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NMHR-761. New Mexico Historical Review. Vol 76. No. 1. Jan 2001. Albuquerque, NM. This newly designed issue contains the following articles:

Sharing the Shortages; Water Litigation and Regulation in Hispanic New Mexico, 1600-1850. Malcolm Ebright. (excerpt shown below)

Contesting History, The Unpublished Manuscripts of Benjamin Reed. Doris Meyer

Tierra Mestiza, Tierra Sagrada; an Indo-Hispano Heritage Reveled. Essay by Enrique Lamarid, Photos by Miguel Gandert.

Sharing the Shortages:
Water Litigation and Regulation in
Hispanic New Mexico, 1600-1850

Disputes over water in the Southwest and in Central Mexico have a long history. Indigenous people were fighting over land and water before the arrival of the conquering Spaniards. The Spanish continued to fight over water with the Indians and among themselves. Battles between Spaniards had a different character than did struggles between Spaniards and Indians. There seemed to be an understanding that the aggressive tactics used against Indians were unacceptable against a fellow Spaniard. Blows were sometimes exchanged between Spaniards, as documented in cases from Spain and Central Mexico, but the preferred tactic was to simply take more water than was allowed and wait to see what happened.¹ In New Mexico there are numerous references in the cases to threats of violence, but in the end most disputes were resolved by water-sharing regimes.²

The tradition of fierce determination in defense of one's water rights in New Mexico led to the saying "whiskey is for drinking and water is for fighting."³ But this study of New Mexico water disputes reveals more bluster than blood. What is also revealed more often than not is a tightly choreographed dance where both sides marshall all the arguments they can muster in support of their claims to water, knowing that the final decision will probably recognize everyone's needs. No party will get all the water.

What were the rules by which the contended-for water was allocated? Knowing the criteria the alcaldes and governors used to divide the water will reveal how the balance of power between Spaniards and Indians and between elite Spaniards and their poorer neighbors was negotiated. New Mexico was a remote frontier outpost where lawbooks and lawyers were rarely found. The law, especially as to water rights, was usually composed of decisions in actual cases, not some obscure law in the Recopilación or some blanket characterization of water rights law in modern terms.⁴

The study of water litigation in Spanish and Mexican Period New Mexico has been stimulated by the water rights adjudication suits filed by the New Mexico State Engineer. Books and articles by historical experts in these cases have added substantially to our knowledge about water rights in New Mexico and the Southwest.⁵ Earlier works have covered the subject of water allocation in Central Mexico and Spain, providing models with which to compare water allocation in New Mexico,⁶ while recent books on the related subject of New Mexico land grants have led to an understanding of the interaction between land and water.⁷ The unpublished reports of historical experts in water rights adjudication cases are another rich source of material dealing with water allocation in New Mexico.⁸

The focus of this article is the criteria used for making water allocation decisions in water disputes and local ordinances, especially during water shortages. Some of the cases examined deal solely with Hispanic acequias, some with Pueblo Indian acequias, and a few relate to water allocation between Spaniards and Pueblo Indians. The period covered begins with the earliest available records at the time of the settlement of New Mexico by Spaniards under Juan de Oñate in 1598, to the occupation of New Mexico by Americans under General Stephen Watts Kearny in 1846. I have gathered available documents dealing with water distribution in New Mexico during this period and tried to analyze the factors used in making water allocation decisions.⁹ To understand the claims made by parties competing for water and the arguments supporting those claims, it is also necessary to understand the historical background of each case and the relative location of the parties on the stream system. The approach followed here is to delve as deeply as possible into the specifics of each case including the geographical, biographical, and legal details that are relevant.

