The Spanish Element in Texas Water Law 9780292772106

The Spanish element in Texas water law is a matter of utmost importance to many landholders whose livelihood is dependen

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The Spanish Element in Texas Water Law

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The Spanish Element in Texas Water Law


The Spanish Element in





U N I V E R S I T Y O F T E X A S P R E S S , A U S T I N 1959

Library of Congress Catalog Card No. 58-59851 © 1959 by Betty Eakle Dobkins Manufactured in the United States of America by the William Byrd Press, Inc.

To my father and mother and to Dob


Small erections may be finished by their first architects; grand ones, true ones, ever leave the copestone to posterity. God keep me from ever completing anything. This whole book is but a draught— nay, but the draught of a draught. Oh, Time, Strength, Cash, and Patience! H erm an M e lv ille ,

Moby Dick


Preface of the Spanish element in Texas water law is now being considered in the courts of the state. T h e outcome is a matter of moment to many landholders whose livelihood is dependent upon securing water for irrigation, and to many communities, especially in the Rio Grande Valley, concerned about water supply. T h e reason for this concern is that the titles to some 26,280,000 acres of T exas’ 170,000,000 acres originated in grants made by the Crown of Spain or the R e­ public of Mexico. T h e water rights which go with these lands are, under our state laws, determined by the terms of the orig­ inal grants. For these 26,280,000 acres, the prevailing law, even in 1958, is the Hispanic-American C ivil law. T h e question of determining just what water rights were granted by the Crown of Spain in disposing of lands in Texas is more than a matter of historical interest; it is a subject of great practical importance in Texas today. T h e Spanish-law background enters directly in the case of these lands, but its influence is by no means confined to them. T h e water laws and institutions of Texas trace their roots not to the English common law, nor to the Western doctrine of prior appropriation, both of which were in time incorporated in T exas law, but primarily to the Spanish law. It is possible that a clearer recognition of this background might have saved the state much of its present confusion and chaos in water law. T

h e q u e s t io n



T h e importance of the Spanish element in Texas water law is such that few would question the validity of a treatise on the Spanish background. W hat might be questioned is why this study remained to be done in the field of history. T h e topic w ould seem to be one for experts in law and engineering— and not just ordinary experts, but specialists qualified to deal with a complex and involved subject. But neither the legal scholar nor the engineer has undertaken the task of w riting an account for the layman. Consequently, the historian fell heir to the task. T h e idea for my doing a study in some area of T exas water law came in the midst of the great seven-year drought from 1950 to 1957 and in the course of a conversation with Professor W al­ ter Prescott W ebb. Both have been powerful stimulants to thought about water. T h e more I investigated the general sub­ ject, the more I became convinced that, with all its difficulties, there were two reasons why I should attempt the study. One was my belief that the water problem, crucial to all Texas, can be solved only when the people of Texas become conscious of their imperative needs and only if they become informed and aroused enough to act. T h e second reason or justification came from a realization that water, common, universal, and ordinary as it is, has been overlooked by the historian. It is high time that this oversight be corrected. In Am erican history the significance of land, especially in terms of the frontier, has been spelled out in large letters. T h e importance of water has been recognized by only a few. A n examination of the 1954 Harvard Guide to American History illustrates this imbalance of treatment; the Guide has four entries under the index heading “ water,” four under “ irrigation,” and twenty-seven under “ land.” W ater, however, has become a critical resource, not just in Texas and the arid region, but in much of the country. W e can no longer take water for granted— either as a resource or as a nucleus of important institutions. As intimated above, the approach here is that of neither the lawyer nor the engineer, but of the student of institutions. M y aim is not that of an advocate, not to make a case in law, but to explain how institutions by which men have regulated the use



and control of water developed and how they functioned. Spe­ cifically, this study attempts to discover what water laws and institutions the Spanish brought with them to the New W orld, how these institutions evolved, how they worked, and what place they occupy in present Texas law. M any challenges arose during the course of the inquiry. T h e student of history is more accustomed to dealing with battles and elections and legislation than with the fleeing, restless, com­ mon, but vital substance, water. T h e difficulties and frustrations of trying to study water and its role in history are indeed great. L ike water itself, the institutions which men have created to control it tend to remain in flux. T h e student wishes to freeze, or dam, or impound the subject matter so he can examine it more closely, but he finds it no more possible to isolate water institutions from the whole fabric of history than to separate the water from a living plant or animal. Despite the difficulties, there have been advantages in looking at history from the per­ spective of water. For one thing, one becomes far more con­ scious of the earth around him and the processes of life. For another, he comes to realize that, while our ideas and institu­ tions have come most recently from the humid lands, where water was little thought about and considered, it has not always been so. In the long span of history, the arid lands have played a major role. T h e civilizations of the Mediterranean, from whence those of the West have come, were based in large meas­ ure on irrigation, and where there is irrigation there must be laws and customs to regulate the use of water. Besides the challenge of coping with water as a topic of his­ torical investigation, this study has reaffirmed one of the peren­ nial paradoxes of history: the past can be viewed only from the present, yet it is extremely precarious to view it in terms of the present. T h e great concern in Texas today about the nature of Spanish water law comes from present interests. T h e tempta­ tion of practicing lawyers to find in Spanish law— yes, to hunt in it— support for a present doctrine is almost overwhelming. O n the other hand, it should be obvious that the Spanish sys­ tem, developed under different institutional, historical, and



technological conditions, could only by a miracle (history re­ cords few) be identical with present laws. W hat I have tried to do is to arrive at an understanding of Spanish water law from within itself, always bearing in mind the present but not per­ m itting it to shape what is seen in the past. I may not always have succeeded in this, but I have tried to view the slow growth of Spanish law through the eyes of the Spaniards who shaped it rather than through the eyes of a modern attorney attempting to win a valuable property for his client. T h is study is offered as a small beginning of an inquiry into the nature and causes of water law and institutions. It is indeed, in M elville’s words, “ but a draught— nay, but the draught of a draught.” W hatever its shortcomings, it has contributed gener­ ously to the education of its writer. In the course of carrying out this study, I have incurred un­ told obligations which can be only inadequately acknowledged. T h e staffs of the University of Texas libraries and of the State Archives have been always helpful and have unearthed without protest items rarely requested. Special acknowledgment is grate­ fully offered to Miss Llerena Friend, Texas History Center librarian at the University of Texas, who has been both expert librarian and encouraging friend; Miss Mary Stone, chief cata­ logue librarian of the University Library, who has chased re­ peated entries through the mysteries of the catalogue with pa­ tience and even enthusiasm; and Miss Kathleen Blow, reference librarian at the University, who has given generously of her time and skill in locating references. Professor Ramon MartinezLopez provided guidance in bibliography and the results of his own researches in Spanish water law. Mr. Joe D. Carter, former legal examiner of the Texas Board of W ater Engineers, was most helpful in discussing present issues and in suggesting im­ portant sources. M y greatest debt is to Professor W alter Prescott W ebb, whose historical investigations have left an indelible mark on my own thinking and whose concern about water is responsible for this study. My intellectual debts to him are beyond computing. More important, however, was his belief


