he may do so only for a price, for he has benefited from another man’s property without permission.

As for the Prophet’s words, “No one may withhold surplus water so as to prevent pasturage,” Malik and his companions—following the version recorded by Imam Ahmad in his Musnad and the various other isnāds in which the report appears—hold that it pertains to people who dig a well in the desert or barren wilderness to water their livestock. After their own animals have drunk, they are not allowed to stop any other herder grazing in the same place from watering his beasts with what remains after their own needs are met. The judge obliges them to offer that surplus to the public at large so that everyone may share in it; their sole advantage, by virtue of having been first to dig the well, is priority of access—nothing more. That is the meaning of the statement, “Do not withhold surplus water so as to prevent pasturage,” for if they were to bar access to the water, the pasture—over which all people are joint partners—would effectively be barred as well.

A well excavated in open, ownerless land has no fixed or exclusive protective zone. Whoever reaches the water first is entitled to it until he has taken what suffices him; once he is satisfied, the excess is for whoever comes next, and it is unlawful for him to withhold that surplus. The same rule applies to grass, firewood, and all other publicly available resources.

Some of Malik’s associates—and this too is reported from him—held that the water of a domestic well within settled areas is like that of an irrigation well: if his neighbor’s well runs dry, he may not prevent the neighbor from drawing from it. The settled position of the school, however, is that he may refuse, and that the ḥadīth concerns only wells dug for livestock in the open wilderness.

Likewise, any water drawn from a well into a running spring or irrigation channel is not to be taken or used except with the owner’s permission.

According to Malik, a man may sell the grass growing on his own land, but as for the grass around an irrigation well—