Differences
of opinion
concerning
aquedu&s.
pofleffed by one of the litigants ; for in that cafe the Kazee muft adjudge
fuch plank to be the property of him who poffefles the corre-
fpondent one.— In reply to what the two difciples further urge, it
may be obferved that the conteft here does not hinge upon what was
placed for the confervation of the water [the banks,} but upon what
is independant of it, and fit for producing trees, &c. Befides, fup-
pofing that the proprietor of the aquedudt preferves the water only on
account of the dependant fpace of land, it may be anfwered that the
proprietor of the ground preferves it only on account of the dependant
fpace of land likewife.— With refpedt, moreover, to what they urge,
that “ the proprietor of the land is not entitled to break down the
“ banks of the aqueduct,” it is to be obferved that this is not becaufe
they are the property of the proprietor of the aqueduct, but merely
becaufe he has an interejl in them ;— in the fame manner as where a
perfon is pofleffed of a wall, and another, having the property pf a
wall near it, lays beams acrofs both with the affent of the other ; for
in fuch cafe the other has not afterwards the power of pulling down
his own wall, fince he muft thereby injure the right of this
perfon.
It is related, in the Jama Sagheer, that if a perfon poffefs an
aqueduct, having banks on each fide, and adjacent to them a piece of
land belonging to fome other perfon, and the banks be not in the
hands of any one, that is to fay, be deftitute of marks, fuch as trees,
ftones, or the like, to determine the property, thofe banks belong to
the proprietor of the land, according to Haneefa ;— whereas the two
difciples hold that they appertain to the proprietor of the river.— If,
on the contrary, the mark of any perfon be left upon them, they are
then unanimoufly of opinion that the marker has the better claim.—
Still, however, they differ in opinion where there is a tree upon the
banks, and it is not known who planted it ; for Haneefa is of opinion
that to plant a tree is the right of the proprietor of the ground, whilft
the two difciples hold this to be the right of the propriétor o f the aquedudt.
ju ft._With refpeft, alfo, to throwing up earth, many have faid
that there is a disagreement; whilft others have faid that this belongs
to the proprietor of the aqeduft, provided he do not exceed the pre-
fcribed bounds. With regard to walking upon the banks, fome have
faid that it is not permitted, in the opinion of Haneefa; whilft others
have faid that it is not prohibited, becaufe of there being a neceflity
for it. The learned Aboo Jafir has faid that he would decree according
to the opinion of Haneefa in the cafe of planting a tree,— and
according to that of the two difciples, in the cafe of throwing up
earth. It is reported, from Aboo Toofaf, that the width of the dependant
fpace of an aqueduct is half the breadth of the aquedudt ; but
according to Mohammed it is the whole breadth: and this opinion is
the moft favourable to mankind.— It is here proper tQ obferve, that
the fubjedt refolves itfelf into feveral feciions, treating of the cafes of
Shirba, or a right to water, whether derived from the poffeflion of
land, or from other caufes.
j ivM S E C T. I.
Of Waters.
I f a perfon have the property of a canal, a well, or a refervoir, he All people
cannot prohibit either man or beaft from drinking of it.— Here it is ^rinkfom
neceffary to premife that water is of four kinds. I. The water of the
ocean, which every perfon has a right to drink, or to carry away for and alfo cat-
the purpofe of moiftening his lands.— If, therefore, a perfon incline l'e’
to dig a canal, and convey the water in it from the ocean to his land,
no perfon has power to prevent him from fo doing; for the enjoyment
of the water of the ocean is common to every one, in the fame man-
T 2 nêr