using the public road. ² If he harms the river or the public — the water overflowing and ruining people's rights, or cutting off the great river, or barring those upstream from watering the passage of ships — then anyone, Muslim, dhimmi or mukatab, may bar him, for it is the right of all Muslims, and licence to act in it is conditional on freedom from harm, like acting on the public highway. Abu Yusuf was asked about the river of Merv, a great river, when a man revived dead land and cut it a channel from a spot no one owned: if it brought harm upon the people of Merv in their water he had no right to it; if it did not harm them, it was his and they could not bar him. Asked also whether a man with known openings on this river might enlarge them, he said: if he enlarges within his own property without harming the river's people, he may. ³

The Malikis, Shafi'is and Hanbalis hold that when the unowned river is small and people crowd upon it and compete for its water, the one upstream waters his land and holds back the water to the ankle-bone, then releases it to the next, and from the second to the third, until all the lands are watered; the basis is the report of Abd Allah ibn al-Zubayr about the springs of al-Harra, when a man of the Ansar disputed with him and he was told "Water, Zubayr, then hold the water until it reaches the wall". It is also reported of Ubada that he judged for the watering of palms from a torrent that the uppermost drinks before the lower, the water being left to the ankles and then released to the next lower until the gardens are done or the water fails; Ibn Hajar declared it weak for a break in its chain. If the first waters and nothing is left, the one after him gets nothing, for his right is only to the surplus, like the residuary heir with the fixed-share heirs. ^{3 4 5} If one man's land is partly low and partly high, each part is watered separately: the low part is watered to the ankles and dammed, then the high part, for watering both together would over-water the low. If the upper man has watered and needs to water again before all the lands are done, the Shafi'is in the sound view let him, while the Hanbalis say he may not until every land is watered, so that equality is reached. ^{4 5} But if the one downstream was first to revive his land, he has the priority in watering, then the one who revived after him, and so on, for the measure is revival, not nearness to the river. The Shafi'is even say the lower, earlier reviver may bar one who wishes to revive a plot nearer the river and water it in a time of scarcity, and then whoever revived next after him, with no weight given to nearness. Suhnun of the Malikis restricted the priority of the earlier lower reviver over the later upper one to the case where his crop is feared lost, otherwise the upper takes precedence; Mustafa al-Rammahi concluded that the lower is preferred whenever he revived first, even if his crop is not in danger. ⁵

The jurists differ on the measure of water held back before it is sent on. For most of the Shafi'is it is held until it reaches the ankles; another view refers the measure to custom and need. Al-Mawardi says the ankle-measure is not for every age and land, since it is set by need, and need varies with the land, its crops and trees and the season. Al-Ramli's commentary reads the majority's words as applying to land for which the measure suffices; land that needs more, like most farms of Yemen, is watered to the measure of its customary sufficiency in place and time, a view al-Subki chose and al-Adhra'i called strong, and al-Mutawalli affirmed it. The "ankles" meant are, apparently, the lower of them, by reference to the moderate measure, since men's ankles are high and low. Mutarrif, Ibn al-Majishun and Ibn Wahb of the Malikis say the upper man holds what reaches the ankle and sends the rest to the next — the clearest view for Ibn Rushd — while Ibn al-Qasim says he sends all the water and keeps back none of it after watering his land. ^{5 6}

