Is the owner of a tree obligated to remove branches extending into the airspace or over the property of another?

General Chapter

Al-Mughni

Book of Settlement

Book 16 · Issue 1 · Bab 1

Open in Qurani

Primary text

The owner of the tree is obligated to remove the branches either by returning them or cutting them down. This obligation arises because airspace is considered owned by the owner of the structure (the resting place, *al-qarar*), necessitating the removal of anything occupying another's property, analogous to the physical structure itself. If the owner refuses removal, he is not to be compelled physically because the intrusion is not due to his action. Furthermore, if damage results from the branch, the owner is not held liable. This view aligns with the position of Shafi'i.

Supporting text

A potential alternative view suggests that the owner should be compelled to remove the branches and be held liable for resulting damage if he refuses after being ordered to do so, drawing an analogy to a wall leaning onto another's property.