Can a person use their allotted share of water from a stream (sāqiyah) to irrigate land that does not have an established right (rasm shurb) to water from that stream?
General Chapter
Al-Mughni
Book of Reviving Dead Land
Primary text
A person who has an established share in a stream possesses the right to irrigate with it any land they wish, regardless of whether that land has a prior established right to water from that specific stream or not. They are also permitted to give that water allocation to whomever they choose for irrigation. The basis for this is that the water allocated is an exclusive right obtained by the individual, permitting them to use it as they see fit, similar to if they exclusively owned the water source itself. Any potential harm mentioned in the analogy regarding separate properties with connecting paths is inapplicable because irrigating from one's exclusive water share does not infringe upon the rights or established shares of other partners in the main river.
Supporting text
The Qadi and the companions of Al-Shafi'i hold that irrigating land without an established right is impermissible. They argue that doing so implies an unestablished right for that land from the source, potentially harming the co-owners by setting a precedent for entitlement. They analogize this to creating an unauthorized passage between two adjacent, privately owned properties that connect to separate, non-connecting alleys.