Chapter Two
Possessing Water and Minerals
836. It is allowed for people to benefit from all kinds of water, the running kind such as seas and rivers, and non-running such as underground water and the like which cannot be described as running on the surface of the earth. It is not necessary to seek the permission of an Islamic authority or others in this and the water that the person takes is for him.
837. The person who digs a well to bring water out of it, or to collect water in, and who digs a hole and opens a water spring, or who digs a canal to run water through, will own, with his work, the well, the spring or the canal and the water in it, and others have no right to dispose of it without his permission, without any distinction between doing this on owned land or in wasteland. That said, digging a well in wasteland does not do more than justifying exclusion (tahjr) of it, as the digger will own it only after the completion of the ihyā’ (restoring, cultivating etc) operation.
838. Minerals, which are everything that is extracted from earth that was created in it but was not part of it, and has a value and price, are regarded as part of anfāl (spoils of war), the ownership and the disposal of these is for the state exclusively, regardless of whether they are found on the surface of the earth or beneath it, nor whether they are precious (such as gold and diamonds) or not (such as salt and kohl), nor whether they are scarce or abundant.
839. Despite the state’s ownership of minerals, it is possible for individuals to own them according to the following rules:
1- Minerals that are exposed on the surface of the earth or at a small depth beneath the surface are known as ‘exposed minerals’; these minerals are owned, actually and completely, by their owner as a result of his ownership of the land, although the state has the right to interfere in exceptional cases to take control of that particular mineral for considerations related to the public interest of society. However, if the land is a wasteland, then the minerals (in it) are freely allowed to all people.
2- Minerals that are found deep inside the earth, beneath land that is owned, are not the property of the landowner, and he cannot extract it unless he has the permission of the Islamic authority; also, the extractor – after that permission – has to secure the permission of the landowner to enter and dig in it, so that if he did this without his permission, he would not own what he extracted unless he reached a mutual agreement with the landowner, as a precaution, otherwise, they have to turn to the Islamic authority. However, if the land is a wasteland, in this case no one has the right to extract anything from it unless they have the permission of the Islamic authority, and permission to take whatever it comes out of it to the amount specified by the permission.
840. The surface of the sea, also the great rivers, are considered publicly free and it is allowed for people to benefit from them in various ways whether swimming, fishing, transport, living on a boat, a wooden building or any other construction that is suitable as a house, or in other ways. Also, it is acceptable to own parts of them by carrying out ihyā’, or the minerals and precious stones or other things such as salt or ambergris or the fish and animals that are caught there etc.
All what we mentioned is a primary ruling (al-hokm al-Awwali) that is usually the case in the normal circumstances of the actions of individuals and groups; however if the matter attains a degree of importance – as in our times – then there are international laws which apply to some of these matters and the Islamic authorities have to consider how to act according to the interests involved and in line with the acceptable international regulations.
Epilogue
Roads and public amenities
841. Since benefiting from the public roads is a right for all people, it is not allowed for an individual or a group to use any part of them for their private benefit, such as building a wall, installing a sitting bench, selling goods or the like. However, it is allowed for individuals or private or governmental organisations to improve the road by introducing whatever can make it better or increasing the pedestrian’s benefit from it, such as by planting trees, building pavements, installing lighting poles or traffic signs and the like, provided that they do not harm pedestrians.
842. Using public premises must be limited to its specified function. Two cases may apply: first, if the premises were made exclusively for certain function, such as mosques for prayers and other acts which are commonly practised in mosques, it is not allowed to benefit from it for things that contradict or negatively affect the original purpose, or if land has been assigned exclusively to leisure, it is not allowed to use it as a car park or cemetery; the second, if using it for purposes other than its original specified function would disturb the public order, such as if people have agreed to regard a place as a sports ground, it is not allowed for anyone to make it into a rubbish dump; hence, it is obligatory to respect the agreement and abide by it when it is a question of an important public amenity used by the people for that specified function, whether the specifying party was private or governmental, and whether the government was just or unjust.
However, if the action does not affect the original specified function and does not disturb public order, such as if someone goes walking for leisure in a car park, tries to sell goods in a public park, teaches lessons in a mosque or the like, there is no objection to that.
843. If someone wishing to benefit from a public amenity was the first to go to a place, it is not allowed for another person to compete with him in that place, whether the former got the place first by his actual presence or by any way which is commonly regarded as such, such as if there is a sign of his presence like his clothes, his praying mat etc. That said, if the amenity has a major usage, such as prayer in a mosque, or a minor one, such as teaching lessons in it, in this case if someone comes first to teach in a place then someone else wants to pray in that place, it is a precaution that the teacher has to leave the place to the person who wants to pray, even if there is enough space for praying in another place; it is also more appropriate for a person who wants to pray on his own to go back and leave the place for others who want to pray in congregation, if there is another place for him in the mosque.