Studies of water rights litigation in Colonial Mexico yield differing results depending on the region studied. Sonya Lipsett-Rivera reviewed numerous irrigation lawsuits in Puebla, mostly between large hacienda owners and indigenous communities. She found that it was almost impossible for indigenous communities to share water with large haciendas because of the vast quantities of water required by the haciendados' crop of choice: sugar cane. Moreover, once an upstream user illegally constructed new dams to divert water, it was difficult to fight such usurpations in court because of the excessive time and expense required. So the preferred strategy of indigenous communities was to prevent such upstream diversions before they became a fait accompli.¹⁰ For instance, the indigenous community of San Miguel Tilapa was able, through swift defensive action, to prevent the hacienda San Juan Bautista Colón from building cajas (reservoir from which water was distributed) above them to divert the Ahuehueyo River. But this case was the exception.¹¹

In New Mexico both Spaniards and Pueblo Indians also used the strategy of prevention of upstream settlement. Both Santa Clara Pueblo and the vecinos (Hispanic residents) of Ranchos de Taos were able to obtain upstream grants of land in order to control upstream irrigation.¹² Spaniards and Indians alike realized that it was better to keep new settlers out in the first place than to try to assert prior use claims, especially when water was scarce. Since prior use claims almost never led to an award of exclusive use, once an upstream user was in place the needs of all irrigators were considered, generally resulting in a regimen of water-sharing.

Lipsett-Rivera found indigenous communities to be astute in defense of their water rights against overwhelming odds. Indian communities would use the courts when necessary, but also resorted to self-help when the process of litigation was too slow. Communities found they had a better chance of success in court if they joined with other communities to fight a water appropriation by a wealthy haciendado (owner of a large agricultural or stock-raising estate). Sometimes however, the initial solidarity of the communities gave way to bickering and divisiveness as litigation dragged on for decades. That is what happened when three Indian villages joined together to fight the haciendado Martín Calvo in the latter decades of the eighteenth century. When one of the villages was wiped out by disease, the other two battled over the share of the abandoned village until the claimants' wives asked the viceroy for a final decision to end the litigation. The women complained that their husbands were away from home so much pursuing the case that their crops were dying from lack of tending, not lack of water.¹³

Lipsett-Rivera documents numerous instances where indigenous communities used the judicial system to preempt Spanish strategies that would limit the natives' future access to water. These included Indian attempts to enforce contracts with Spaniards for water rental and agreements with Spaniards to clean Indian acequias. These indigenous strategies were designed to prevent a claim of a servitude (similar to adverse possession) that would allow Spaniards to receive a share of available water in a future repartimiento (division of water between Spaniards and Indian communities).¹⁴ These tactics were not usually effective in the long run because of the practical concerns of meeting existing needs in most repartimientos. Yet, unlike the experience in Northern Mexico, Lipsett-Rivera found that "although plaintiffs claimed that they had a dire necessity for water in order to survive, the longest tenure of resources without any legal challenge was the most secure claim to irrigation."¹⁵

Lipsett- Rivera seems to be saying that prior use was more important than need in the cases she studied, but elsewhere in the book she makes clear that this condition was true only for the early colonial time period and for the region of southern Puebla. Lipsett-Rivera believes that "the doctrine of prior appropriation prevailed in Mexico as it did in Puebla during the colonial period," although she bases this on secondary evidence. Actually the system of Hispanic water law was not appropriative. Prior appropriation is a modern term, not found in the Hispanic cases. Under prior appropriation, the oldest users get all the water needed, trumping more recent users who might get no water in times of scarcity. Prior use on the other hand was just one factor to be considered along with other criteria such as need. The system of Hispanic water law was not appropriative.¹⁶ In any case Lipsett-Rivera's basic conclusion is sound: water allocations between haciendas and indigenous communities "had to reflect a certain understanding of fairness, past use, or simply the balance of power. When this equilibrium was forgotten and trampled over without due process, sabotage or sometimes violence resulted."¹⁷

Conclusion

Water allocations in Hispanic New Mexico generally involved competition between the two competing principles of prior use and need/equity. Prior use was often raised as an argument by the first settlers, while considerations of need and equity were put forth by irrigators who settled later. These later settlers would typically claim that their survival depended on being able to irrigate their crops, particularly their gardens. The claim made by those who lacked prior use was that available water should be apportioned equitably to those who needed it to irrigate their gardens and fields, especially in times of scarcity.

