and whoever gets there first has the greater right to it? Or do we say: Whoever was in a place yesterday has the greater right to it?
The answer is the former. So long as the regulations stipulate that occupancy is determined day by day, then once the first day has ended and the second begins, whoever gets there first has the greater right to it.
If two people arrive first at the same time, they should draw lots. The one upstream with respect to unowned water has the right to water and to hold back the water until it reaches his ankles, then release it to the one next to him. The imam alone, to the exclusion of others, may designate a protected pasture for the riding animals of the Muslims, so long as this does not harm them.
His statement, “If two people arrive first at the same time, they should draw lots,” means that they arrive at a place to sell there, each reaching the place at precisely the same time. We then consider: if the land can be divided between them and each can benefit from the portion he takes, we divide it between them. But if this is not possible, such that there is room for only one shop, do we say that priority should be given to the older one, or to the poorer one because he is more deserving of consideration, or to the wealthier one because he will bring to this place goods that the poor person cannot bring? We say: all of these are subjective considerations, so the matter returns to the basic principle: they arrived there equally, and there is no means of distinguishing between them except by drawing lots.
But how should lots be drawn?
We say: drawing lots is whatever achieves a distinction; it is not restricted to any particular form. Whatever achieves that distinction constitutes drawing lots, and its forms vary. People differ in how they draw lots; the aim is simply to distinguish between the parties.
His statement, “The one upstream with respect to unowned water has the right to water and to hold back the water until it reaches his ankles,” means that “has the right to water” is a fronted predicate, while “the one upstream” is the delayed subject. “Unowned water” means water that is not privately owned, for water is of two types: privately owned water and unowned water.