but whose well then collapses while his neighbour has surplus water. One view is that he should be awarded the surplus water from his neighbour’s well by judicial ruling; some said this should be for payment, while others said without payment. Those who understood the hadith in its general sense, or interpreted it as referring to this situation, said that no payment was due. Those who interpreted it as referring to two people sharing water said that the neighbour could only be compelled to supply it for payment. Both positions are reported from Mālik, may Allah have mercy on him.

As for water on land that is not privately owned, it is either obtained through human effort or otherwise. Where it is obtained through human effort—such as a well someone digs in open country or desert wilderness for his livestock, or cisterns he constructs—he has priority until his livestock have drunk their fill. Thereafter, everyone shares in the surplus, because the Messenger of Allah, peace and blessings be upon him, said:

“Surplus water must not be withheld in order to deny access to pasture.”

Such a well may neither be sold nor inherited as private property. The heirs do, however, take the deceased’s place in having priority in watering. If he bequeaths a third of his estate to someone, however, they neither acquire priority in watering nor take the testator’s place in that respect. This is Asbagh’s report from Ibn al-Qāsim in al-ʿUtbiyya.

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If those entitled to use the well dispute who should have priority, Ibn al-Mājishūn said that any established custom among them—giving priority to those with greater wealth, to one group over another, or to an older person over a younger one—must be followed. Otherwise, they draw lots. In my view, this applies when their degree of kinship to the person who dug it is equal. If some are more closely related to him, they have the stronger claim to priority, whether their livestock are few or many. Neither a wife nor a husband acquires any entitlement through marriage; unless they belong to that branch of the family, they are treated as outsiders.

According to Mālik, a well, a reservoir, and a cistern are all subject to the same rule. This differs from al-Mughīra’s view that a person may withhold the surplus water in a livestock cistern. His reasoning is that a cistern entails considerable expense and is not replenished by a spring, unlike a well, in which whatever is drawn is replaced by an equal amount. Its construction therefore cannot be presumed to have been intended as charity without clear evidence. By contrast, someone who digs a livestock well in the desert wilderness is presumed to have intended it as charity. If he claims that he did not intend charity but intended to sell its water, his claim is not accepted, and he is prevented from doing so