If a river is owned by a person — as when he cuts himself a channel from the unowned rivers — he has the first right to it for watering his land and animals, and no one may crowd him or water land, trees or crops from it without his leave, for the right is his and depends on his permission. The Hanafis say: whoever waters his land or crops from another's river without leave, whether driven by need or not, owes no compensation, but if he takes it again and again the ruler disciplines him with beating and prison if he sees fit; yet others have the right to drink for themselves and their animals unless the river's ruin is feared from many animals — and al-Zayla'i said that if the spring-drinkers would take all the water, or the beasts coming on it are so many they cut the water off, some said he may not bar them and most said he may bar them for harm, and the second was settled on in al-Multaqa. The Shafi'is say the river's owner may not bar what is for drinking, using, and the watering of animals. ⁶ Ibn Abd al-Salam said: drinking and watering animals from owned channels and rivers is lawful when the watering does not harm their owner, the customary leave standing in the place of the spoken; were the river owned by one whose leave does not count, such as an orphan or public endowments, he marked a hesitation and the apparent view is permission. The Hanbalis say: anyone may draw from running water for his drink, his ablutions and the washing of his clothes, and use it for what does not affect it, without leave, so long as he does not enter an enclosed place for it, and its owner may not lawfully bar him, on the hadith of Abu Hurayra (may God be pleased with him) of the three whom God will not look upon, among them a man with surplus water on the road who barred it from the traveller; and from Buhaysa from her father, who asked "What may not be withheld?" and was told "Water", asked again and was told "Salt" — Ibn Hajar reports Abd al-Haqq and Ibn al-Qattan marked it weak through the unknown Buhaysa. As for what does affect the water, like the watering of many beasts: if the water exceeds its owner's need he must give of it; if it does not exceed, he need not. ⁷

If the river lies inside a man's property he has the first right to it and may bar others from entering his land — agreed in general. The Hanafis say the water in ponds, wells and springs is not owned by its owner; it is permitted in itself, in free or owned land alike, but he has a special right in it, since water was created permitted, on the hadith "Muslims share in three". He may bar one who wants to drink for himself or his beasts from entering his property, for entering harms him without need — so long as the one seeking entry finds water nearby in free land. If he finds none and is driven to enter, fearing ruin for himself and his beast, the river's owner is told: either let him in to take the water, on condition that he does not break the river's bank, or bring the water out to him yourself; if he gives him none and bars his entry, the man may fight him with arms to take what wards off ruin, and the basis is the report of the people who came to a water, whose owners refused them, so Umar told them "why did you not put arms on them?". ^{7 8} The Malikis say: whatever water lies in owned land, brought forth like a dug well or a drawn spring, or not brought forth like a pond, its owner has the first right to it and may lawfully sell it and bar people from it except for a price — unless people come upon him who have no price with them and are feared ruined if he bars them, when he must not bar them; if he does, they must struggle against him, as Malik said in the Mudawwana. Ibn Yunus said everyone who fears a Muslim's death must keep him alive with what he can: owners of waters must sell to travellers at their worth without overcharging, and if the travellers have no price they must share with them and not pursue the price even if they have wealth back home, for they are wayfarers who may take zakat, sharing with them being due. The Shafi'is say: waters reserved to some people, such as the waters of wells and conduits — one who digs a well in his property or has a spring burst in it owns it and owns its water in the sounder view, for water is ownable and is the yield of his property like fruit and milk; yet he must give of what exceeds his drink to others' drinking and of what exceeds his beasts and crops to others' beasts; in the counter-view he does not own the water, on the hadith. Whether the water is owned or not, he need not give of the surplus for crops and trees; the surplus must be given for others' drinking and for their beasts, the duty for beasts but not crops resting on the sanctity of life — some said it is due for crops like beasts, others that it is not due even for beasts when the water is secured, and only due for beasts when open pasture exists and the owner finds no water given him nor secured in a vessel. Where giving is due, taking payment for it is not lawful even though selling food to the starving is valid, for the prohibition on selling surplus water is sound; in selling water, measure by volume or weight is required, not by the drenching of beasts and crops. The Hanbalis say the water is not owned, on the hadith "Muslims share in three"; whatever of his unsecured water exceeds his need and the need of his household, beasts and crops must be given to others' beasts and crops, on the hadith "do not withhold surplus water to keep back surplus pasture" — so long as the beasts' or crops' owner finds no free water to make him independent, nor is the giver harmed, nor does the seeker hurt him by entering his land, when barring is allowed to ward off injury. ^{8 9}