Usually the principle of need/equity prevailed over prior use, so that each side was allowed some irrigation water. The nature of the need/equity criterion led to an outcome of water-sharing, whereas the prior use argument had at its core an element of exclusivity which was foreign to New Mexico's water regulations and decisions. Spanish Colonial and Mexican water litigation reveals a flexible, community-based water allocation system in New Mexico. It could easily be a matter of life and death if the system did not work, and a time of drought was a time of testing the cohesion and cooperation of a community. From digging of the acequia to taking turns irrigating, the level of a community's cooperation could determine its viability and survival.¹⁸ This was especially true in the northern part of New Spain where the country's aridity made water one of the most precious resources. But community was also precious. A rigid winner-take-all system was inimical to community solidarity, and without community there was no surviving the harsh realities of the frontier.¹⁹

The concept of water sharing is still carried out on many of New Mexico's community acequias. Taos acequias have obtained official sanction for their customary water-sharing regimes based on a 1991 court hearing before special master Frank Zinn. One of the acequia commissioners at that hearing testified "We share water based. . . on need. If we feel that a field needs some water, we can help that person. . . those are the customs that were developed and used by our ancestors."²⁰

The cases and regulations reviewed here tend to corroborate that statement. While New Mexico irrigators may have fought over water during times of drought, in the end the water allocation regime they followed was one of "sharing the shortages."

The author wishes to thank the following people for their assistance; Daniel Tyler, Michael Meyer, Rick Hendricks, Richard Salazar, and Helene Boudreau.

Footnotes

1. Sonya Lipsett-Rivera, To Defend Our Water with the Blood of Our Veins: The Struggle for Resources in Colonial Puebla (Albuquerque: University of New Mexico Press, 1999), 89-90.

2. For a case where violence was threatened see Arroyo Seco v. Taos Pueblo and El Prado, testimony of Rafael Gallegos, Quintana v. Leon, Taos County Civil Cause No. 343 (1887), Transcript of Testimony, p. 11. Legal Files, Taos, Southern Pueblos Agency, Albuquerque discussed in Malcolm Ebright, Land Grants and Lawsuits in Northern New Mexico, (Albuquerque: University of New Mexico Press, 1994), 57.

3. John O. Baxter, Dividing New Mexico's Waters, 1700-1912 (Albuquerque: University of New Mexico Press, 1997), passim. The "water is for fighting" aphorism is on the back cover.

4. Several authors have made the mistake of applying modern water allocation terms like "prior appropriation" to water allocation problems in Spain and her colonies. The doctrine of prior appropriation allows water to be claimed by anyone who can put it to beneficial use. It was adopted in the West to encourage the development of irrigation and its core concept 'first in time is first in right' paralleled the way in which miners established property rights in minerals in the public domain." Stephen F. Williams, "The Law of Prior Appropriation: Possible Lessons for Hawaii," National Resources Journal 4 (October 1985): 913. Theodore Downing states that "the Mexican state follows the doctrine of prior appropriation." Theodore E. Downing, "Irrigation and Moisture-Sensitive Periods: A Zapotec Case," in Theodore E. Downing and McGuire Gibson, Irrigation's Impact on Society (Anthropological Papers of the University of Arizona, Tucson: the University of Arizona Press, 1974), 113. A review of the evidence he cites discloses a misunderstanding of the term "prior appropriation." Downing refers to a system where every irrigator received a "fixed number of hours. . . on a first come-first served basis," which appears to be a water sharing regime based on equity/need and prior use. Downing, "Zapotec Irrigation," 117-18. Lipsett-Rivera follows Downing's statement regarding prior appropriation. Lipsett-Rivera, To Defend Our Water, 25 (see note 16 for more on the prior appropriation confusion).