x iii

that I could carry on this study; his confidence finally led to completion what often seemed an impossible task. T h e research and writing of the study were greatly facilitated by fellowships from the University of Texas History Depart­ ment, a grant from the Southern Fellowship Fund, and a scholar­ ship from the Daughters of the Republic of Texas. I should like to express appreciation also to Professor James T aylor, chair­ man of the Division of Social Sciences at Southwest Texas State College, San Marcos, Texas, for his interest in the work, and to Mr. Frank H. W ardlaw and the staff of the University of Texas Press for their assistance in getting the study into print. T h e University of London Press graciously gave permission to repro­ duce three maps from E. D. Laborde’s Western Europe, copy­ righted by the Press. Finally, but by no means of least impor­ tance, I wish to thank my parents, my husband, and the friends whose encouragement and support have contributed far more to the completion of this study than I can acknowledge. B etty E akle D

July, 1958

o b k in s


Table of Contents P r e f a c e ............................................................................................


L ist of Spanish L an d M e a s u r e s .........................................


C h apter


T exas, W ater, L a w .........................................


Water and Texas, 3 Water Law, 73 Texas Water Law, 25 II. W ater Laws and Institutions in the A n cien tt W o r l d ............................................................. .......... •

C h apter


The Near East, 32 Roman Water Laws and Institutions, 41 Roman Water Works, 41 Roman Law, 43 Roman Water Law, 45

C h apter


D evelopm en t of W ater L aw in Spain

The Land and Its Influence on Spanish History, 59 Water Law and Institutions in Spain, 63 Ancient Period: The Romans and the Moors, 63 Development of Water Law in Medieval Spain, 70 Spanish Water Law at the End of the Colonial Period, 77




IV. Hispanic-American W ater Laws and Insti­ tutions .......................................................................................85

h apter

The Spanish Basis of Hispanic-American Institutions and Modifications in the New World, 89 New Spain: The Land and the People, 92 Hispanic-American Water Laws and Institutions: Prin­ ciples, 94 Hispanic-American Water Laws and Institutions: The Texas Experience, 102 Spanish Texas, 102 Irrigation in Spanish Texas, 103 Administration of Waters: The Role of the Royal Government, 113 Administration of Waters: Local Government, 119 C

h apter


Spanish W ater Law in Texas, 1821-1958


Spanish Land Grants in Texas, 124 Classification of Lands, 125 Validation of the Spanish Grants, 130 Major Developments in Texas Water Law, 1836-1926, 132 The Courts, 132 The Irrigation Act of 1852, 136 Motl v. Boyd and Its Significance, 139 Spanish Water Law in Texas in 1958, 146 C

V I. Rulings on Spanish Grants in Texas v . Val­ . mont Plantations ..........................................................

h apter

Bibliography Index


............................................................................. 163 181


Moisture Regions of T e x a s ............................................ Texas Annual Runoff










Comparative Increases in Population and Water Uses int Texas,


1 9 0 0 - 1 9 5 0 .....................................................

T h e Hydrologic C y c l e ..................................................... •


W et and Dry I b e r i a .....................................................

60 .


Irrigation Areas in S p a i n ..............................................




Mean Annual Rainfall of the Iberian Peninsula

Map of Sierra Gorda, 1792



Hum boldt’s Map of New Spain, 1804




faciing 94

Map of Ditches and Artesian Wells at San Antonio, 18981




Mission Ditches below San Antonio, 1898 .


The Spanish Element in Texas Water Law

SPANISH LAND MEASURES* Vara — 331/3 inches Square vara — 7.7 square feet, 0.86 square yards, or 0.00018 acre Caballeria = 108 acres Labor = 1,000,000 square varas or 1 7 7 .1 acres League = 5,000 varas or ca. 2% statute miles Square league = 25,000,000 square varas, 25 labores, or 4,428.4 acres Sitio = square league Sitio de ganado mayor — square league Sitio de ganado menor = 11,111,111 square varas or 1,968.18 acres

* Based on J. Roy Reasonover, Land Measures: French, Spanish and English Land Measures of the United States and Canada, and Virginia H. Taylor, The Spanish Archives of the General Land Office of Texas, pp.

69- 79-

I. Texas, Water, Law . . . the rain cometh down, and the snow from heaven, and returneth not thither, but watereth the earth, and maketh it bring forth and bud, that it may give seed to the sower, and bread to the eater. I s a ia h 55:10 . . . till taught by pain, Men really know not what good water's worth. B yron,

Don Juan: II, 84

W ater and T ex a s

of our experience except the air we breathe, has come to be recognized as the most critical single resource of Texas. Because it is so common and so universal a substance, water ordinarily occasions little thought or comment. When, however, it becomes superabundant and man faces the ravages of flood or when it becomes deficient and he encounters the equally deadly but more prolonged catastro­ phe of drought, men begin to think and talk and wonder about water. The more one learns about this common substance, the more he realizes that despite its commonness, water is in many ways unique. It is almost the only inorganic liquid occurring in nature and the only substance occurring in liquid, solid, and gaseous forms in nature. It has greater surface tension than any other fluid, and its solvent power is more general than that of any other fluid. In many other ways water deviates from the usual pattern of nature. In short, as a German scientist, P. H. Kuenen, has written, “water is the most extraordinary of all compounds known to science and it is precisely these departures from the normal which fit it so eminently for the dominant role W .T E R ,

