In cafe o f a
difpute concerning
the
road, it mu ft,
be divided.
to them •, in which cafe, the partition is valid, and the road and
water-drain are included in it, fince the end of partition is that each
may enjoy the ufe of his property, and it is impofliblej)erfe<9dy to enjoy
the ufe of the grounds without a road and water-drain. T h e
road and water-drain are therefore, in this inftance, included in the
partition, provided the parties mutually ftipulate to each other the enjoyment
of their (hares with all their refpective rights: as, however,
the objeft of partition is to difcriminate, which requires a complete fepa-
ration of all connexion in their refpective (hares, the road and water-
drain are not included, unlefs fuch a ftipulation be particularly made.
It is otherwife with refpeft to lands farmed; for the intention of
farming being to enjoy the ufe of the lands,.; which cannot be done
without having a road and water-drain,-it follows that if thefe a r - '
tides (hould not have been exprefled, they are neverthelefs included
in the farm.
If the parties differ regarding the road, fome of them defiring that
it (hould remain, as formerly, in. common, but that all the reft of the
property be divided, and others of them oppofing this, -in fuch; cafe,
provided it be practicable, the magiftrate mult divide the; road, and
afli°-n a part of it to each particular ( h a r e o r , if this be impracticable,
he mud leave the road out of the partition, which muft neverthelefs
be made, in order that the parties may enjoy the full ufe of all
their property excepting the road.
If the parties differ'regarding the extent of the road, (that is, regarding
the height and breadth which ought to belong to each) the
Kdzee muft regulate their proportions by the breadth and height of
the doors of their refpective houfes, as that is fufficient to anfwer
their necefifary oceafions. The advantage of this arrangement is,
that if any of them be defirous of making a projection or terrace from
his houfe over'the ftreet he may do it above the height of his door,
but not below it; and the road will dill remain in common, according
to
to their feveral proportions, in the fame manner as, béfore the partition
; for the partition (as we have obferved above) did not take place
regarding the road.
If two partners, in dividing a road, agree that the one (hall have The parties
two thirds and the other only one third, fuch a partition is valid, ”rivateagree-
although the houfe be held betwixt them in equal proportions; for in ™aernd' rc’
partition it is lawful to give more or lefs than his proportion to one
partner, provided both of them agree to this.
I f two partners hold a houfe, the upper floor o f which is held by Complicated
r 1 _ i i_ r partition o f
a fir anger, or which has no upper floor, and likewiie another .houle, different
the under floor of which is held by a ftranger, and alfo a complete hE|^S|
houfe (that isj one of two (lories),- in this cafe the Kdzee muft appraife
each houfe feparately, and make his divifion accordingly. Mohammed
alleges that this' is the only lawful mode. Aboo Y o o ffw A Ha-
neefa are of opinion, that he ought to make the partition according
to meafuretnent. T h e argument o f Mohammed is, that the-lower floor
has many advantages and conveniences which the upper floor cannot
pofiefs, fuch as .wells, necefifary houfes, (tables, ' and fo forth ; and
that therefore the equality of partition cannot be effefted but by an
appraifement. T h e argument of the two difciplës,’.on the other
hand, is, that the partition, i f poffible, ought to be made by a mea-
furement, fince the partnerfhip fubfifls, in a thing capable of meafure-
ment, and not in the value of that thing. T h e y afterwards, however,
differed regarding the mode of, meafurement ; Haneefa
contending that one fpan of the lower floor (hould be held equivalent
to two (pans of the upper floor ; and Aboo Yoofaf maintaining that a
fpan of the one is equivalent to a (pan of the other. Some have
thought that the contradiftory opinions of thefe three, fages. ought
to be afcribed to their different places 6f abode, and the periods in
which they lived ; ■ for during the time of Haneefa the inhabitants of
Koofa (the place of his refidence) preferred the under, floor to the ’
upper ;