5. Michael C. Meyer and Michael M. Brescia, "The Treaty of Guadalupe Hidalgo as a Living Document: Water and Land Use Issues in Northern New Mexico," NMHR, 73 (October 1998): 321-345; John O. Baxter, Dividing New Mexico's Waters, 1700-1912 (Albuquerque: University of New Mexico Press, 1997); Daniel Tyler, "The Spanish Colonial Legacy and the Role of Hispanic Custom in Defining New Mexico Land and Water Rights," Colonial Latin American Historical Review (hereinafter CLAHR), 4 (Spring 1995): 149-65; Tyler, "Underground Water in Hispanic New Mexico: A Brief Analysis of Laws, Customs, and Disputes," New Mexico Historical Review, (hereinafter NMHR), 66 (July 1991): 287-301; Tyler, The Mythical Pueblo Rights Doctrine: Water Administration in Hispanic New Mexico (El Paso: Texas Western Press, 1990); and Tyler, "Ejido Lands in New Mexico," in Ebright, ed., Spanish and Mexican Land Grants and the Law, (Kansas: Sunflower University Press, 1989), passim; Michael C. Meyer, Water in the Hispanic Southwest: A Social and Legal History (Tucson: University of Arizona Press, 1984); and Malcolm Ebright, "Manuel Martinez's Ditch Dispute: A Study in Mexican Period Custom and Justice," NMHR 54 (January 1979): 21-34.

6. Michael E. Murphy, Irrigation in the Bajío Region of Colonial Mexico (Boulder: Westview Press, 1986); William B. Taylor, "Land and Water Rights in the Viceroyalty of New Spain," New Mexico Historical Review, 50 (July 1975), 189-212; Thomas F. Glick, The Old World Background of the Irrigation System of San Antonio, Texas (El Paso: Texas Western Press, 1972); and Thomas F. Glick, Irrigation and Society in Medieval Valencia (Cambridge, Massachusetts: The Belknap Press of Harvard University Press, 1970).

7. Malcolm Ebright, Land Grants and Lawsuits in Northern New Mexico (Albuquerque: UNM Press, 1994); Daniel Tyler, "Ejido Lands in New Mexico," in Ebright, ed., Spanish and Mexican Land Grants and the Law, (Kansas: Sunflower University Press, 1989); Charles L. Briggs and John R. Van Ness, eds., Land, Water, and Culture: New Perspectives on Hispanic Land Grants (Albuquerque: University of New Mexico Press, 1987), Victor Westphall, Mercedes Reales: Hispanic Land Grants of the Upper Rio Grande Region (Albuquerque: University of New Mexico Press, 1983); and G. Emlen Hall, Four Leagues of Pecos: A Legal History of the Pecos Grant, 1800-1933 (Albuquerque: University of New Mexico Press, 1984).

8. Daniel Tyler, "Land and Water Tenure in New Mexico: 1821-1846" (Report on file in New Mexico v. Aamodt, No. 6639, Federal District Court for New Mexico, 1979); Michael C. Meyer and Susan M. Deeds, "Land, Water, and Equity in Spanish Colonial and Mexican Law: Historical Evidence for the Court in the Case of the State of New Mexico vs. R. Lee Aamodt, et al.; John O. Baxter, Spanish Irrigation in Taos Valley (Santa Fe: New Mexico State Engineer Office, 1990); Baxter, Spanish Irrigation in the Pojoaque and Tesuque Valleys During the Eighteenth and Early Nineteenth Centuries (Santa Fe: New Mexico State Engineer Office, 1984): Iris H. W. Engstrand, "Historical Analysis of the Development of the California Pueblo Water Right Doctrine", (Report prepared for Martinez v. Las Vegas); and Hans W. Baade, "The 'Pueblo Water Rights' of the City of Las Vegas, New Mexico," (Report prepared for Martinez v. Las Vegas); William B. Taylor, "Colonial Land and Water Rights of New Mexico Indian Pueblos,'' (unpublished report on file in New Mexico v. Aamodt, No. 6639, Federal District Court for New Mexico, 1979).