t h e c o m m o n e st su bstan ce


T h e Spanish E lem ent in Texas W ater Law

it plays in the nature by which we have our being/’ 1 It is the very uniqueness of the properties of water which fits it for its crucial part in the processes of nature. “ N o other liquid, if it had chanced to be available instead of water in such quantities, could have taken over the tasks of that m edium ,” writes Kuenen. “ Even if water had deviated a little less from the normal stand­ ard for substances in the universe, our globe would have re­ mained a heavenly body as devoid of history, as dead as the moon.” 2 Man himself is composed in large part of water, about 70 per cent of his body weight being water. Thales, the father of Greek philosophy, concluded long ago when men first began to analyze the world about them that water was the ultimate reality, the underlying substance which was the basis of all mat­ ter. Modern science has proved him wrong in this conclusion, but it has shown that water is inseparably linked with all life processes. W ithout water there is no life as we know it. Texas, subject to both flood and drought, has had occasion to think about and talk about water more than have many other parts of the U nited States. Especially has this been true in the decade 1948-1958, when the worst drought in six hundred years has been ended by record-breaking floods. From quarters both high and low Texans have been told, “ W hat Texas does about water, and does quickly, w ill determine the future of its rapidly m ultiplying population and the economy which supports it.” 3 W ater, it is generally agreed, is the N um ber One problem of the state. T h e Texas water problem stems in part from nature and in part from man. N ature has contributed to the problem by the rainfall patterns which it has ordained. T h e most important single characteristic of the rainfall of Texas is its variability. T h is variability exists both as to area and time. Exam ination 1 Realms of Water: Some Aspects of Its Cycle in Nature, p. 15. This work will be cited hereinafter as Kuenen, Realms of Water. 2 Ibid., p. 20. 3 Texas Water Conservation Association, Water for Texas: Your No. 1 Problem, p. 3.

Fig. 1. Moisture Regions of Texas. Reproduced from Water Supply and the Texas Economy.


T h e Spanish E lem ent in Texas W ater Law

of a map (see Fig. 1) showing the average precipitation in Texas makes clear the tendency for rainfall to diminish as one goes from east to west in the state. T h e average annual precipitation varies from more than 50 inches in easternmost Texas to less than 10 inches at El Paso. T h e annual state average, on a county basis, is about 27 inches.4 T h e critical line is that of 30 inches, which separates the hum id east, where rainfall is generally suffi­ cient to raise crops and supply other water needs, from the subhumid, semiarid, and arid west, where rainfall is often de­ ficient.5 N ot only does the rainfall vary greatly from place to place in Texas, but it also is highly erratic from year to year. T h e m axi­ mum average precipitation recorded to date for the state as a whole is 45.6 inches, in 1919. T h e minimum state average to date is 16.2 inches, in 1917.6 T h e records for individual places show even greater extremes. Clarksville had 109.38 inches of rainfall in 1873, and in 1948, Anahuac received 98.1 inches. Ysleta’s minimum of 0.70 in 1910 is among the lowest on record, but many communities have had less than 3 inches of rainfall in a year.7 As rainfall varies from year to year, the moisture bands shift east or west across the state, m oving eastward in dry years and westward in wet years.8 T h e great variation in rainfall means also that the flow of Texas streams is highly erratic, rising to 90 m illion acre-feet in wet years and dropping to 20 m illion 4 U.S. Department of the Interior, Bureau of Reclamation, Austin Area Planning Office, Water Supply and the Texas Economy: An Appraisal of the Texas Water Problem (reprinted in Washington as Sen. Doc. 57, 83d Cong., 1st sess. [1953]), p. 48. This work will be cited hereinafter as Water Supply and the Texas Economy. 5 Walter Prescott Webb, More Water for Texas: The Problem and the Plan, p. 3. For a discussion of water in West Texas, see Sidney L. Miller, Tomorrow in West Texas, pp. 18-69. 6 Water Supply and the Texas Economy, p. 48. 7 For a table showing maximum and minimum rainfall, see Robert L. Lowry, Jr., Excessive Rainfall in Texas (Texas Reclamation Department Bulletin No. 25), pp. 131-134. 8 This pattern can be observed by examining the series of maps showing annual rainfall in the Texas Board of Water Engineers, Report, issued bi­ ennially since 1913/14.


2. Texas Annual Runoff. Reproduced from Texas Society of Professional Engineers, Water!


T h e Spanish E lem ent in Texas W ater Law

acre-feet during droughts (see Fig. 2).9 In fact, it is true that “ the one totally dependable characteristic of most T exas streams is the continual, wide, and unpredictable deviation from the average flow. W ith regard to reliable water supply on the usual Texas stream, it is usually either ‘feast or famine/ ” 10 Nature has thus fastened upon Texas a highly erratic and undepend­ able rainfall. Moreover, it is often niggardly in the amounts of precipitation it sends to much of the western portion of the state. Nature has the ultimate say about the supply side of the water problem .11 It is man, however, who determines in large measure the demand side. As man has become increasingly a machineusing, city-dwelling, comfort-loving creature, he has become an ever greater consumer of water. W ater is an indispensable in­ gredient or catalyst not only in the production of agricultural commodities but in the manufacture of many goods. For exam­ ple, one acre-foot of water is necessary to produce 200 pounds of beef or veal, 10,000 pounds of oranges, or 200 pounds of cotton lint.12 Industrial requirements are also startlingly high: 18 bar­ rels of water are necessary to refine a barrel of oil; 300 gallons of water to make a barrel of beer; 10 gallons of water to refine a gallon of gasoline; 250 tons of water to produce a ton of sul­ phate wood pulp; from 600 to 1,000 tons of water are required 9 An acre-foot of water is the amount of water necessary to cover an acre of land to the depth of one foot— 325,800 gallons. 10 Water Supply and the Texas Economy, p. 56. 11 The above discussion does not touch directly upon ground-water sources, which are an important factor in Texas’ water supply. But as ground-water supplies are dependent ultimately upon rainfall for recharge, the over-all problem remains unchanged. On ground water and its impor­ tance in Texas, see Water Supply and the Texas Economy, pp. 7, 50-51; Webb, More Water for Texas, pp. 11-16; W. L. Broadhurst, “ GroundWater Hydrology,” in University of Texas, School of Law, Water Law Con­ ferences, Proceedings, 7952-/25^ pp. 5-10; Trigg Twichell, “ Interrelation of Surface and Ground Water of Texas/’ in ibid., pp. 30-37; and Walter N. White, “Summary Report on the Survey of the Underground Waters of Texas” (mimeographed). The Proceedings of the Water Law Conferences will be cited hereinafter as Water Law Conferences, Proceedings, plus the relevant year. 12 Webb, More Water for Texas, p. 27.

