Rulings on revitalizing disused land
Question

                What constitutes revitalizing disused land (al-mawaat)? What are the rulings on that?
Praise be to Allah. 
          Al-Mawaat is that which has no soul. The meaning here 
          is land which has no owner. 
 
          The fuqahaa’ (may Allaah have mercy on them) defined 
          it as land which is not being used for a specific purpose and which 
          is not owned by anyone whose ownership is protected by sharee’ah. 
 
          Two things are exempted from this definition: 
 
          (1)Land which has come under 
          the protected ownership of a Muslim or a kaafir via purchase, as a gift 
          or any other means.
 
          (2)Land which serves the interests 
          of owners whose ownership of land is protected, such as roads, courtyards 
          and waterways, or lands which serve the interests of city dwellers, 
          such as graveyards, garbage dumps, places designated for Eid prayers, 
          woodlots and pastures. None of these may be acquired by revitalizing 
          the land.
 
          So if the land is not owned by a person whose ownership 
          is protected, and it is not serving a specific purpose, and someone 
          revitalizes it, then he becomes the owner of it, because of the hadeeth 
          of Jaabir which was attributed to the Prophet 
          
          (peace and blessings of Allaah be upon him): “Whoever revitalizes dead 
          (disused) land, it becomes his.” This was narrated by Ahmad and al-Tirmidhi, 
          who classed it as saheeh. There are other ahaadeeth which are similar 
          in meaning, some of which are narrated in  Saheeh al-Bukhaari. 
 Most 
          of the fuqahaa’ of different regions agreed that possession of disused 
          land may be taken by revitalizing it, although they differed as to the 
          conditions attached to that, except for the disused lands of the Haram 
          (sanctuary of Makkah) and of ‘Arafaat, which cannot be taken possession 
          of by revitalizing them, because that would make it too difficult to 
          perform the rituals and because he would be taking land which may have 
          to be used during the Hajj. 
 
          Revitalizing disused land may take several forms: 
 
          (1)If a person encloses it 
          with a solid wall to keep others out, of the kind that is usually used 
          for that purpose, then he has revitalized it, because the Prophet 
          
          (peace and blessings of Allaah be upon him) said: “Whoever encloses 
          land with a wall, it becomes his.” This was narrated by Ahmad and Abu 
          Dawood from Jaabir, and classed as saheeh by al-Jaarood; a similar report 
          was narrated from Samurah. This indicates that enclosing the land is 
          one of the things by which a person earns the right to ownership. What 
          should be borne in mind is what the word haa’it (wall) refers to in 
          linguistic terms; if a person merely places stones, piles of dirt or 
          a small wall around the land which does not keep anyone out, or he digs 
          a ditch around it, then he does not take possession of it, but he will 
          have more right to revitalize it than anyone else, and he is not permitted 
          to sell it unless he revitalizes it.
 
          (2) If he digs a well 
          on the disused land and reaches water, then he has revitalized it. If 
          he digs a well but does not reach water, then he does not take possession 
          of the land thereby, but he will have more right to it than others, 
          because he has started to revitalize it.
 
          (3)If he brings water to the 
          disused land from a spring or river, then he has revitalized it thereby, 
          because the water is of more benefit to the land than a wall.
 
          (4)If he drains water from 
          disused land which was covered with water, because of which the land 
          was not suitable for farming, and he drains the water so the land then 
          becomes fit for that use, then he has revitalized it, because this is 
          of more benefit to the land than the wall by building which, according 
          to the report, one takes possession of the land.
 
          Some of the scholars think that revitalizing disused 
          land should not stop there; rather the matter should be referred to 
          ‘urf (custom) and what the people count as revitalizing land, because 
          through this revitalizing process he will become the owner of the land. 
          This was the view of a group of Hanbali imams and others, because sharee’ah 
          made revitalizing the land the condition for taking possession of it, 
          but it did not define precisely what was meant by revitalizing. So we 
          should refer to what is regarded as revitalizing land according to custom. 
           
 
          The Muslim ruler has the right to give land to one who 
          will revitalize it, because the Prophet 
          
          (peace and blessings of Allaah be upon him) gave land to Bilaal ibn 
          al-Haarith al-‘Aqeeq, he gave land in Hadramawt to Waa’il ibn Hajr; 
          and he gave land to ‘Umar, ‘Uthmaan and a number of the Sahaabah. But 
          the recipient does not become the owner of the land just because he 
          has been given it, unless he revitalizes it, but he has more right to 
          it than others, so if he revitalizes it, it becomes his, and if he is 
          unable to revitalize it, the ruler can take it back and give it to someone 
          else who is able to revitalize it. ‘Umar ibn al-Khattaab (may Allaah 
          be pleased with him) took back land from those who were unable to revitalize 
          it. 
 
          Whoever reaches a permissible thing first – apart from 
          disused land – such as game [animals or birds for hunting] or wood, 
          then he has more right to it. 
 
          If water that is permissible for everybody (i.e., water 
          that is not owned by anybody) passes through people’s lands, such as 
          a river or the water of a wadi, then the owner of the higher land has 
          the right to use the water for irrigation and to withhold it until it 
          reaches the ankles, then he should let it flow to people further on, 
          and so on in turn. The Prophet 
          
          (peace and blessings of Allaah be upon him) said, “Irrigate (your land), 
          O Zubayr, then withhold the water until it reaches the walls between 
          the pits round the trees” (agreed upon). ‘Abd al-Razzaaq quoted Mu’ammar 
          al-Zuhri as saying, “We looked at the words of the Prophet 
          
          (peace and blessings of Allaah be upon him), ‘then withhold the water 
          until it reaches the walls between the pits round the trees,’ and it 
          came up to the ankles.” In other words, they worked it out from the 
          story and found that it came up to the ankles, so they made that the 
          standard for deciding how much the first one should take, then the next 
          one, and so on. Abu Dawood and others narrated from ‘Amr ibn Shu’ayb 
          that the Prophet 
          
          (peace and blessings of Allaah be upon him) ruled concerning the waterway 
          of Mazoor (a well known wadi in Madeenah) that the (owner of the) higher 
          (land) should withhold the water until it reached the ankles, then the 
          (owner of the) higher (land) should let it flow to the lower (land). 
 
          But if the water is owned, it should be divided among 
          the owners based on the size of their land, and each of them may dispose 
          of his share as he wishes. 
 
          The leader of the Muslims has the right to protect the 
          grazing lands of the flocks belonging to the Bayt al-Maal (treasury) 
          of the Muslims, such as horses used for jihad and camels given in charity, 
          so long as that will not harm the people by making things difficult 
          for them. Ibn ‘Umar (may Allaah be pleased with him) narrated that the 
          Prophet 
          
          (peace and blessings of Allaah be upon him) protected (the land of) 
          al-Naqee’ for the horses of the Muslims. It is permissible for the ruler 
          to protect the grass of disused lands for the camels given in charity, 
          the horses of the mujaahideen, the cattle given as jizyah (tax paid 
          by non-Muslim subjects of the Islamic state) and lost animals, if there 
          is a need for that and if that will not cause hardship to the Muslims.