9. The approach is similar to that followed by Michael Meyer in Water in the Hispanic Southwest, chapter 8 and by Daniel Tyler in his report on water allocation in the territorial period of New Mexico, "Water Conflicts and the Courts in Territorial New Mexico."

10. Sonya Lipsett-Rivera, "Indigenous Communities and Water Rights in Colonial Puebla: Patterns of Resistance," The Americas, 48 (April 1992): 478-79.

11. Sonya Lipsett-Rivera, "Water and Social Conflict in Colonial Mexico: Puebla: 1680-1810." (Ph. D. diss., Tulane University, 1988), 75.

12. See pp. 00-00 for a summary of these and other attempts to prevent upstream irrigation in New Mexico.

13. Lipsett-Rivera, "Water and Social Conflict in Colonial Mexico: 78-9.

14. Lipsett-Rivera, "Indigenous Communities and Water Rights," 479-80.

15. Lipsett-Rivera, To Defend Our Water, 25.

16. For a more complete discussion of the use of the term "prior appropriation" by Lipsett-Rivera see Michael M. Brescia's review of To Defend Our Waters with the Blood of our Veins: The Struggle for Resources in Colonial Puebla, in Colonial Latin American Historical Review, 9 (Winter 2000): 143-45. Brescia states that the misunderstanding of the term prior appropriation "reveals the difficulties of viewing the Hispanic water regimen through a modern lens tinted by common law notions of water rights." He correctly points out the Lipsett-Rivera (along with other scholars) probably confused prior appropriation with prior use. It is worth noting that while the doctrine of prior appropriation was not part of Hispanic civil law neither was it a prominent part of English common law, as was the doctrine of riparian rights (the idea that a landowner has a property right in the water that flowed through his land). M. Catherine Miller, Flooding the Courtrooms: Law and Water in the Far West (Lincoln: University of Nebraska Press, 1993) pp. 10-11. Peter Reich has shown how the courts have been partially responsible for the idea that prior appropriation had some basis in Hispanic law: "Arizona judges justified the doctrine [of prior appropriation] by citing Hispanic law, despite their awareness of appropriation's inconsistency with actual Spanish and Mexican community water-sharing. Peter Reich, "The Hispanic Roots of Prior Appropriation in Arizona," Arizona State Law Journal, 27 (Summer 1995): 650.

17. Lipsett-Rivera, "Water and Social Conflict in Colonial Mexico," p. 82.

18 Examples of communities that have died for lack of cooperation and/or lack of water are La Liendre downstream from Las Vegas on the Rio Galliñas, Lynn I. Perrigo, Hispanos: Historic Leaders in New Mexico (Santa Fe: Sunstone Press, 1985), 28, and the 1765 Los Quelites land grant that was revoked by Governor Tomás Vélez Cachupín because of factionalism and lack of zeal in making the settlement a success. Ebright, "Breaking New Ground: A Reappraisal of Governor Vélez Cachupín and Mendinueta and their Land Grant Policies," CLAHR (Spring 1996): 214-16.

19. "The philosophical focus of the Spanish and Mexican laws was on the reconciliation of conflict and the accommodation of conflicting interests, serving the greater interest in the community and its harmony." David J. Langum, Law and Community on the Mexican California Frontier: Anglo-American Expatriates and the Clash of Legal Traditions, 1821-1846 (Norman: University of Oklahoma Press, 1987), 271.

20. Testimony of Candido Valerio, Santa Fe, May 20, 1991. State of New Mexico v. Eduarto Abeyta and Celso Arellano, Civil Cause No. 7896, U. S. District Court for the District of New Mexico, quoted in José A. Rivera, Acequia Culture: Water, Land, and Community in the Southwest (Albuquerque: University of New Mexico Press, 1998), 168.

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