Texas, W ater, Law


for each ton of coal burned in a steam power-plant.13 Cities use water for air conditioning, automobile-washing, and waste dis­ posal, to mention only a few of the more obvious and newer demands on water. T h e per-capita consumption of water tends to rise sharply in proportion to the size of towns. T h e United States Public Health Service recently reported that the average water requirements per person a day in communities of 500 or fewer is about 60 gallons, whereas the requirem ent in cities of 10,000 or more is about 180 gallons a day.14 W ater experts esti­ mate that for the country as a whole “ the per person demand is increasing at a rate of about a gallon a day annually.” T h e cur­ rent average use in the United States is 150 gallons per person per day. Scientists estimate the minimum need at 20 gallons per person per day.15 T h e greatest single user of fresh water in the U nited States is irrigation, which in 1955 consumed from 75 b il­ lion to 100 billion gallons of water a day.16 W ithin the past few decades Texas has become predominantly urban in population, increased rapidly in numbers, seen the growth of industry— especially the petroleum and chemical in­ dustries, both notorious water-users— and witnessed the rapid expansion of irrigation within its borders. According to a recent study, Texas refineries need a little more than 800 m illion gal­ lons of water a day. Besides the use of water in refining petro­ leum, it is being used in production. In the past twenty years the development of water-injection processes to improve re­ covery from reservoirs has resulted in a new and vast use of water. A bout a fourth of the present production of oil in Texas is dependent in whole or in part on the use of water flooding. 13 U.S. Department of Agriculture, Water: The Yearbook of Agriculture, *955> P- 37* 14 Ibid. 15 New York Times, March 3, 1957. On the increasing use of water, see Commission on Organization of the Executive Branch of the Government, Water Resources and Power, Vol. I, pp. 3-9; U.S. President’s Materials Policy Commission, Resources for Freedom, Vol. I, pp. 50-52, Vol. V, pp. 83-86; J. Frederick Dewhurst and Associates, America's Needs and Re­ sources: A New Survey, pp. 553-554; Karl O. Kohler, Jr., ‘Trends in the Utilization of Water/’ U.S. Department of Agriculture, Water, pp. 35-40. 16 U.S. Department of Agriculture, Water, p. 36.


T h e Spanish E lem ent in Texas W ater Law

W ater requirements are expected to double in the next decade, and it is estimated that a total of some 5.5 trillion gallons of water w ill be required eventually for secondary recovery and pressure maintenance operations in Texas oil fields.17 As of 1956, some 7 m illion acres of land were irrigated in Texas. Irri­ gation was the largest single user of fresh water in Texas, re­ quiring about 85 per cent of the total water used. Irrigated land constituted 4 per cent of the total area of Texas and 33 per cent of the harvested acreage, but produced 66 per cent of the gross agricultural income from harvested land. T h is high proportion of agricultural income from irrigated land is striking evidence of the importance of irrigation in the state. A n ominous fact in regard to irrigation in Texas is that about 65 per cent of it is dependent upon ground-water resources that are being de­ pleted.18 T h a t the use of water in Texas has been expanding rapidly in the past half-century is shown in Figure 3, which gives the percentage rate of increase of population, municipal and industrial uses of water, and irrigation use of water in Texas for the period 1900-1950. Population increased approxi­ mately threefold during this period. W ater use for municipal and industrial purposes rose to thirty times the 1900 figure, and irrigation consumption soared to fifty-five times what it had been in 1900.19 T h e prospects are that the rate of increase of water use w ill rise even more rapidly in the future.20 17 Paul D. Torrey, “ Needs and Uses of Water in the Production of Oil,” Petroleum Engineer, Vol. X X IX (January, 1957), B-83-B-98. See also Robert J. Enright, “West Texas Needs Water,” Oil and Gas Journal, Vol. 54 (No­ vember 26, 1956), pp. 50-51. 18 Data supplied by U.S. Bureau of Reclamation, Austin Area Planning Office, Austin, Texas. The rapid growth of irrigation in Texas is shown by the corresponding statistics for 1953, when some 3.7 million acres of land were irrigated compared to the 7 million acres of 1956. Irrigated land con­ stituted 2.2 per cent of the total area of Texas in 1953 compared to 4 per cent in 1956, and it made up 13.2 per cent of the harvested acreage in 1953 compared to 33 per cent in 1956. Irrigated land produced 40 per cent of the gross agricultural income from harvested land in 1953 compared to 66 per cent in 1956.— See Water Supply and the Texas Economy, pp. 7, 40. 19 Frank W. Jessen, “Industrial Water— Uses and Needs in Texas,” Water Law Conferences, Proceedings, 1952-1954, P* 7 1* 20 For estimates of water needs of four areas of Texas (the Gulf Coast,

Texas, W ater, Law


F i g . 3 . C o m p a r a t i v e In c r e a s e s i n P o p u l a t i o n a n d W a te r U se s in T e x a s , 19 0 0 -1 9 5 0 .

Lim ited supplies of water, rapidly increasing demand— here is the crux of the Texas water problem. Flood and drought are a part of the problem, and certainly action needs to be taken to protect against the ravages of each. But the new, and disturb­ ing, prospect which Texas faces in regard to water is that sup­ plies in “ normal” times w ill be insufficient to meet the needs of twenty-nine West Texas counties, the High Plains, and the Red River Basin), see University of Texas, Bureau of Business Research, Water R e­ quirements Survey: A Study of Resource Utilization, Industrial Develop­ ment Potentials, Population Growth, and Water Use (4 vols.; processed). The findings are summarized in Water Supply and the Texas Economy, pp. 28-47.


T h e Spanish E lem ent in Texas W ater Law

the cities, industries, and irrigation upon which the continued growth of the state depends. A recent study of the Bureau of Reclamation concludes that “ water supply now seems to be the controlling element of our Texas economy. . . . T oday we stand on economic dead center— there we remain until reliable water supplies are assured for our forthcoming needs.” 21 T h e roots of the Texas water problem lie in nature and man. These are both “ given” quantities in the water problem. Nature, so far as we can foresee, w ill continue to provide Texas with erratic and often insufficient rainfall. Man w ill continue to be a water-using being, and a consumer of ever greater quantities of water. If man and nature are the fixed factors in the equa­ tion, promising little hope of manipulation, it is to the unknown factor we must turn to seek a solution. T h is factor is the insti­ tutions— technological, legal, social— of water use. In the case of water, as in that of all natural resources, the resources avail­ able to satisfy human needs are the products of both nature and human culture, of the supplies which nature provides and of the devices man uses to exploit and develop nature.22 Some steps toward the solution of the Texas water problem are fairly obvious, though not necessarily easy to effect. W ater must be stored in times of plenty to be used in times of dearth. T h e superabundance of some sections may be used to meet deficits in the semiarid and arid regions. W ater must be utilized more efficiently on the soil and got more quickly into under­ ground reservoirs. T h e re-use of water can be expanded, and 21 See U.S. Department of the Interior, Bureau of Reclamation, Elements of the Texas Water Problem: The Background and Basis of a Solution to the Problem of Water Supply in Texas, Plate IX. See also Webb, More Water for Texas, p. 2, and Corwin W. Johnson, “The Water Problem of Texas: A Summary,” Public Affairs Comment, Vol. I, No. 4 (July, 1955), p. 1. 22 “Natural” resources, as Erich W. Zimmermann has pointed out, “are the joint products of nature and culture reciprocally interacting”— “What We Mean by Resources,” Texas Looks Ahead, Vol. I: The Resources of Texas, p. 8. The functional concept of resources, which Professor Zimmer­ mann has pioneered, forms one of the foundation stones of the present study. See the article cited and his World Resources and Industries, espe­ cially pp. 3-40.