If the river is owned by more than one person, none of the partners may cut a channel from it, set up a mill, a wheel, a bridge or a vault upon it, widen its mouth or carry his share to another of his lands except with his partners' consent, for they may be harmed by it; nor may an outsider water his land save with their leave. Ibn Abidin quotes al-Khaniyya: when a river is reserved to a group, no outsider may water his garden or land except with their leave, and if all but one consented, or one of them is a minor or absent, a man may not water his land or crops from it. In al-Umm: were a group to own waters in a steppe, water from them and draw, and something remained, and one who has no water came asking to drink or to water, addressing one partner not another, the one who has surplus water — however little — may not bar him from it, in spring, well or river, for it is surplus water that rises and is replaced. ^{9 10}

The jurists agree that each partner in digging the river may use its water for drinking and for watering his land, and if they agree among themselves on a particular manner of use, it is allowed, for the right is theirs. On the Shafi'i and Hanbali view the partners may divide the river's water by turns, if they agree on it and each one's right is known — setting each partner a share of a day and a night, or one from sunrise to noon and another from noon to sunset, or dividing it by hours that can be fixed by something known, or each watering one day, or some watering more in proportion to their shares; they seek support for it in surah al-Shu'ara verse 155. The Shafi'is say: if they divide it by turns it is allowed, and each may withdraw whenever he wishes in the sounder view; if he withdraws after taking his turn before the other has taken his, he owes the hire of his turn from the river for the period he held it. Some said the turn-taking binds so that each can rely on the use; some said division by turns is not valid, since water falls and rises and the benefit of watering varies with the days. ^{10 11} If the partners quarrel over the division, or the water is too scant to share out, the judge divides it between them. The Shafi'i and Hanbali method is to set a board or stone across the river, its two ends and middle level, resting on a levelled spot, with holes in it equal or unequal to the shares — six holes for a half, a third and a sixth owner (three, two and one holes pouring into each one's channel); ten holes for a two-fifths owner and two equal partners (four, three and three); and when ten partners hold near and far lands, five holes for the near-side five and five holes running down the river to the far lands, then subdivided among them. Whatever reaches a partner's channel is his to use as he likes. ¹¹ The Hanafis say: when a river between people is disputed over shares of watering, the shares follow the size of their lands, since watering the lands is the purpose; the upper man may not drink only by damming the whole river, for that voids the others' right, but he drinks his own share. If they agree that the upper man dams to take his share, or that each dams in his turn, it is allowed, the right being theirs — except that he dams with a plank if he can, not with what fouls the river like clay, unless they consent. If one of them can only drink by damming and they have not agreed, the downstream people are served first until they are sated, then the upstream may dam — the meaning of Ibn Mas'ud's words "the people of the lower river are masters over the upper until they are sated". In al-Durr al-Muntaqa, Shaykh al-Islam reports that the scholars preferred the imam dividing between them by days when they cannot agree nor benefit without damming, each damming in his turn; Ibn Abidin explains it wards off general harm and ends disputes, each partner having a right in the water. And if the division was fixed by kuwa (holes), a partner may not demand division by days, the old arrangement staying on its old footing where the right is clear. The Malikis say: when a group joins to bring water across free or shared land, or to dig a well or spring, the water is divided among them by their works, by a qild (a vessel pierced and filled with water, an instrument for giving each his due) or the like; al-Dusuqi says that when the division is by qild, the difference between strong and weak flow is taken into account by experts, and if they quarrel over who begins, lots are cast and the one whose lot comes first goes first. ^{11 12}

