The Stronger Position Regarding Tree Branches Extending into a Neighbor's Property
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Question:
What is the stronger position regarding branches and roots that extend from one person's property into his neighbor's property? And what harm results from that? What is the grade of the hadith mentioned by Shaykh al-Islam Ibn Taymiyyah (may Allah have mercy on him) concerning the uprooting of a date palm whose owner 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: He is compelled to remove them; 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 the requirement of the Islamic legal evidence, 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).
There is no doubt that harmful roots and branches are included in the harm from which one is prohibited, so it is obligatory to prevent the neighbor from that.
The third: That not compelling removal leads to the continuation of disputes and litigation, and it may lead to something more severe than that, such as fighting and what is more severe than fighting. So it is obligatory to cut off that and put an end to it. The Islamic legal evidence, which is difficult or hard to enumerate, indicates the obligation of blocking the means that lead to corruption, disputes, and litigation, or what is more severe than that.
As for the hadith of the owner of the date palm, Abu Dawud narrated it from the hadith of Muhammad ibn Ali ibn al-Husayn from Samurah ibn Jundub, and there is a concern regarding its chain of narration; 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 (Sharh al-Arba'in), in his discussion of the thirty-second hadith, corroborating narrations for this hadith. They all, along with the hadith we mentioned in the first point, indicate the preference for the position 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 compulsion; to cut off the source of harm and dispute and to respect the right of the neighbor.
What is the stronger position regarding branches and roots that extend from one person's property into his neighbor's property? And what harm results from that? What is the grade of the hadith mentioned by Shaykh al-Islam Ibn Taymiyyah (may Allah have mercy on him) concerning the uprooting of a date palm whose owner 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: He is compelled to remove them; 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 the requirement of the Islamic legal evidence, 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 جارهThere is no doubt that harmful roots and branches are included in the harm from which one is prohibited, so it is obligatory to prevent the neighbor from that.
The third: That not compelling removal leads to the continuation of disputes and litigation, and it may lead to something more severe than that, such as fighting and what is more severe than fighting. So it is obligatory to cut off that and put an end to it. The Islamic legal evidence, which is difficult or hard to enumerate, indicates the obligation of blocking the means that lead to corruption, disputes, and litigation, or what is more severe than that.
As for the hadith of the owner of the date palm, Abu Dawud narrated it from the hadith of Muhammad ibn Ali ibn al-Husayn from Samurah ibn Jundub, and there is a concern regarding its chain of narration; 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 (Sharh al-Arba'in), in his discussion of the thirty-second hadith, corroborating narrations for this hadith. They all, along with the hadith we mentioned in the first point, indicate the preference for the position 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 compulsion; to cut off the source of 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.