Texas, W atery Law


perhaps, in time, brackish water and sea water may be converted to useful supplies economically. Pollution can be reduced, in­ creasing usable supplies. These measures call for dams, reser­ voirs, canals, water-treatment plants, and other water works. T h e best efforts of engineers, soil conservationists, municipal and industrial leaders, and government will be required to effect such advances. But if the Texas water problem is to be solved, there must be advances not only in the technology of water use but also in the institutions of water use. T h e more critical the water problem, the more important are questions of water rights and water law.

Water Law W ater law is, at best, a highly complex subject.23 M uch of its com plexity grows out of the nature of water itself. W ater is always in motion; the water in the stream at this mo­ ment w ill be gone the next. Every drop of water is part of the hydrologic cycle, the never-ending circle by which water is lifted from the seas and oceans by evaporation, falls as some form of precipitation, only to begin its ceaseless journey back to the sea through surface runoff, underground percolation, evaporation, or transpiration (see Fig. 4). T his constant movement of water sustains and supports life and carries off wastes, as the flow of blood supports life in the human body. Each man on the earth must have water to live; all men use the same source of supply, abstracting a portion of water from nature’s ineluctable cycle. These two facts have made water the resource of greatest social concern throughout man’s history.24 Because water is essential to all life, because there is only one source of supply, and because there are m ultiple uses of this common supply, men have often been competitors for it. T h e 23 This study is concerned almost exclusively with the laws relating to flowing waters, though underground waters are occasionally referred to. 24 On the properties of water, see Kuenen, Realms of Water; Thomson King, Water, Miracle of Nature; John Stewart Collis, The Moving Waters; U.S. Department of Agriculture, Water, especially pp. 1-14, 41—51; Bernard Frank and Anthony Netboy, Water, Land, and People.


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Texas, W ater, Law


One other point is worth noting, though it is more than ob­ vious. W hen water is available at the right place, at the right time, and in the right amount, almost any conceivable system of water law is workable. W hen water is not available, no system of water law can provide it. W hat an efficient, equitable, intelli­ gent system of water law can do, however, is to facilitate the optimum use of the existing supplies of water and foster the development of new water resources. W ater law can help to make the lim ited supplies of water go further and so, in effect, increase the usable quantities available. Conflicting, outmoded, and unworkable water laws thwart the efficient utilization of water, result in expensive and lengthy litigation, and block the solution of water problems. T exas’ water problem is greatly aggravated by the fact that its water law has been characterized by the turbulence and conflict which seem typical of the en­ vironment and history of the state.

T e x a s W ater L aw Texas is a land of diversity and conflict. Three natural regions meet within its boundaries: the Great Eastern W oodland, the Great Western Plains, and the Great Am erican Desert. In addition, Texas contains a seacoast stretching several hundred miles. As climatic conditions vary, woodland, plains, and desert expand or contract, breeding interm ittent conflict along their borders. T h e physical base of Texas, with its variety and conflict, has fostered the economic and cultural diversity of Texas, where the cowman and the farmer, the irrigator and the industrialist, the fisherman and the lumberman all ply their trades and sometimes fight with one another.51 But it is not the physical environment alone that has pro­ duced diversity in Texas. Texas has been the scene of cultural as well as environmental conflict. Here the Anglo-American wave of the frontier encountered the northern outposts of the Hispanic-American colonial empire. Here the individualistic, 51 See Walter Prescott Webb, “The Cultural Resources of Texas,” in Texas Looks Ahead, Vol. I: The Resources of Texas, pp. 341-346.


T h e Spanish E lem ent in Texas W ater Law

atomistic, pragmatic, materialistic, democratic institutions of the Anglo-American collided with the paternalistic, collectivistic, tradition-centered, religiously oriented ways of the SpanishAmerican. T h e farmer, planter, and trader, spawned by two centuries of experience in the eastern woodland, entered the world of the mission, villa, and presidio, the outgrowth of three centuries of occupation of the arid heart of the continent. O ut of the contest of cultures which followed emerged the institu­ tions of Texas. T exas institutions, especially in regard to land and water, had their origin in the practices of the Spanish conquistadors and padres. It was under the Spanish colonial system that settlement began and the first land grants were made. It is worthy of note that the Spanish, themselves products of an arid and semiarid land, advanced into Texas from the west and south, the arid regions, and that they brought with them institutions adapted to the “artificial” use of water. Texas water law had its begin­ nings in an irrigation-centered system. W hen M exico gained its independence in 1821, Texas passed under a new sovereignty, though the basic institutional struc­ ture remained little changed. T h e advancing Anglo-American frontier reached the eastern limits of Texas at almost the same time Texas became a province of Mexico. T h e new settlers brought with them the ideas and concepts of their English heritage and their Am erican frontier experience. T hus there arose in T exas a contest between two peoples, Anglo-American and Spanish-American, and two systems of law, the Spanish C ivil law and English common law. Judge John C. Townes has stated the outcome of this contest in the following words: T ex a s furnished a m eeting place and battleground for these two peoples and their institutions. T h e Spanish-Americans and the Spanish civil law were in possession o f the territory. T h e invasion was by the Anglo-Am ericans and the com m on law. Between the peo­ ples, the struggle was sharp, short, and decisive. T h e Anglo-A m erican was victorious. Between the systems of jurisprudence, the contest was protracted and the result a compromise. T h e com m on law u lti­

