Is water originating from a well or spring on one's land owned by the landowner?
Chapter on Selling Assets and Fruits
Al-Mughni
Book of Sales
Primary text
Water naturally present in a well or spring within the confines of one's land is not owned by the proprietor. This is because the water flows from beneath the land into their possession, similar to water flowing in a river onto their property. This view is supported by one position among the Shafi'i school scholars. Furthermore, it is narrated that the Prophet, peace be upon him, prohibited the selling of water absolutely. A practice among Muslims, such as in the case of B'ir Rumeh which was purchased and dedicated for public use by Uthman ibn Affan, indicates the invalidity of selling the water itself while it is in its source.
Supporting text
An alternative view suggests that the water enters into ownership because it is an increase (nama') of the property. A supporting narration from Ahmad suggests ownership might be implied when the landowner and the water owner agree to share the produce of crops irrigated by that water, indicating the water owner possesses the water. This concept of ownership extends analogously to flowing minerals like bitumen, petroleum, mummy wax (mummiya), and salt found on the land.