TRESPASS TO LAND

IN ISLAMIC LAW
A FEW KINDS OF TRESPASS OF LAND
IN ISLAMIC LAW OF TORT
1. Trespass on the surface and on the subsoil
of the land.
2. Trespass on the highway
3. Remaining on thenland.
4. Trespass of airspace.
5. Trespass ab initio
Trespass on the surface and subsoil of
the land
According to Islamic law of tort ,regarding this
topic :
The possession of land carries with it possession
of the subsoil, and airspace above.
For example: It is considered trespass if a person
digs a tunnel horizontally from his land into his
neighbours land.
The discussions of muslimjurist regarding to
the topic:
Hanafi school: Majallah states: (Othman Islamic
Civil Code of 1876). Abu Yusuf: the lands owner is
to prevent the digger from this and he claim from
him the expenses required to level the digging in
his land. The plaintiff also is entitled to damage an
pecuniary compensation for the damage
sustained in his land by digging it.(such as
astructure to be demolished over it and so on)
Maliki School:
The ulama have unanimously agreed that
whoever cultivates tress of date palm or fruit
trees or any plants on the land of another, is
ordered to take the out.
Syafii school: al-Syairaziy explains more detail:
If a person found (either a mine or buried
treasure) in a land of another, it is owned by its
owner and (if it has been dug out of that land) he
shoul return it to the owner of the land.
Hanbali school: (Ibn Rajab cites):
Everthing which comes out of the land of an owner is
owned by the owner.
Zahiri school: Ibn Hazmmentions:
The mineral rights of any landlord who discovers
deposits of precious materials on, or in his land, as
iron, tin, gold, silver, aluminium, any other precious
metal, rubies, crystal, or oil belong to him. The
government may not claim any ownership of such
items discovered in a private property.
Joseph Schacht : the same sense cited:
A;so, the owner of the ground has an exclusive right in
trees that grow in it, and its alluvion(lumpur). ..the
mine belongs to the owner of the ground, to the
finder only if the ground has no owner.
In brief: based on their opinions, they agreed that
the general rule that persons other than the
owner of the ground have no any right of
usufruct and the like to the ground of another
without lawful permission.
Trespass on the highway
Highway : a piece of land for passage from
one place to another place. Which is built and
maintained by the authority.
According to Muslim jurists: Hanafi/Syafii:
All the people have the right of passing on the
highway provided that it used under the condition
of safety to each other among them.
The right of passage being shared among the
whole community.
Al-Nawawiy:
It is forbidden to make use of a public way that
connects between two places in such a manner as
to obstruct the passage. Obstructing the public
passage or way is considered trespass.
In brief:
It is forbidden to condone the projecting of a balcony
or wing to any public way :
It is forbidden to construct a bench upon the public
road, or plant a tree on it.
All these actions could be put under the torts
of trespass to the public road or highway, and
they should be prevented.
Remaining on land
Islamic law recognizes :
A person such as a hirer is to give up the thing
hired when the contract of hire comes to end. It
means, using the thing hired (such land, car, etc)
when the period of hire ends is considered as
forbidden action if it exists in disposition against
the possession of another without his consent or
without legal right. Or in other hand, the hirer
could be put as a trespasser or tortfeasor by the
law of tort.
Trespass by placing objects on land
Hadist regarding above topic:
- ,- ' ) :( +- ,- , -
---- ,'= - - ' - ' ,' .
If anyone sows in other peoples land without
their permission, he has no right to any of the
crop, but he may have what it cost him.
Legal maxim and the articles of Majallah
which could be related to the hadis above:
- `- ,' ='- --, -=` ,=, `
No one is permitted to exercise any right in
anothers property without the latters
permission.
Article 906 -907 - 909 .
Trespass of airspace
Majallah has stated: whoever owns a piece of
land is owner of what is above it.
Removing or cutting off the quantity extended
is compulsory even though it does not cause
any injury or harm by reason of interference
with anothers ownership without permission.
Trespass Ab initio
Trespass ab initio arises where a person
lawfully enters upon the property of another,
under license of the law, and then abuses his
license by doing some tortuous act.
Trespass ab initio can be known based on the
application of a legal maxim:
'--' '-, =-' ,='
(Legal permission negates tortious liability)
It could be said that any action which goes beyond
the legal permission is restricted whatever the
case.
Example:
In case of hire, if a herer does what is contraty to
what is allowed or agreed upon of the contract by
going beyond what was agreed, he must be liable
to pay compensation. For example, if an animal is
injured by loading weight of iron on it, when it
was hired to carry so much weight of olive, the
hire is responsible.
Underlining the example above, it can be
conceived that a person who has been
authorized by law to carry out his task, cannot
abuse it or go beyond such license or
authority by doing something that exceeds
the permission given to him, which he has no
right to do so.
conclusion
The protection of property is very important
weather in Islam or English law of tort.
No one could trespass onto anothers
property with ease without legal justification
and permission. If he does so, he shall be
liable for compensation and damages.