Texas, W ater, Law


mately prevailed, but its victory involved the loss of some of its most cherished doctrines,52 T h e Anglo-American settlers who won their independence in 1836 did not immediately adopt the common law, except in criminal matters.53 T h e constitution adopted in 1836 provided that “ all laws now in force in Texas, and not inconsistent with this constitution, shall remain in full force until declared void, repealed, altered or expire by their limitations,” but it called upon the Congress to introduce by statute as early as practicable the common law of England, “ with such modifications as our circumstances, in their judgment, may require.” 54 Finally, in 1840, the Congress of the R epublic enacted a law adopting the common law of England, with certain exceptions, as the rule of decision in Texas courts. Am ong the exceptions were the laws relating “ exclusively to grants and the colonization of lands in the State of Coahuila and T exas,” and also the laws relating to “ the reservation of Islands and Lands, and also of Salt-Lakes, Licks, and Salt Springs, Mines and Minerals of every descrip­ tion: made by the General and State Governments.” 55 Thus, for all lands granted in Texas before January 20, 1840, it is the Spanish Civil law, as modified by Am erican experience, which determines what rights passed to the landowner, for it is an established principle of law that “a change of sovereignty does not effect [sic\ the property rights of the inhabitants of the territory involved.” 56 For some 26,280,000 acres, scattered over 52 Pleading in the District and County Courts of Texas, pp. 61-62. 53 Plan of Provisional Government of the Consultation, Art. VI, in H. P. N. Gammel (ed.), The Laws of Texas, ,1822-189y, Vol. I, p. 540. This work is cited hereinafter as Gammel, Laws of Texas. 54 Schedule, § 1; Art. IV, § 13, in Gammel, Laws of Texas, Vol. I, pp. 1077, 1074. 55 Sec. 2, Act of January 20, 1840, in Gammel, Laws of Texas, Vol. II, p. 177. On the adoption of the common law in Texas, see Ford W. Hall, “An Account of the Adoption of the Common Law by Texas,” Texas Law Re­ view, Vol. X X VIII (June, 1950), pp. 801-826, and Clarence Wharton, “ Early Judicial History of Texas,” ibid., Vol. X II (April, 1934), pp. 311-325. 56 Miller v. Letzerich, 121 Tex. 248. See also John Sayles and Henry Sayles, Early Laws of Texas, Vol. I, pp. vi-vii, 151-153.


T h e Spanish E lem ent in Texas W ater Law

a third of the state and including much of the area of the coastal plain and the R io Grande Valley, the pertinent land law is the C ivil law of Spain in Am erica and the laws of M exico based upon it. T h is means that the water rights attached to these lands are those of the Hispanic-American law.57 Since 1840 the legal institutions of Texas in regard to land and water have been based upon both the Spanish-Mexican C ivil law and the English common law. On this dual foundation the legislature has erected a structure of statutory measures re­ lating to water. Am ong the more important of these are the irrigation act of 1852;58 the act of 1889, which declared the un­ appropriated waters of the arid region the property of the pub­ lic and provided for their appropriation for beneficial use;59 and 57 ‘‘In determining the power of the Legislature to pass laws affecting sur­ face water rights for the state generally, we must necessarily consider the effect of the grants made by each sovereignty in their relationship to the subject. Lands in Texas have been granted by four different governments, namely, the Kingdom of Spain, the Republic of Mexico, the Republic of Texas, and the State of Texas, Many millions of acres of land were granted by Spain, Mexico, and the Republic of Texas prior to the adoption by the latter of the common law of England as the rule of decision in 1840. . . . the validity and legal effect of contracts and of grants of land made before the adoption of the common law must be determined according to the civil law in effect at the time of the grants, . . . it is plain, we think, that what­ ever title, rights, and privileges the inhabitants of Texas received by virtue of land grants from the Spanish and Mexican government, which were a part of the realty itself or were easements or servitudes in connection there­ with, remained intact, notwithstanding the change in sovereignty and the subsequent adoption of the common law as a rule of decision.”— Miller v. Letzerich, 121 Tex. 248. See also Manry v. Robison, 122 Tex. 213, and au­ thorities cited in both these cases. On Spanish and Mexican titles to lands in Texas, see Dudley G. Wooten (ed.), A Comprehensive History of Texas, 1685 to i8gy, Vol. I, pp. 785-811; Harold Hoffman, “Texas Land Titles and Vested Rights,” Texas Law R e­ view, Vol. X X V (May, 1947), pp. 508-529; Virginia H. Taylor, The Spanish Archives of the General Land Office of Texas, pp. 6-30, 138-141. 58 Gammel, Laws of Texas, Vol. Ill, pp. 958-960. This act gave to the county court the regulatory powers over irrigation formerly exercised by the ayuntamiento in Spanish Texas. It remained in effect until 1911. 59 Sec. 1 of the act provided that “ the unappropriated waters of every river or natural stream within the arid portion of the state of Texas, in which by reason of the insufficient rainfall, irrigation is necessary for agri­ cultural purposes, may be diverted from its natural channel for irrigation,

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the act of 1895, which modified and extended the act of 1889.60 By these last two measures Texas formally adopted the aridregion doctrine of prior appropriation. Other laws of signifi­ cance in the history of Texas water law are the Burgess-Glasscock A ct of 1913, establishing the Board of W ater Engineers and providing for the initiation of appropriations by permit from the board,61 and the conservation amendment of 1917, which declared the conservation and development of the natural resources of the state, including flood control, irrigation, recla­ mation, and development of water power, to be public rights and duties, and gave the legislature power to pass all laws neces­ sary to accomplish these purposes.62 In 1917, also, the legislature repealed the 19 13 act and adopted a new water code, which was copied in large part from W yom ing and Nebraska statutes.63 T h e present water code of Texas is this act of 19 17 , as repeatedly amended. T here have been concerted efforts to recodify and sim plify Texas laws relating to surface waters, especially since 1945, but so far these efforts have been unsuccessful. T h e need for such a recodification is widely recognized.64 domestic, and other beneficial uses; Provided, that said water shall not be diverted so as to deprive any person who claims, owns, or holds a possessory right or title to any land lying along the bank or margin of any river or natural stream of the use of the water thereof for his own domestic use.”— Texas Legislature (21st Legis., reg. sess.), General Laws, pp. 100-103. 60 Sec. 1 of the act provided that “ the unappropriated waters of the ordi­ nary flow or underflow of every running or flowing river or natural stream, and the storm or rain waters of every river or natural stream, canyon, ra­ vine, depression or watershed within those portions of the State of Texas in which by reason of the insufficient rainfall or by reason of the irregu­ larity of the rainfall, irrigation is beneficial for agricultural purposes, are hereby declared to be the property of the public, and may be acquired by appropriation for the uses and purposes and in the manner hereinafter pro­ vided.”— Texas Legislature (24th Legis., reg. sess.), General Laws, pp. 21-28. 61 Texas Legislature (33d Legis., reg. sess.), General Laws, pp. 358-379. 62 Art. 16, § 59, Texas Constitution. 63 Texas Legislature (35th Legis., reg. sess.), General Laws, pp. 211-243. 64 For brief accounts of the Texas law of surface waters, see Harbert Davenport, “Development of the Texas Law of Water,” in Vernon’s Anno­ tated Revised Civil Statutes of the State of Texas, Vol. XXI, pp. xiii-xxxix; Harbert Davenport and J. T . Canales, The Texas Law of Flowing Waters; Victor M. Bouldin, “The Law of Surface Water Rights in Texas,” Water Law Conferences, Proceedings, 1952-1954, pp. 96-102; J. E. Sturrock, “Dis-


