Forcing one who does not accept reconciliation to remove the harm he causes
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Question: What is the stronger opinion regarding branches and roots that extend from one person’s property to his neighbor’s property, and the harm that results from them? And what is the grade of the hadith mentioned by Shaykh al-Islam Ibn Taymiyyah (may Allah have mercy on him) about uprooting the palm tree of the person who refused to accept compensation, because it caused harm to his neighbor, the owner of the orchard?
Answer: I have examined the issue mentioned, and I found that the author of al-Insaf mentioned two positions in it, and others mentioned two opinions in the issue:
The first is that the owner is not forced to remove them.
The second is that he is forced, and if he refuses, he is liable for the harm that results from them.
It became clear to me that the second opinion is stronger for several reasons:
The first: That this is what the evidence of the Shari'ah requires, such as his saying (peace and blessings be upon him):Sunan Ibn Majah 2340Da'if (Darussalam), and what came in its meaning.
The second: His saying (peace and blessings be upon him):Sunan Abi Dawud 5154Sahih (Al-Albani), and there is no doubt that the roots and branches that harm the neighbor are included in the harm from which one is prohibited; so it is obligatory to prevent the neighbor from that.
The third: That not forcing him leads to the continuation of the dispute and litigation, and it may lead to something more severe than that, such as fighting and what is more severe than that. So it is obligatory to cut that off and put an end to it. The evidence of the Shari'ah, which is difficult or hard to enumerate, indicates the obligation of blocking the means that lead to corruption, dispute, and litigation, or what is more severe than that.
As for the hadith of the owner of the palm tree, Abu Dawud narrated it from the hadith of Muhammad ibn Ali ibn al-Husayn, from Samurah ibn Jundub, and there is a concern in its chain; because it is not known that Muhammad ibn Ali heard it from Samurah, rather it appears that he did not hear from him, as al-Hafiz al-Mundhiri pointed out in Mukhtasar al-Sunan. However, al-Hafiz Ibn Rajab mentioned in his commentary on the Forty Hadiths, in the discussion of the thirty-second hadith, corroborations for this hadith. They all, along with the hadith we mentioned in the first position, indicate the preference of the opinion we mentioned, which is compelling the owner to remove the roots or branches that caused the harm. If the harm is not removed except by uprooting the tree, it is uprooted by force against him; to cut off the source of the harm and dispute, and to respect the right of the neighbor.
Answer: I have examined the issue mentioned, and I found that the author of al-Insaf mentioned two positions in it, and others mentioned two opinions in the issue:
The first is that the owner is not forced to remove them.
The second is that he is forced, and if he refuses, he is liable for the harm that results from them.
It became clear to me that the second opinion is stronger for several reasons:
The first: That this is what the evidence of the Shari'ah requires, such as his saying (peace and blessings be upon him):
It was narrated from 'Ubadah bin Samit that the Messenger of Allah (ﷺ) ruled: “There should be neither harming nor reciprocating harm.”
لا ضرر ولا ضرارThe second: His saying (peace and blessings be upon him):
he who believes in Allah and in the last day should not harm his neighbor
من كان يؤمن بالله واليوم الآخر فلا يؤذ جارهThe third: That not forcing him leads to the continuation of the dispute and litigation, and it may lead to something more severe than that, such as fighting and what is more severe than that. So it is obligatory to cut that off and put an end to it. The evidence of the Shari'ah, which is difficult or hard to enumerate, indicates the obligation of blocking the means that lead to corruption, dispute, and litigation, or what is more severe than that.
As for the hadith of the owner of the palm tree, Abu Dawud narrated it from the hadith of Muhammad ibn Ali ibn al-Husayn, from Samurah ibn Jundub, and there is a concern in its chain; because it is not known that Muhammad ibn Ali heard it from Samurah, rather it appears that he did not hear from him, as al-Hafiz al-Mundhiri pointed out in Mukhtasar al-Sunan. However, al-Hafiz Ibn Rajab mentioned in his commentary on the Forty Hadiths, in the discussion of the thirty-second hadith, corroborations for this hadith. They all, along with the hadith we mentioned in the first position, indicate the preference of the opinion we mentioned, which is compelling the owner to remove the roots or branches that caused the harm. If the harm is not removed except by uprooting the tree, it is uprooted by force against him; to cut off the source of the harm and dispute, and to respect the right of the neighbor.
Source
binbaz.org.sa
The Arabic text is copied verbatim from the original source, without any edits.