Shirb (the right to water: public and owned waters, distribution, cleaning of canals, and sale of water rights)

In language shirb is taking one's share of drink; the word names the water itself, the turn set for the right to draw it, and the watering-place, plural ashrab. The technical sense is the turn or the time of benefit in watering a tree or a field. ¹ The shafa is what a person needs of water to quench his thirst, for cooking, for ablution and bathing, and what he needs to water his livestock and beasts. ²

Waters are of four kinds by ownership and use. Public water is that which rises where no one holds it and no human has made it, like the great rivers and the springs in the mountains; it belongs to all, and each may use it for drinking, for drawing, for cutting channels and setting up watering-gear, on the hadith that Muslims share three things: pasture, water and fire. ^{2 5} Water flowing in canals and channels that are owned belongs to the owner of the channel, who has priority, while others may drink from it and water their beasts; if the owner refuses, a person in need may take what he needs by force. ⁴ Water from a spring the owner has, such as a well he digs on his own land or a spring that bursts there, is owned by him according to the Malikis and Shafi'is, but he must give the surplus over his own drinking to others' drinking, and over his livestock to others' livestock, where there is open pasture and no other water. ^{4 8} Water collected in vessels is owned by the one who collects it, by agreement of the jurists, and it is the custom to sell it; it may not be taken without the owner's leave, unless one fears death and the owner has surplus. ⁹

When water is short or the channel narrow, the one who was first to bring the land to life has priority; if both came together, lots are drawn. If some need water for their land and others for drinking and their beasts, the one needing drink goes first. ⁵ If the river is great and the channel wide enough for all, each waters when and what he wishes; if the water is little, the first waters his land and lets it go to the next, and so on. ⁵ The jurists cite the story of al-Zubayr and an Ansari about the channels of al-Harra, when the Prophet ﷺ said: water, Zubayr, then let it reach the neighbour; then hold back until it reaches the walls. ⁵ If two stand equally near the head of the stream, they divide the water if that can be done, and otherwise draw lots; if one's land is larger, the water is divided by the size of land. ³ One who brings to life land nearer the head of a public stream may not water before those who had the right to the stream earlier, since whoever owns land owns it with its rights and conveniences. ³

Cleaning means taking out the silt from the bed of the stream, digging, and repairing its banks. Its cost and all repair come from the treasury of the Muslims, and if the treasury has nothing the ruler compels people to repair the river if they refuse, to prevent harm and secure the public interest. ³

One who is not the owner of a stream may dig a channel above it if it does not narrow the owner's flow. If several dig together they share the ownership by their labour, or by their lands if they stipulate it, and the upper may not hold back water from the lower. Division is done by the ruler with a board pierced with holes in proportion to shares; no one may widen or narrow the mouth of a shared stream or build a bridge over it without the others' consent, and its upkeep falls on them by ownership, and they may take turns. ^{4 8}

The Malikis and Shafi'is hold that one whose spring bursts on his land, or who digs a well there, owns the water, but must give the surplus. The Malikis also hold that he may prevent others from it or sell it, except when someone fears death or grave harm, in which case he must give it free; one who has money, however, is not given it except for a price. ⁸ The Hanafis hold that water of wells, cisterns and springs is not owned, but permitted in itself, whether dug on owned or unowned land; the digger has a right of priority on his land. He may not keep people from drinking or watering beasts from it, on the hadith that the Prophet forbade preventing the overflow of a well. The owner of land may bar entrance to his property when people are not in need; if they are, he is compelled to permit them. The Hanbalis agree. ^{8 9} One who digs a well for public convenience on unclaimed land holds priority while he remains there, on the hadith: whoever is first to what no Muslim has been first to, it is his; if he leaves, the priority ends. ⁹

The user of private streams, channels and wells must not harm the owner's property; he must keep the banks and the well from ruin, and if he does not, the owner of the channel may forbid him, on the principle that there is no harm and no harming. ^{9 6} A person with a right to water may sue whoever prevents him from enjoying it, since water is desired and can be acquired by inheritance or bequest. ⁶

The Malikis, Shafi'is and Hanbalis allow the right to water to be sold, let, settled by agreement, given, or given in charity. A settlement for a place for a channel in land is valid if the place is fixed; a settlement on running water in a channel in land while the owner keeps his ownership is a lease, which requires a fixed term. The Malikis allow the sale of water itself, such as buying a day's or two days' water without the spring. ^{6 7} The Hanbalis forbid selling water alone, since water is not owned, but allow a settlement for a share of a spring or a stream, such as a quarter or a third, as a sale of the ground with water following it. The Shafi'is forbid selling water one is bound to give, and allow selling it by measure or weight where giving is not obligatory. ^{6 7} The Hanafis forbid selling the water right alone, since a right does not admit separate sale, but allow it to follow the land; it does not enter a sale of land unless named, and enters a lease of land by preference. ⁷ See the entries on water, pre-emption and division. ⁷