Water Diversion Rights [Archives:1998/09/Law & Diplomacy]

March 2 1998

By: Dr. Salah Hadash

In Yemen, there is a distinct separation between water diversion rights that were acquired centuries ago and water use rights which of benefaction or usufruct that can be acquired for a specific period of time or even seasonally. The former were acquired in old times when a person or a group of persons began to utilize the water to develop agricultural land with no objections by or conflicts with others, and with no interruption in their use of water for appreciable periods of time. Such rights exist in Yemen (and most neighboring countries) for surface water, springs and infiltration galleries.
In contrast, the rights of benefaction are a relatively recent development or approach. They exist in countries in which the water is declared as State property to be managed through a permit system.
As pointed out earlier, diversion rights cover four aspects of a water right; vis-a-vis: the basis/conditions for:

a) initiation of the diversion right; i.e., the right to divert water from the source,
b) changes in the right (by selling or transfer),
c) protection of the right (protection zones), and
d) losing the right.

a) Basis for Initiation / Acquisition of the Diversion Right
Constitutionally, water diversion rights are a kind of concession granted by the State to the user to exploit a natural resource. They are supposed to be regulated by law (article 18).
The Saria’ah point of view regarding basis for initiation of diversion right is summarized in article (1367) of the civil law, which states that:

Civil Article 1367: resnullius water is the right of whoever reaches it first, and in a quantity which suffices him, even if taken from within a property (of others). It is prohibited to enter a neighborÕs property to take water except by permission of the owner or his consent or by custom, and it is not allowed to harm the owner as a result of taking the water from his property except (if taken) for human drinking or to clean-up for praying.
Thus, this article establishes that:
a) any “non-appropriated” water may be claimed for appropriation, even if taken from within a property of others (private or public),
b) claims are recognized by seniority (first in time, first in service),
c) the quantity of claim is determined by sufficiency to the appropriator,
d) it is prohibited to enter a neighbors land to take water without the ownerÕs permission or consent, unless such entry is based on a custom, and
e) any diversion of water from a source should not cause any harm to existing users/owners, unless the water is taken for drinking or to clean-up for praying.

The above article doesn’t distinguish between surface and groundwaters. That is, it appears to be applicable to any water; be it in a cistern, from a spring, or from an aquifer. However, for groundwater, the diversion right may be initiated and acquired by purchasing land and drilling a well (civil law article 1366).

Civil Article 1366: …the drilling of a well to receive water is considered an appropriation by containment (and hence an ownership), provided that the water comes from a resnullius (source) and it passed in the (natural) waterway.
The fact that landownership gives the owner the right to tap the underlying aquifer may be deduced from civil law’s article 1163 which grants the owner of a land full control over everything above and beneath its surface to any “useful” height and depth, which is in fact the conviction of most people.

Civil Article 1163: landownership is inclusive of what is above and beneath it to whatever height or depth is useful to benefit from it (the land). It is permitted, by agreement, to separate the ownership of land surface from the ownership of what is above or beneath it, provided that no contradiction occurs with the regulations outlined in the law.
Again, notice the contradiction between the exclusive rights granted to a landowner in the civil law and the Constitution’s declaration of all natural resources in the underground as State property. This point is further discussed in the section on legal issues.
Moreover, initiation of a water right may be undertaken during the process of acquisition of “non-owned” land. That is, during the reclamation phase of public land or any land which is not owned (see article 1185).

Civil Article 1185: lands which are not privately owned… are resinullus (mubah) and may become privately owned by “bringing life to it/or reclaiming it.” However, it is prohibited to bring-to-life land which is part of the protection zone (Harim) of a spring, a well, a flood course, a tree, or a building …except by the owner. Determination of the protection zone of each of these types should be according to article 1252 or in accordance with custom.
Custom also recognizes the right to initiate a water right in land not owned as private property. Article (58) of the Document of Seventy Rules grants this right provided that the new well is outside the protection zone which surrounds an existing well.

b) Changes in the Diversion Right (selling or transfer of right)
In Saria’ah, there are two view points regarding the appurtenance of water rights to land. One group of Islamic schools considers that the water right belongs to the land itself not to the landowner. Hence; the water right is inseparable from the land and is included with it whenever the land changes owners (by selling or inheritance). This inseparability applies even though a landowner may not explicitly mention the transfer of the water right with the land in the purchase document.
The other group of schools requires explicit statement of the transfer of water right with the land. Otherwise, the water right remains a property of the original landowner even though he sold the land.
According to civil law, the irrigation right is a type of Servitude Right. Hence, it is inheritable from benefactor to successor(s) and its use may be written out in wills. However; this right cannot be sold separately from the land, neither can it be conceded or rented except if this is in accordance with a recognized custom (article 1370).

Civil Article 1370: the right to irrigate is inheritable and its use may be donated in wills, but it cannot be sold except with the land, neither can it be donated or rented except according to an established/recognized custom.

c) Conditions for Losing the Diversion Right
Since the water right (diversion and use) is appurtenant to the land, then it cannot be lost. However; the actual use of that right may cease when:
i) the land is washed away or is buried under a thick sediment cover which was deposited by heavy floods. Both cases are common for lands along wadi channels of the inter-mountain wadis,
ii) the intake structures are destroyed and washed away,
iii) the benefactor himself abandons the use,
iv) the source of water (well or spring) is depleted.