planted in
walk land.
The defer ted
beds o f rivers
mult not be
Cultivated.
A fpace is
not allowed
to an aque-
duil running
through another’s
land,
without proof
of prior right.
a fmall fpace as an appendage to i t ; wherefore no other perfon is allowed
to plant a tree on the ground within his precinds, as this fpace
is ufcful to him for collecting his fruits, and heaping them upon it.
The fpace allotted to a tree is the meafure of five yards, agreeably to
what occurs in the traditions upon that fubjett.
L a n d s through which the Euphrates, the Tigris, or any fimilar
river formerly ran, muft not be cultivated, if it be poffible that the
river may again run over them; as the people whofe lands lie adjacent
to the river in its former courfe have an intereft in defirina: that the
river may not be prevented from returning to it. If, however, the
lands be not likely to be again overflowed, they are then held to be
wafte, provided they do not adjoin to any cultivated fpot;— becaufe
fuch lands are not the property o f any one; for the fuperiority of
water repels all other fuperiority; but as foon as the land appears
above the water it becomes fubjed to the Imam.
W h o e v e r has the property of an aqueduct, which runs through
land belonging to another, is not (according to Haneefa) entitled to
any adjacent fpace, unlefs he produce evidence to prove his right.—
T h e two difciples, on the contrary, maintain that he is, in virtue of
his property in the aqueduct, entitled to the banks on which people
pafs, and winch the earth thrown up by the excavation of it occupies.
Some have faid that the difference of opinion in this cafe is founded on
that which obtains where a perfon digs a canal in wafle lands by-per-
miffion of the Imam; for in this cafe, according to Haneefa, he is not
entitled to any fpace; whereas the two difciples maintain that he is fo
entitled, fince he can derive no advantage from the canal unlefs he
poflefs a fpace annexed to it, as he muff often be obliged to walk along
the banks of it to clear away any incumbrances that may flop the
courfe of the water, it being impracticable for a perfon, in the common
courfe of things, to walk in the middle o f it.— As, moreover,
he is often neceffitated to dam it with earth and clay, and it is impoffible
poffible for him to bring thefe from any difiance without incurring an
extraordinary expence; he is therefore entitled to a fpace of ground,
in the fame manner as a perfon who digs a well.— The argument of
Haneefa is, that the claim to any fpace is repugnant to analogy, the
right to it being eflablifhed, in the cafe of a well, folely on the
ground of the precept before quoted. Befides, the neceffity for a
fpace, in the cafe o f a well, is more urgent than in the cafe'of a canal
or aquedud; for, in the latter, the ufe of the water may be enjoyed
without any fpace,—whereas, in the former, this is impoffible, as
the water muft be pulled up by a rope, to effed which a fpace is re-
quifite, as has been before explained. Hence there is an obvious difference
between a well and a canal; and corifequently they can bear
no analogy to each other. T h e reafon for founding the cafe in quef-
tion on this is, that if the proprietor of the aqueduct be entitled to a
fpace of land, he is held to be feized of the faid fpace as a dependancy
of the aquedud; and the evidence of the poffeflor is valid in cafe of a
conteft; whereas if, on the contrary, he be not entitled to any fpace,
he is not held to be feized of it, and circumftances therefore teftify for
the proprietor of the land; as lhall fhortly be explained.— If, however,
the cafe in queftion be confidered feparately, and not as founded
on the above, then the two difciples argue that the fpace js in the
hands of the proprietor of the aquedud, as he preferves the water by
means of it,— whence it is that the proprietor of the land is not entitled
to break it down.— Haneefa, on the other hand, argues that the
dependant land refembles the other land of the proprietor, with refped
both to appearance and fubftance:— with refped to appearance, becaufe
it is on a level with, and joins to i t ; and with .refped to fubftance
alfo, becaufe it is of the fame foil, and is equally capable o f
nourifhing trees and vegetables; and circumftances teftify for him
who is in poffeffion of what bears the greateft refemblance to the dependant
ground, namely, the land adjacent to i t ;— in the fame manner
as where two people contend for a door-plank in the pofleffion of
iome other perfon, and which exadly quadrates’ with another that is
, V o l . IV. T poffeffed