Food Sources: Earth, Water, and Air - Food Culture and Health in Pre-Modern Islamic Societies - page 49

for irrigation. The manner of use is estab-
lished by the agreement of the co-owners.
The construction of mills and bridges,
etc., requires the consent of all the co-
owners. If a mill has been legally built on
the stream of a third party, the owner of
the stream cannot divert the water except
with the permission of the owner of the
mill. The use of the water of wells and
artificial reservoirs belongs exclusively to
those who made them, and others may
not use their water for irrigation. The use
of the water of springs is also the exclusive
right of the owner of the land in which the
spring lies. The general view of the · īī
fuahā appears to be that anāt s, springs
and wells situated in private property, or
made in dead land with the intention of
reclaiming the land, belong to the person
or persons who made them and that they
can be transmitted by sale and inheritance
and can be constituted into waf . There
was not, however, unanimity of opinion
on this. Some, including Muammad b.
al-asan ūsī, maintain that the water of
a well, anāt or canal does not become the
property of whoever dug the well or made
the anāt or canal, and that such actions
only give a right of priority in the use of
the water.

of Yazd were divided, it would seem that
their ownership was highly fragmented.
Their constitution into waf prevented
further fragmentation.

Dead lands
The revivification of dead lands ( iyā
al-mawāt ) normally involves the irrigation
of the land. Thus al-Māwardī states that
land to be revivified for cultivation must
be irrigated if it is dry, and drained if it
is marshy. Revivification confers own-
ership, and canals dug to bring water
to dead lands belong to those who dug
them, and wells or anāts made in dead
lands in order to revivify them belong to
those who made them. If irrigated with
u ª r water, revivified land paid u ª r , and
if reclaimed with ¶ arā ¡ water, ¶ arā ¡ .
Al-Muai, discussing the conditions
for the revivification of dead lands, states
that there is no ª arī text governing these
and that reference is to be had to custom.
If the intention is the cultivation of the
land, ownership is established either by
ta ¡ īr , or by bringing water to the land
by a water-wheel or some similar method.
New canals and anāts to bring irrigation
water to dead lands are subject to the laws
governing arīm.

Transmission and sale of water rights and
water sources
Most jurists permit the transmission
of water rights and water sources, so far
as they are private property. From this,
it follows that water rights often become
highly fragmented. The jurists also permit
the constitution of water rights and water
sources, so far as they are on private prop-
erty, into waf , Many anāts and canals
and rights to a share of the use of various
sources of water have been so constituted.
The Yazd region is particularly illustra-
tive of this practice. From the number
of shares into which many of the anāts

arīm
The ownership of landed property
involves also a right over the land which
borders it, where this is necessary for the
full enjoyment of the property. So far
as irrigation is concerned, this is of vital
importance in respect of springs, streams,
anāts and water channels. Accordingly,
“borders” are laid down for such forms
of property, within which a third party
may not undertake new irrigation works,
though some jurists lay down that “bor-
ders” can only exist in land to which no
one has a prior right. The extent of the
“borders” varies according to the nature