save for the instance I have just described, and no pre-emption is due in the case of a right of way.
As for a mill (raḥā), Mālik and his associates disagreed about whether pre-emption applies to it. By the logic of Mālik’s own principles it should, for he affirms pre-emption in every undividable house, tract of land, and all other fixed or real property—apart from a male date-palm, a right of way, and those open strips of common land set aside for neighbours’ use and passage.
In the Mudawwanah Ibn al-Qāsim states that there is no pre-emption in a mill, whether it is sold together with undivided land or on its own. He reasons: “If pre-emption were due when the mill is sold with land, it would also be due when it is sold alone; for an item that is exempt from pre-emption cannot acquire that ruling merely by being sold alongside something that is subject to it.”
Ashhab and Sahnūn, however, hold that if the mill is sold together with land, the partner may exercise pre-emption over the whole of it, just as he may do when the raqīq—the thin upper strip of a wall—has been partially sold.
Muḥammad b. ʿAbd Allāh b. ʿAbd al-Ḥakam maintains that there is no pre-emption when the mill has no land attached to it and consists only of a weir and stones set in the river; but with regard to the house in which the mill is installed, including its walls, roof, and ground, pre-emption is due.
Abū Zayd transmits from Ibn al-Qāsim: if a man sells a house containing a mill and the pre-emptor wishes to claim his right, the house is valued separately and the mill with its apparatus is likewise valued; the price is then apportioned between them, and whatever share of the price falls to the house the pre-emptor may take if he so wishes. This, he said, is identical to the ruling when someone purchases a share of a house or of an animal.
Pre-emption is not obligatory in a mill because it cannot be divided in a manner that preserves its utility; dividing it would damage or render it useless. Should there be several mills and the smallest co-owner’s share still amount to one complete mill