He also said, in the narration of Abū Ṭālib—when he was asked about a man who possessed water and wished to enter into a partnership with the landowner, he disapproved of it and said: “The Messenger of Allah ﷺ prohibited the sale of water.” Thus, he disallowed entering into a partnership with the landowner by means of the water, just as he disallowed selling it, since in reality this is an exchange in return for the water.
Yaʿqūb ibn Bukhtān transmitted from Aḥmad that he was asked about a man who owned land while another owned water. The landowner said to the owner of the water, “Direct your water to my land, and we will share the crop.” He replied, “There is nothing wrong with that.” Thus, he permitted a partnership involving the water. This indicates that the water is his property before he draws it and takes possession of it, and that it becomes his property where it rests before he takes possession of it—just as when someone owns a mineral deposit, he owns what it contains before extracting it. On this basis, entering into a partnership concerning it is permissible before he draws it; and if someone draws it without his permission, he may reclaim it from him. For since partnership in it is permissible, this indicates that he owns it, whereas one cannot enter into a partnership involving something one does not own.
Abū Bakr adopted Yaʿqūb’s narration and said: “A partnership is not a sale. The Prophet ﷺ only prohibited the sale of water.” There is some weakness in this argument, because a partnership is an exchange in which water is given in return for the crop it produces, and this is the very essence of a sale.
Once his exclusive right to the water has been established, he may use it to water his livestock, crops, date palms, and trees. If no surplus remains beyond what is sufficient for his own needs, he is not obliged to give any of it to others except to someone in a life-threatening necessity. Ibn Manṣūr transmitted from Aḥmad that he was asked about a man who came to a group of households and asked them for water, but they did not give him any until he died; ʿUmar then made them pay the blood money.
Aḥmad was asked, “Do you hold this view?” He replied, “What can I say? ʿUmar held it.” He was then asked, “Do you hold it yourself?” He replied, “Yes, by Allah.”
Al-Faḍl ibn Ziyād also transmitted from him—when he was asked, “May water be made an endowment?”—that he said: “If it is something that they have made available to one another, then that is permissible.” This is understood to refer to making an endowment of the place containing a permanent water source, because water cannot be benefited from except by using it up, and therefore it cannot itself be made an endowment.
If water remains in surplus after his needs have been met, he is obliged to make it available to those seeking to water their livestock and animals. Is he likewise obliged to make it available for crops? There are two narrations. According to the first, he is not obliged to do so. This was explicitly stated by Aḥmad in the narration of Ḥarb, concerning a man who had a small garden in his house, with a channel running through the earth from which he drew water with a bucket to irrigate his garden. Aḥmad said: “No—not unless he has an irrigation right in the channel or is a partner; he may not irrigate without the permission of its owners.” He thus prohibited him from doing so, which indicates that the owner of the water is not obliged to make his surplus available.
According to the second narration, he is obliged to do so. In the narration of Isḥāq ibn Ibrāhīm, Aḥmad was asked about a group of people who owned a river from which they drew water for irrigation, and a man came and planted a garden beside it. He said: “If there is surplus beyond the group’s irrigation needs and this causes no harm to anyone else, there is nothing wrong with irrigating the garden.”