What has been already said in the book in regard to a person not owning a spring he uncovers, was established on the basis of reason, which is opposed to the well-known view which holds that he becomes its owner. This well-known view should be adopted if there is a consensus on it. In the absence of a consensus, there is room for arguments against the view and its basis. There are several arguments that can be considered, including these:

a) A spring is an outgrowth of his property. Therefore, if a man digs a land and discovers spring therein, the ownership will be legally his because it is an outgrowth of his property and as long as the land is his, whatever emerges from it will also be his.

Our reply is that a spring cannot be regarded as part of the growth of the land, but is a wealth present therein. The relationship between them is that of a container and its content. Thus it cannot be equated to the relationship between a principal object and its natural product, to which the Shari’ah stipulates the right of the possession as an extension of the ownership of the principal. Examples of this are the relationship between a hen and her egg and that between a tree and its fruit.

b) The meaning of the texts implying the permissibility of the sale of (the right to) the use of spring (shurb) like the report of the tradition by Sa’id al-A’raj (the lame) wherein the Imam is stated to have permitted the sale of a canal. Had it not been a (private) property its sale would not have been permissible.

Our reply to this is that the permission for selling is more general than the ownership. An entitlement to an object is sufficient for the validity of a sale. Thus the sale might have been in view of the right that belonged to the person in the case of the canal, whereby this right may be transferred to the buyer so that he becomes more entitled to it than anyone else just as the seller was.

The assignment of the sale to the land itself does not negate this on the ground that the sale equally, if it was in respect of the right to the original or to its ownership, concerns only the entitled or the owned (thing) not with the right or ownership itself, as is clear. So reports of traditions of the permissibility of selling the canal upon its completion do not imply anything more than the entitlement.

c) The rules on rehabilitation of a wasteland are applicable to discovery of springs.

It may be argued that the text “he who rehabilitates a wasteland, the land is his”, only shows rehabilitation work as being the preparatory cause (sabab) for giving its inhabitant private right to the land, not to what it contains - like the water present therein - to which the term ‘land’ (soil) cannot be applied. Furthermore it does not signify more than giving the person who rehabilitates the land a right to the land, according to the opinion of ash-Shaykh at-Tusi as we have already learnt.

d) By uncovering a spring and taking possession, the person owns it since ownership of every natural asset is gained by acquiring possession.

Our reply to this is that there is no authentic text implying that possession is the basis for ownership.

e) It is the established prevalent local practice (as -siratul-’uqalaiyyah).

Our argument against this is that there is a possibility of proving the invalidity of this practice, and that the right is no more than just an entitlement to use or priority over others (in term of the right to use). In this respect there is very little doubt. Furthermore, the prevailing local customary practice does not constitute a hujjah (an argument or evidence) in itself. It becomes a hujjah only when it is discovered that the customary practise is approved by a legitimate legislator.

There is usually only one way of discovering the sanction of the legislator. It is the absence of any restriction such that it can be said that had he not sanctioned it, he would have restricted it. Therefore, before inferring from the prevailing local customary practice, it is necessary to determine that there have been no restrictions enforced against it.

But this should not be asserted when there exists a report of a tradition that implies some sense of restriction, even when the sanad (chain of authority) of the tradition is incomplete. Inasmuch as it was probable that there was some restriction from the legislator, it is sufficient for the determination about the rejection of the customary practice. Although a weak tradition cannot constitute a legitimate argument, but it would be deemed sufficient on the whole in all cases to invalidate the legal view drawing support from the prevailing local customary practice and to prevent its application. This is a general point that should be considered in the overall inference from the prevailing local customary practice.

Because of this, we may state that the few traditions that imply prohibition of access to the water by other users, or denial of the right to surplus water to others, or non-permissibility of sale of a canal after the person who no longer needs it, lead at least to the probability of the existence of restrictions that were incompatible with complete ownership (of the water sources).