the two difciples, it is to be conftrued merely into a judicial permijjion,
(for the prophet was himfelf an Imam,)— in the fame manner as,
where he laid, “ Whoever kills an in f del is entitled to his armour."—
Befides, all wafle lands are plunder, feeing that the Muffulmans acquired
the poffeflion of them by conqueft : and hence no perfon can
allume a property in them without the confent of the Imam, as holds
in all cafes of plunder.
I f a perfon cultivate wafte land, a tithe only is due from it, for it
is unlawful to charge a Muffulman with tribute in the beginning : but
if the land be moiftened with tribute water, tribute may lawfully be
impofed, as it then becomes due on account of the water.— If, alfo,
a perfon cultivate wafte lands, and afterwards relinquifh them, and
another then cultivate them, feme have faid that the fécond cultivator
is belt entitled to the property; for the firft was owner of the profits
merely, and not of the land itfelf ; and'therefore, upon1 his relinquifh»
ing it, the fécond obtains a fuperior claim. It is certain, however,
that the firft cultivator may refume the lands from the fécond, becaufe
he is proprietor of them in virtue of having brought them to a ftate of
cultivation, (as appears from the faying o f the prophet quoted in the
preceding cafe,) and does not forfeit his property by the relinquifh-
ment.
In the cold- JF a perfon cultivate a piece o f wafte land, and four others after»
circumjacent wards fo cultivate the circumjacent ground as to obftrud the paflage
roa°d muftbe into his property, it is reported, from Mohammed, that his road is to
left to it. lead through the ground o f him who cultivated laft; for, after three
of the fides bordering upon bÎ3 property had been cultivated, the other
o f confequence remains for his ingrefs and egrefi ; and therefore the
perfon who cultivates it wilfully aims at the deftrudtion of hi3
right.
T ' i t h only is
due from land
fo cultivated,
unlefs it be
moiftened
with tribute
water.
If
If a Zimmee cultivate wafte lands, he becomes proprietor of them,
in the fame manner as a Muffulman; becaufe cultivation endows with
a right of property. (Haneefa, however, holds that the Confent of
the Imam is requifite.)— A Zimmee and a Muffulman, therefore, are
alike in this refpedt, in the fame manner as in all other points of
property.
If a perfon circumfcribe a piece o f ground, and fet marks upon it
with ftones or fuch like, and keep it in that ftate for the fpace o f three
years without cultivating it, the Imam may in that cafe lawfully refume
it, and aflign it to another; becaufe the ground waS given to
the firft with a view to his cultivating it, fo that a benefit might en-
fue to the Muffulmans from the colleftion of the tithe and tribute; and
as he neglected this, it is therefore incumbent on the Imam to deliver
it over to another, that the end for which it was given to the firft may
be anfwered.— Moreover, the encompafling of the ground with ftones,
&c. does not, like cultivation, create a right o f property, fince by
cultivating the land is underftood rendering it productive, whereas the
encompafling it with ftones ferves merely to defignate the boundaries :
the land, therefore, ftill remains unappropriated as before.— With
refpedt to the fpecification of three years, as here mentioned, it is
founded1 on a laying of Omar, “ I%e marker has no right after three
years have elapfed"— It alfo proceeds on this principle, that three
periods o f time are requifite for a perfon who marks lands; one, that
he may go to his place o f abode after having fet the marks; another,
that he may there fettle his affairs; and a third, that he may return to
his land ; and' each of thefe feveral periods is determined at a year, as
it is probable any lels divilion o f time, fuch as an hour, a day, or a
month, might not fuffice to anfwer the purpofe. If, therefore, after
the elapfe of three years, the marker return net to his ,lands, it is preformed’
that he has relinquilhed them.— Lawyers remark that what is
here advanced proceeds upon a principle of equity; but that, in ftrict-
nefs of law, if a perfon cultivate the lands which another has marked
S 3 before
A Zimmee acquires
a property
in the
land he cultivates,
as
well as a
Mu jfu lm an •
I f the land be
not cultivated
for three
years after it
is marked off,
it may be
transferred by
the Imam*