ner as the light of the fun or moon, or the ufe of the air.— II. The
water of large rivers, fuch as the Oxus, the Euphrates, or the ‘Tigris,
in which every perfon has an abfolute right to drink, and alfo a conditional
right to ufe it towards moiftening his lands;— that is to fay,
a perfon, i f he cultivate wafte land, may dig a channel for the pur-
pofe of conveying water to it from the river, provided his doing fo be
not detrimental to the people: but if there be a probability of its being
hurtful in its confequences, (as if, by opening the banks, the water
fhould overflow the country and villages around,) in that cafe he is
not permitted to dig a channel for the watering of his land, as the prevention
of a public evil is a confideration of greater moment.— Analogous
to this, alfb, is the erection of a mill on the banks of a river; for
the demolition o f the banks by the mill is-the fame as by watering
land.— III. Water in which feveral have a lhare;—and in which,
likewife, the right of drinking is allowed to every one; for it is recorded
in the traditions that three things are common to all, namely,
3water, grafs, and fire. Befides, wells, and the like, are not dug for
the purpofe o fpreferv'mg water; and hence the water of them is not
the property of any ohe; for it is common, and as fuch cannot be
made a particular property until it be feparately kept and preferved;_.
as holds with relpect to a dee.r that only fleeps upon a perfon’s ground.
There is, moreover, a neceffity for eftablilhing this common right
with regard to water, fince it is impeflible for every perfon to carry it
along with him; and as a perfon may be in want of it for himfelf and
his horfe, mankind would therefore be too much cramped if an unlimited
ufe of it were not granted them. If, however, a perfon incline
to bring water to moiften the land he had cultivated from a river
or'canal which belongs to others, the proprietors may prevent him,
as otherwife their right of watering * would be entirely deftroyed.—-
IV. Writer which is preferved,' or, in other words, kept in veflelri..
Water of this defeription is property, becaufe of its detention; and
* Arab. S ln r b u , a particular right"to water,' explained in tlie courfe of this book.
7 the
the rivht of others no longer extends to i t ;—in the fame manner as
holds with refpeft to game, after being taken by any perfon. Never-
thelefs, it is doubtful whether this water may not alfo be participated,
becaufe of the tradition before quoted. Hence, if a perfon, in a time
o f fcarcity, Ideal a quantity of water equivalent to the amount which
conftitutes theft, he is not liable to amputation.
If a perfon be poflefled o f a well, fountain, or rivulet, he may ™'0et^e^ ear®r
prevent any one from drinking the water of them, or encroaching on at a little dif.
his property, provided there be other water at a little dillance, and tance'
which is not the particular property of any one. If, however, this
be not the cafe, the proprietor mull: then either bring him water to
drink, or permit him to take it himfelf, on condition that he deftroy
not the banks. What is here advanced is reported from l ’ahdvee.—
Some have faid that this Is approved, in cafe the poflfeflbr of the well-
have dug it himfelf in land which is his own property: but that, if he
Ihould have dug it in wafte lands, he is not, in that cafe, on any account
permitted to prohibit others from entering on his premifes to
drink water; for the wafte lands are a common right; and as the well
was dug towards the promoting of a common right, namely, tithe
and tribute, it follows that the digging o f it is not deftruttive of the
liberty of drinking. If, therefore, the proprietor refufe the other
permiflion to drink, and that other be apprehenfive either of the
death of himfelf or his horfe from an excefs of thirft, he may then
lawfully oppofe the proprietor with weapons, as he has already
aimed at his deftrudtion in withholding his right, namely, the
water; for the water of a well is- common, and is not property.—
It is otherwife with refpedt to water kept in veflels; for a perfon in
want of it where it is fo kept, is only permitted to contend with
the pofleflor of it without weapons. The fame law obtains in the
cafe of a perfon opprefled with hunger. Many have faid that in
the cafe of a well it is not lawful to ufe weapons; but that it is
allowable
ill'