Rivers are either public, owned by none, or private, owned by one or more, and who bears the cost of dredging and repair differs with the kind. The dredging of public rivers like the Nile, Tigris and Euphrates falls on the ruler from the public treasury, since the benefit is all Muslims'; the cost comes from the kharaj and jizya funds, not the tithes and alms which are for the poor, on the hadith "kharaj follows liability". If the treasury holds nothing it falls on the people; if they refuse, the imam compels them, to keep the common good alive — Umar said "had you left it, you would have sold your children". The imam levies for the work those who can work and lays the cost on the wealthy who cannot, as is done in equipping armies. If flooding is feared from these rivers, the ruler repairs their banks from the treasury. Owned rivers are dredged, repaired and maintained at the charge of their owners, the right and the benefit being theirs. ^{13 14} On how the dredging of a shared river is divided: on the Hanbali view, on Abu Hanifa's, and in a Shafi'i facet, it falls on the partners in proportion to their ownership. The Hanbalis explain: if some partners are nearer the river's head, all share the work until they reach the first; past his stretch he owes nothing, his right ending there, the rest sharing to the second, and so on — each owing nothing beyond his own place; and what remains beyond them all, needing an outlet, is on all of them for their shared need of it. Abu Hanifa says the cost is on them from the top, a man quitting once the work has passed his land — Ibn Abidin explains: ten partners each bear a tenth, then once past the first one's land the nine bear ninths, and so the lowest pays most; the fatwa follows his view, its ground being that dredging is a right of ownership, and the stretch upstream of the first drinker is owned by all from the river's mouth, while below it the upper man keeps only a right to have his water flow on. Abu Yusuf, Muhammad, and the Shafi'is in the sounder view say the dredging is on all partners from head to foot for their shared use; the two companions said it is by the shares of drinking and land, as in pre-emption, for the upper man has a right below, needing his surplus to flow through. The Hanafis add that nothing of the dredging falls on the right-to-drink holders (ahl al-shufa), it being a right of ownership and they owning nothing of the riverbed — their right is to drink and water animals only, and besides they cannot be numbered, being all the world's people. ^{14 15}

The jurists agree that whatever a shared river needs of dredging, repair and maintenance falls on all the partners; they differ when one refuses: for the Hanafis and Hanbalis the refuser is compelled; for the Malikis and the Shafi'is in the new school he is not, each school having its detail. ¹⁵ The Hanafis divide the owned river into "general" and "private", the mark being that the private attracts pre-emption and the general does not; the boundary was fixed variously — private being a river for ten or fewer or for one village, or for under forty, some setting the line at a hundred and some at a thousand; the soundest is that it is left to the mujtahid's judgement, another saying the private is what ships do not sail in, and al-Itqani said the best is that a company under a hundred is private, else general. In a general river, a partner who refuses dredging is compelled, warding off the general harm of the rest of the partners against the refuser's private harm which is met with compensation; and if the partners want to fortify it against a breach where general harm like the drowning of lands and ruin of roads is feared, the refuser is compelled, but not where no general harm is feared, that being imaginary unlike the known benefit of dredging. In a private river whose refusing party is some of the partners, some said he is compelled — Abu Bakr al-Iskaf's view, preferred by Ibn Abidin as in al-Khazana — and some said he is not, Abu Bakr ibn Abi Sa'id al-Balkhi's view, which Ibn Abidin calls the apparent transmitted one; if all the partners refuse and agree to leave the dredging, the apparent madhhab does not let the imam compel them, as when they refrain from building on their lands, though some late scholars said he compels them for the right of the right-to-drink holders. On the no-compulsion view, when some refuse and the rest dredge, recovery from the refuser is allowed if it was by the qadi's order — Ibn Abidin quotes al-Dhakhira that when the qadi orders them to dredge the refuser's share on condition of recouping the cost from his drinking share, they recover from him; and if they did not bring the matter to the qadi, some say they recover his share and may bar him from drinking until he pays, and some say not — the former being attributed in 'Uyun al-Masa'il to Abu Hanifa and Abu Yusuf, likewise in the Tatarakhaniyya and Bazzaziyya, while the drift of al-Durr al-Mukhtar, like al-Hidaya and al-Tabyin, prefers no recovery without the qadi's order. ^{15 16 17} The Maliki principle is that a partner in what does not divide is ordered either to build with his partner or to sell him his whole share if he refuses; but they excepted partners in a well, a spring or a river, where the one who refuses building is not forced to sell, whether there is crop-bearing planting on it or not — the partner is told: build if you like and the water your building brings is yours, either all of it if the ruin had removed it all, or the increase from building, until he recovers what he spent or the refuser pays his share, which is Ibn al-Qasim's view; Ibn Nafi' said he is forced to sell if there is crop-bearing planting, but Ibn Rushd weakened it and preferred Ibn al-Qasim. In Mawahib al-Jalil: when a shared well or conduit needs cleaning for want of water and one partner wants to clean while the rest refuse — neglect harming the water, which does or does not suffice beyond those wanting the cleaning — those who want it may clean and have the first right to the increase over the refusers until they pay their share, when all take their shares of the whole water. The Shafi'is say: when a partner in a river, conduit or well refuses the building, the new school compels him not, as one is not compelled to cultivate shared land, and the refuser is himself harmed by the burden, harm not being removed by harm; the old school compels, warding harm and keeping shared property from lying idle — al-Nawawi says the new is the clearer for most companions, the author of al-Shamil preferred the old and al-Shashi gave fatwa by it, and al-Ghazali in al-Fatawa said the analogical course is compulsion, and when the qadi sees refusal as mischief he compels, while refusal from poverty, a sound purpose or doubt does not compel. If a partner spends on the building he may not bar the refuser from the water for irrigating crops but may bar him from the wheel, pulley and machines he newly made; al-Nawawi says that on the old school, if the refuser insists, the qadi spends on him from his property, borrows on his account if he has none, or lets the partner spend to recover — and if the partner spends alone there is no recovery on the madhhab, some saying two views (yes in the old, no in the new), some that he recovers in the old with two views in the new. The Hanbalis compel the refuser for his partners' right: the qadi takes cash from his property and spends his share, sells his goods if he has no cash and spends with the partner pro rata standing in the refuser's place, or borrows on his account if his wealth is hidden, as with maintenance owed to a wife; and a partner who builds with the partner's or the qadi's leave recovers, the duty resting on the one spent for. When a partner wishes to build, the partners may not bar him and the water stays shared, not his alone, for it springs from joint ownership and he only moved its clay; his recovery of spending is as above. ^{17 18}