T h e Spanish E lem ent in Texas W ater Law

This, then, is the background of Texas water law. Arid, semiarid, and humid regions, with different water needs and dif­ ferent interests. Irrigator, industrialist, m unicipal user— all needing ever greater quantities of water. A system of law incor­ porating both Hispanic-American and Anglo-American ele­ ments and both riparian and prior appropriation systems of water law. Is there any wonder that the history of Texas water law has been marked by controversy, complexity, conflict, con­ fusion? In no matter is there greater conflict, controversy, and con­ fusion than in that of the nature of the water rights attaching to the lands granted under Spanish and M exican sovereignty. T h e reasons are not far to seek. T h e original laws involved were written in a foreign tongue and were products of a culture which differed markedly from that familiar to most of the law­ yers and judges called upon to interpret them. T h e translations of the laws which eventually became available at best left much to be desired, and all too few Texas jurists had the language facility or time to work with the originals. If the language and cultural barriers have proved a source of confusion, the fact that the lands involved are among the most important irrigable lands in Texas, with values ranging into millions of dollars, ex­ plains the intensity and seriousness of the conflict.65 W hat were the water laws and institutions of Spain in Am er­ ica? T h e attempt to answer this question leads one through the history of many peoples and lands. As Texas water law is rooted cussion on Legislative Problems in the Field of Riparian and Appropriative Rights,” ibid., pp. 242-247. 65 The Spanish and Mexican background of Texas water law was studied by A. A. White, dean of the University of Houston College of Law, and W ill Wilson, associate justice of the Texas Supreme Court at the time he made the study and present attorney general of the state of Texas, in the course of re-examining the leading case of Motl v. Boyd. Their findings, which are of great interest and importance, are set forth in A. A. White and W ill Wilson, “ The Flow and Underflow of Motl v. Boyd,” Southwestern Law Journal, Vol. IX (Winter, 1955), pp. 1-26, and (Fall, 1955), pp. 377— 433; W ill Wilson, “A Reappraisal of Motl v. Boyd,” in Water Law Con­ ferences, Proceedings, 1955, pp. 38-43; A. A. White, “The Flow and Under­ flow of Motl v. Boyd,” in ibid., pp. 44-60.

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in Spanish law, so Spanish law is rooted in the laws of Rome and the customs of the Moors. Roman law, in its turn, was the generalization of the experience of the Mediterranean peoples through centuries. Rome was not built in a day, and neither was the water law which the Spanish left as a heritage to modern Texas.

II. Water Laws and Institutions in the Ancient World A n d it shall come to pass, if ye shall hearken d ili­ gently unto my commandments which I command you this day, to love the Lord your G od, and to serve him with all your heart and with all your soul, that I will give you the rain of your land in his due season, the first rain and the latter rain, that thou mayest gather in thy corn, and thy wine, and thine oil. A n d I w ill send grass in thy fields for thy cattle, that thou mayest eat and be fu ll. Take heed to yourselves, that your heart be not deceived, and ye turn aside, and serve other gods, and worship them; and then the L ord 's wrath be kindled against you, and he shut up the heaven, that there be no rain, and that the land yield not her fruit; and lest ye perish quickly from off the good land which the L ord giveth you. D euteronom y

1 1:1 3 -1 7

W ill anyone compare the Pyramids, or those other useless though m uch renowned works of the Greeks with these aqueducts, with these many indispensable structuresf Se x t u s J u l iu s F r o n t in u s

T h e Near East L i i k e t h e o r i g i n o f c i v i l i z a t i o n i t s e l f , the begin­ nings of m an’s efforts to protect himself against floods, to drain swamplands, and to irrigate the dry and lifeless soil are lost in the mists of prehistory. W hile it is not possible, therefore, to describe man’s first attempts to control water, virtually all stu­ dents of the origin of civilizations agree that the beginning of

A n c ien t W orld W ater Laws and Institu tio n s


civilization was closely linked with water problems.1 From per­ haps 7000 B .C . N eolithic man in the Near East was confronted with both droughts and floods as soon as the glaciers melted and withdrew northward. T h e grasslands where he had lived began to turn into deserts, while the swamps and mud flats along the rivers became less formidable. His choice was one of moving in search of other grasslands or seeking to drain the swamps along the N ile and the lower Tigris-Euphrates Valley. Some chose to descend into the valleys, and in these valleys emerged the civili­ zation that we have. T h e great cultures of Egypt and Mesopotamia were depend* ent on the rivers for their very existence. T h e annual overflow replenished the fertility of the soil and thus made possible a permanent agriculture as well as bountiful yields which brought a new level of material well-being. T h e rivers, too, provided the moisture necessary in these areas of lim ited rainfall. But as im­ portant as the role of the rivers in the material realm was their influence in the development of institutions. For to build and maintain dikes and canals, to regulate the release of the critical supplies of water, to keep records so that inundations could be anticipated and planned for, to divert disastrous floods— all this required co-operation among men and communities. Thus, the necessity of controlling water was closely bound up with the beginnings of political and social institutions.2 T his is not to say that “ irrigation produced civilization.” T h e intriguing ques­ tion of origins which has attracted man’s thought and specula­ tion throughout history is not so easily answered. But it is to say that, so far as present studies show, man’s attainment of civilization occurred along with his construction of irrigation and drainage works and the two seem to have been causally 1 Henri Frankfort, The Birth of Civilization in the Near East; V. Gordon Childe, New Light on the Most Ancient East; Arnold J. Toynbee, A Study of History, Vol. I, pp. 302-318. 2 Frankfort, The Birth of Civilization in the Near East, p. 36; Ellen Churchill Semple, Influences of Geographic Environment on the Basis of RatzeVs System of Anthropo-Geography, pp. 323-330; Childe, New Light on the Most Ancient East, p. 24; R. J. Forbes, Man the Maker, pp. 19-22.


