from him and because of the wayfarers’ need for it. The person who reaches a stopping place first has a greater right to stay there than one who arrives later, until he moves on, for the Prophet (peace and blessings be upon him) said: “Mina is the lodging place of whoever arrives there first.” If they arrive at it at the same time and dispute over it, the ruler should consider how best to apportion it among them in a manner that removes their dispute.
The same applies to desert dwellers when they seek pastureland for fodder, make use of the grazing land, and move from one tract of land to another. Once they have left a place and moved on from it, they are like wayfarers: no one may object to their movement or grazing.
The second type is when their purpose in settling there is to reside and establish a permanent settlement. The ruler has jurisdiction over their settling there, with consideration given to what is most beneficial. If their presence would harm wayfarers, they must be barred from it both before and after settling there. If it would not harm wayfarers, the ruler should consider what is most beneficial: either permitting them to settle there or barring them and relocating others there, as Umar did when he founded Basra and Kufa. He transferred to each of the two garrison cities those in whom he saw a public benefit, lest travelers congregate there and thereby cause the spread of discord and the shedding of blood. He follows the same procedure in granting uncultivated lands and in other matters he deems appropriate.
If they settle there without first seeking his permission, he may not expel them, just as he may not bar someone who has brought dead land to life without his permission. He should regulate their affairs in whatever way he deems beneficial for them, and forbid them from undertaking any further expansion thereafter except with his permission. Kathir ibn Abd Allah, from his father, from his grandfather, narrated: “We came with Umar ibn al-Khattab during his ʿumrah in the year 17 AH. The people living at the watering places along the road asked him to permit them to build homes at places between Mecca and Medina where there had previously been none. He gave them permission, stipulating that the wayfarer has a greater right to the water and shade.”
The second category concerns the open spaces adjoining homes and properties. I examine the matter as follows: if their use would harm the owners, the person seeking to use them must be barred, unless the owners consent to the harm being inflicted upon them, in which case such use may be permitted. If it would not harm them, is their permission still required? It may be held that it is, since the protected precinct is an appurtenant benefit, even though they have no need of it and are on an equal footing with others.
Ahmad said, according to the narration of Ibrahim ibn Hani, concerning a man who digs a spring at a place another man has marked out: “It is narrated from al-Zuhri that he said: ‘The protected area around springs extends five hundred cubits.’” It appears that Ahmad adopted this view. He was asked: “What if he digs farther away?” The answer was that he may use whatever lies beyond another’s forecourt, and the other person’s permission is not required.
He also said, according to the narration of al-Hasan ibn Thawwab, concerning someone who digs a well in his forecourt and a man is injured by it—meaning by the well: “He is liable.”