Community acequias and the pueblo water right: what survived of Spanish and Mexican water law in the United States
Two Spanish-Mexican water institutions outlived the cession of 1848 into American law, and the standard United States treatise on western water rights shows how unevenly. New Mexico's community acequias were carried into territorial statute and are governed by it still. The pueblo water right, by which American cities claimed the water of the Spanish pueblos they succeeded, rests on meagre Spanish authority and a judicial presumption - and irrigation in New Mexico is older than Spain there.
Why this wins its question: Writing about acequias divides into two literatures that do not check each other. One is cultural and celebratory, in which the acequia is Moorish-Spanish heritage and its survival a romance; the other is Anglo-legal, in which western water law begins with the gold miners and Spain is a footnote. Neither quotes the reference work that United States courts and state engineers actually use. This object is built entirely from the pages of that work - Hutchins for the Department of Agriculture - and it therefore reports the Spanish contribution at the size the American legal record supports, in the treatise's own words: the community acequia as a statutory organisation with rights derived from Spanish and Mexican law and protected continuously since 1848, quoted from the statute sections and from Snow v. Abalos; and the pueblo water right as a doctrine whose only declared authority is a line of California cases resting on "meager Spanish-Mexican authority" and "a mere judicial presumption". It puts the two facts a defensive account would omit in the first and last claims rather than in a caveat: irrigation in New Mexico "long antedated the coming of the Spaniards", with Espejo praising Pueblo ditches at Acoma in 1582-1583, and Spanish-Mexican water law "made little if any impression" on California law outside the pueblo cases. It also keeps the cost attached to the achievement in the same sentence the achievement appears in - Onate's ditch of 11 August 1598, dug with "some 1,500 Indians" assisting - and it records the two New Mexico decisions in which pueblo claims failed for want of a royal grant, which is the strongest available evidence that these courts were not simply inventing Spanish law to suit American cities.
Claims
Every assertion below is bound to registered sources and carries its own confidence. Weight them; do not treat the page as uniformly authoritative.
The frame is a change of sovereignty over an inhabited irrigated country. The area of the present State of New Mexico was part of the Mexican State of Sonora and was ceded to the United States by Mexico in 1848 at the conclusion of the war, by the Treaty of Guadalupe Hidalgo (9 Stat. 922); the Territory of New Mexico was established on 9 September 1850 (9 Stat. 446, ch. 49); and the proclamation admitting New Mexico to statehood was signed on 6 January 1912 (37 Stat. 1723). Sixty-four years passed between the cession and statehood, and the water institutions at issue here ran continuously through all of it.
The first thing the treatise says about irrigation in New Mexico is that it is not Spanish in origin. "Development and use of water for irrigation in New Mexico long antedated the coming of the Spaniards." The chroniclers of Coronado's expedition refer to the cultivation of cotton and corn by the Pueblo Indians of the Middle Rio Grande Valley; Espejo, writing of his explorations of 1582-1583, "speaks with approval of the irrigation ditches supplying the pueblos in the general region of Socorro and above, and refers to irrigation by the inhabitants of Acoma 'with many partitions of the water' in a marsh 2 leagues from the pueblo"; other writers have referred to prehistoric irrigation elsewhere in the region; and "the community ditch was a usual adjunct of many Indian pueblos in New Mexico." Any account of a Spanish contribution here begins after that sentence, not before it.
What Spanish settlement added, on the treatise's account, was a dated institutional layer built with drafted indigenous labour, and both halves are in one passage. Juan de Onate placed a community at San Juan, New Mexico, near the junction of the Rio Chama and the Rio Grande, in 1598; "On August 11 of that year work was begun on an irrigation ditch, the Spaniards being assisted in their labor by some 1,500 Indians." Other colonies were located from time to time, "and the community acequia was the original or the eventual instrument for providing water for most of the irrigated land. Many of these organizations still exist."
The acequia is a legal person in the modern statute book, not a folk survival. The "community acequia" or "public acequia" is an irrigation ditch organisation, "acequia" being used synonymously with "ditch" in the statutes and court decisions of New Mexico; it is "an ancient institution in the Southwest, with greatest concentration in New Mexico"; and some such organisations antedated acquisition of the region by the United States. Legislative provisions relating to them "occupy a considerable number of sections in the statutes" - the treatise cites N. Mex. Stat. Ann. sections 75-14-1 to 75-14-61 and 75-15-1 to 75-15-10 (1968) - and the old established acequias were granted certain exemptions from the operation of the water administrative law.
An American state supreme court described the institution as belonging to the people who were there before the Americans, and said that the territorial legislature had written their customs into its own law. In Snow v. Abalos, 18 N. Mex. 681, 691, 692-693, 140 Pac. 1044 (1914), the New Mexico Supreme Court observed that this institution "is peculiar to the native people living in the part of the Southwest acquired from Mexico, having been a part of their system of agriculture and community life long before the American occupation"; and that after the Territory was organised, the legislature "provided for the government of community acequias, and doubtless incorporated into the written law of the Territory the customs theretofore governing such communities."
