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

neighbour’s land.

• The discussions of muslim jurist regarding to the topic:

– Hanafi school: Majallah states: (Othman Islamic Civil Code of 1876). Abu Yusuf: the land’s 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 Hazm mentions:

– 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/Syafi’i:

– 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:

� زرع �� أرص ��م ���� إذ��� ): ص(�ل ر��ل ا� •�%�. -! � ا-,رع +�ء و)�د &%�! �$#"! .

– If anyone sows in other people’s 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:

: �94ز 678 أن 4"�3ف �� %1 ا-��� �0 إذ�! •

• No one is permitted to exercise any right in

another’s property without the latter’s

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 another’s 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:

�� ا->;ن –ا-�9از ا-<�&� 4=

– (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 another’s

property with ease without legal justification

and permission. If he does so, he shall be

liable for compensation and damages.