The jurists differ on land from which the river's water recedes, whether it is fay' for the Muslims or belongs to the adjacent owner: for the majority it is fay', for others it is the neighbour's. For the Hanafis, when the water of the great rivers — Sayhun, Tigris, Euphrates — ebbs from land, the adjacent owner may not annex it to his own, for the water may return, find no way, be thrown on the other side and harm; but if return is not feared, or dead land faces it on the other side whose flooding harms no one, he may, and owns it by revival with the imam's leave or without, per the dispute on requiring leave. The Malikis disagreed: al-Allish, asked about land uncovered by the sea, said it is the neighbour's, which is also Isa ibn Dinar's view, relied on by Jumudis and followed in fatwa and judgement, while Suhnun, Asbagh and Mutarrif say it is fay' for the Muslims as the sea itself was. For the Shafi'is, water receding from one side does not leave the common rights of the Muslims; the sultan may not grant it to anyone, like the river and its harim, and one who plants it owes its hire to the public welfare, less his own share if he has one, while the imam may hand it to one who will use it so long as no Muslim is harmed — the same for sea islets: planting is allowed for one not intending revival, but no building, planting of trees, or harm to Muslims is allowed. The Hanbalis distinguish owned land overwhelmed then dried by the water — which stays on its owners' ownership from before the flood, water not removing ownership — from islets and raqaq (soft or sandy level lands) that the water leaves without ever being owned, which anyone may revive, near or far, like dead land — al-Harithi adding "provided no harm" with an explicit text, while al-Tanqih says it is not owned by revival, followed in al-Muntaha. Ahmad in al-Abbas ibn Musa's report says that when water dries from an island adjoining a man's yard he may not build on it, there being harm in it — the water may return and, finding it built, be thrown to the other side and harm its people, and islets being the growth-land of pasture and firewood, treated like surface minerals — while in Harb's report it is related of Umar that he permitted the islets' vegetation: if the Euphrates dries from a spot and plants grow, a man may not bar people from them; and if the dried spot benefits no one, a man may develop it in ways that do not throw the water back, like making it a field, having the first right as one taking a waste no Muslim has a right in — the details in the entry on ihya'. ^{18 19 20}