The continuity is documented at the moment of the transfer itself and immediately after it. The old community acequias "derived their rights from the Spanish and Mexican laws and customs. In the enjoyment of these rights they have been protected by the Territorial and State governments ever since the cession of the region to the United States." The Kearny Code, promulgated during the war with Mexico, provided in its first section for continued enforcement of existing laws concerning watercourses; and the first Territorial legislature (N. Mex. Laws, 20 July 1851) declared that the course of ditches or acequias already established should not be disturbed, established as public ditches those courses of water theretofore known as such, and allowed all inhabitants to construct private or common acequias for their water supplies. Ditches begun after the cession took their rights from Territorial or State law, but antedating or postdating it, the organisations were administered on the same basis.
The second institution is a municipal right of a different order. The pueblo water right, which appeared in the jurisprudence of both California and New Mexico, "is the paramount right of an American city as successor of a Spanish or Mexican pueblo to the use of water naturally occurring within the old pueblo limits to supply the needs of the city and its inhabitants." It originated in early decisions of the California Supreme Court and was adopted in 1959 by the Supreme Court of New Mexico. As portrayed by the California decisions it is expansive: the right grows with the number of inhabitants however much that increases and with extension of the city limits by annexation of land outside the original pueblo; it attaches to all surface and ground waters of the stream that naturally flowed through the original pueblo, including tributaries, from source to mouth; it is generally superior to riparian rights of other proprietors and to rights of appropriators; it is available whenever and to whatever extent the city is ready to exercise it regardless of how extensive existing uses by others may be; and "no method by which it can be lost to the city has yet been declared by the California Supreme Court."
The counterpoint to any Spanish pedigree for that right is printed in the same treatise, and it is severe. "the only declared authority for adoption of the pueblo rights doctrine in New Mexico is the California decisions, which themselves ... are predicated upon meager Spanish-Mexican authority and, with respect to the pueblo's monopolistic right, upon a mere judicial presumption." Of the New Mexico decision itself - Cartwright v. Public Serv. Co. of N. Mex., 66 N. Mex. 64, 343 Pac. (2d) 654 (1959), decided by a vote of three to two, holding that Las Vegas as American successor to the Mexican Pueblo of Las Vegas had succeeded to a pueblo water right in the Gallinas River with a priority of 1835 - the treatise says the court "did not base its decision on any specific Spanish or Mexican authority; in fact, if the court actually searched for such authorities, or if it found and examined any, there is nothing in its opinion that so suggests." The doctrine is best read as an American judicial construction attributed to Spanish law rather than a demonstrated Spanish rule.
Where the doctrine was tested against the actual documents of Spanish and Mexican government, it twice failed, and the grounds are instructive about what the Spanish system required. In 1914 the New Mexico Supreme Court held, as to the residents of the town of Tularosa, that no exclusive right on their part could be sustained under Spanish and Mexican laws as a "pueblo right", "because there had been no Spanish or Mexican pueblo at the townsite and hence there could be no pueblo water right" (State ex rel. Community Ditches v. Tularosa Community Ditch, 19 N. Mex. 352, 376, 143 Pac. 207). In 1937 the same court held that notwithstanding occupancy of a "pueblo" at the villa de Santa Fe by the Spanish authorities, "no grant had been made to the pueblo by the King, and that without a grant there could be no pueblo water right" (New Mexico Products Co. v. New Mexico Power Co., 42 N. Mex. 311, 315, 77 Pac. (2d) 634). A royal grant, not mere Spanish presence, was the thing that had to be shown.
The most important limit on this subject is that the Spanish legacy in western water law is narrow, and the treatise states it flatly for the largest of the states concerned. "On the whole, Spanish-Mexican water law made little if any impression on the water law of the State of California other than with respect to water rights of American cities that succeeded Spanish and Mexican pueblos." There appears to be nothing in the water laws of either California or Texas to suggest that a principle of prior appropriation prevailed under Spanish or Mexican sovereignty, although the Arizona and New Mexico courts agree that appropriation existed in those jurisdictions before American sovereignty; "California's water appropriation philosophy stemmed directly from the customs of the gold miners in the Sierra Nevada"; the California courts based their riparian concepts on the common law adopted by the legislature in the year of admission and accorded lands held under Spanish and Mexican grants riparian rights "neither greater nor less" than lands acquired from the United States; and Wiel, writing in 1911, said that "the writer knows of no California water-rights traced back to any special private grant or concession of waters from the Mexican Government." The durable Spanish-Mexican inheritance is the New Mexico community acequia, not a general Spanish foundation for the law of the West.