Does the original owner have the right to prevent the usurper from filling the well?
General Chapter
Al-Mughni
Book of Usurpation
Primary text
If the owner prevents the usurper from filling the well, the right to prevent filling depends on the owner's underlying interest. If the owner has a purpose for the well being filled, such as removing liability for anything that might fall into it, or if the owner has moved the excavated soil to his own property or someone else's property or a path requiring clearance, then the owner has the right to insist on the well being filled. This view is held by Al-Shafi'i.
Supporting text
If the owner has no interest in the well being filled, such as if the soil was placed on the usurped land itself, and the owner explicitly absolved the usurper of liability for the digging and permitted it, then the usurper does not have the right to fill the well, according to one legal opinion. This is because filling it then constitutes destruction without benefit, similar to someone taking a blank coin, minting it into currency, and then wanting to revert it to a blank coin. This view is supported by Abu Hanifa, Al-Muzani, and some Shafi'is. A second view maintains the usurper still has the right to fill it, arguing that the owner's absolution does not remove the liability since it concerns a future obligation, or that it is an absolution of a right belonging to the consequence of the action. Furthermore, the initial liability arose from the transgression; if the landowner consents, the transgression ceases, and thus the liability ceases, which is considered the removal of the transgression through consent, not an absolution of a future obligation. Preventing the filling implies consent to the situation remaining as it is.