Is liability established if a well is dug on one's own property or on communal land without causing harm?
General Chapter
Al-Mughni
Book of Blood-Money (Diyyāt)
Primary text
If a well is dug on one's own property or on another's property with permission, there is no liability, as no aggression was committed. If dug in unowned, fallow land (*Mawat*), there is no liability, as no aggression occurred. The same applies to placing a stone, setting a trap, net, or sickle for hunting purposes. If any of these actions are done on a narrow road, liability for any resulting death is incurred because it constitutes aggression. This applies whether the Imam grants permission or not, as the Imam cannot permit what harms Muslims; if the Imam acted thus, he would be liable for the resulting damage.
Supporting text
If the road is wide, digging in a section that harms Muslims incurs liability. If digging occurs in a place without inherent harm, but the well is dug for the digger's personal benefit, he is liable, regardless of the Imam's permission. Shafi'i's companions argue that if the Imam permits it, there is no liability, as the Imam can authorize the use of harmless spaces, evidenced by permission to sit or set up market stalls. Our evidence is that this involves destruction in a shared right without the consent of its owners for a non-beneficial purpose, thus incurring liability, just as without the Imam's permission. We deny the Imam can permit this; he permits sitting because it is temporary and immediately removable, similar to sitting in a mosque, unlike digging. If the well is dug for the benefit of Muslims, such as collecting rainwater from the road or for passersby to drink, there is no liability, as the action is benevolent and non-aggressive, akin to spreading a mat in a mosque. Some of our scholars state there is no liability if the Imam permits it, but if without permission, there are two narrations: one suggesting no liability if for rainwater, expressing hope there is no liability; the second suggesting liability, as the digger acted preemptively against the Imam. The sound opinion is the first, as necessity and common need make seeking permission burdensome, potentially forfeiting the public benefit. The ruling for construction on a road follows the detail and divergence of digging: if the construction causes harm (narrow road, harming passersby on a wide road, or for personal benefit), the builder is liable. If built on a wide road in a harmless location for the benefit of Muslims, such as building a mosque in a corner, there is no liability, regardless of the Imam's permission.