T h e Spanish E lem ent in Texas W ater Law

related. A recent writer on Egypt has said apropos of this matter: It cannot be proved or disproved at present, but it is possible that the important changes in agriculture through irrigation were an immediate forerunner of historic times and, in fact, produced the historic times. This does not mean that the digging of large canals produced history; the process was far more complex than that. It does mean that man reached a certain stage of maturity or of in­ ternal pressure when he was moved to undertake such a cooperative activity and that his maturity, interacting with the products of irri­ gation, won for him a new kind of life.3 T h e great importance of the rivers of Egypt and Mesopotamia and of the means of controlling them is too w ell known to re­ quire description here.4 Since before the time of Herodotus, Egypt has been known as the gift of the N ile. Herodotus left the following description of agriculture in Lower Egypt: At present, it must be confessed, they obtain the fruits of the field with less trouble than any other people in the world, the rest of the Egyptians included, since they have no need to break up the ground with the plough, nor to use the hoe, nor to do any of the work which the rest of mankind find necessary if they are to get a crop; but the husbandman waits till the river has of its own accord spread itself 3 John A. Wilson, The Burden of Egypt: An Interpretation of Ancient Egyptian Culture, pp. 31-32. On page 62, Wilson observes that the develop­ ment of irrigation and drainage “may have been a result of national gov­ ernment rather than a process leading to national government.” Karl A. Wittfogel has made pioneering and provocative studies of the rise, growth, and significance of what he terms “hydraulic” societies, i.e., those based on large-scale and government-managed works of irrigation and flood control.— See his Oriental Despotism: A Comparative Study of Total Power, especially pp. 1-48. See also Wittfogel, “The Hydraulic Civilizations,” in William L. Thomas, Jr. (ed.), Man’s Role in Changing the Face of the Earth, pp. 152164. 4 On Egypt, see George Rawlinson, History of Ancient Egypt, Vol. I, Chaps. 1, 2, and 6; Wilson, The Burden of Egypt, Chaps, 1 and 2; Kinney, Irrigation and Water Rights, Vol. I, pp. 104-109. On Mesopotamia, see Cambridge Ancient History, Vol. I, pp. 356-361, 494-503, 541; Morris Jastrow, Jr., The Civilization of Babylonia and Assyria, pp. 5-11; Frankfort, The Birth of Civilization in the Near East, pp. 44-50; Childe, New Light on the Most Ancient East, pp. 102-115.

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over the fields and withdrawn again to its bed, and then sows his plot of ground, and after sowing turns his swine into it— the swine tread in the corn— after which he has only to await the harvest. The swine serve him also to thrash the grain, which is then carried to the garner.5 T o a people accustomed to such a mode of agriculture, little wonder that dependence on rainfall seemed a dangerous and foolhardy thing. Herodotus says of the Egyptian: On hearing that the whole land of Greece is watered by rain from heaven, and not, like their own, inundated by rivers, they o b s e r v e d — “Some day the Greeks will be disappointed of their grand hope, and then they will be wretchedly hungry” ; which was as much to say, “If God shall some day see fit not to grant the Greeks rain, but shall afflict them with a long drought, the Greeks will be swept away by a famine, since they have nothing to rely on but rain from Jove, and have no other resource for water.” 6 T h e Israelites, after their long sojourn in Egypt, were warned by Moses that they would find their new land different from what they had known. “ For the land, whither thou goest in to possess it, is not as the land of Egypt, from whence ye came out, where thou sowest thy seed, and waterest it with thy foot, as a garden of herbs: But the land, whither ye go to possess it, is a land of hills and valleys, and drinketh water of the rain of heaven.” 7 More detailed information has survived on Egyptian agri­ cultural practices than on the legal institutions by which the vast water works of ancient Egypt were managed. A good deal is known, however, about Egyptian government and law in gen­ eral, and this makes it possible to arrive at some idea of the nature of water institutions. T h e pharaoh was not only an abso­ lute monarch who was regarded as a divinity but he also was looked upon as owner of all the land, though in time land came to be held by priests and nobles to some extent. Egyptian society 5 The History of Herodotus, trans. and ed. George Rawlinson, Bk. II, Chap. 14. 6 Ibid., Chap. 13. 7 D e u t. 1 1 : 1 0 - 1 1 .


T h e Spanish E lem ent in Texas W ater Law

was a highly authoritarian one, and officials of the pharaoh supervised economic as well as political affairs, including the administration of irrigation and the water supply.8 T h e con­ struction of canals and dikes was usually carried on by a labor force drafted from the young men of the villages by the central government. W hile the central government had general control over the water system, it appears that the pharaohs sometimes encouraged the nomarchs to reclaim land by giving them special privileges in such new land. And during periods when the cen­ tral government was weak, the nomarchs no doubt assumed greater authority in regard to water, as well as other matters. A nomarch of Upper Egypt during the First Intermediate Period (2200-2050 b .c .) recorded the following among his many ac­ complishments: “ I made a canal for this town when U pper Egypt was in a bad way, and one did not see any water. . . . I made high fields into marsh, I made the N ile inundate waste­ land. . . . whoever needed water got N ile water as he desired.” 9 Mesopotamia, the land between the rivers, enjoyed less of natural advantages than did Egypt. N either the Euphrates nor the T igris was so dependable as the Nile, and the Tigris, espe­ cially, was treacherous. T h e epic of the Deluge, found among the Babylonians as well as the Jews, probably originated in some catastrophic flood whose occurrence was perpetuated in the folk m ind.10 T h e precariousness of life in Mesopotamia is reflected in the religious and political concepts of the ancient peoples who lived there, who were keenly aware of their dependence on superhuman power.11 It is reflected also in the fact that much of the area which supported the civilization of the Sumerians and the Babylonians became once again marsh and desert and that this region is still in the twentieth century a relatively back­ ward one. T hough the hazards were great, when all went well the Meso­ potamian land was incredibly productive. Even Herodotus was 8 Cambridge Ancient History, Vol. II, pp. 46-48. 9 Quoted in Frankfort, The Birth of Civilization in the Near East, p. 96. 10 Jastrow, The Civilization of Babylonia and Assyria, pp. 444-452. 11 Frankfort, The Birth of Civilization in the Near East, p. 52.

A n cient W orld W ater Laws and Institutions


concerned lest his account of agriculture in Mesopotamia should prove suspect: But little rain falls in Assyria, enough, however, to make the corn begin to sprout, after which the plant is nourished and the ears formed by means of irrigation from the river. For the river does not, as in Egypt, overflow the corn-lands of its own accord, but is spread over them by the hand, or by the help of engines. The whole of Babylonia is, like Egypt, intersected with canals. The largest of them all, which runs towards the winter sun, and is impassable ex­ cept in boats, is carried from the Euphrates into another stream, called the Tigris, the river upon which the town of Nineveh formerly stood. Of all the countries that we know there is none which is so fruitful in grain. It makes no pretension indeed of growing the fig, the olive, the vine, or any other tree of the kind; but in grain it is so fruitful as to yield commonly two-hundred-fold, and when the pro­ duction is the greatest, even three-hundred-fold. The blade of the wheat-plant and barley-plant is often four fingers in breadth. As for the millet and the sesame, I shall not say to what height they grow, though within my own knowledge; for I am not ignorant that what I have already written concerning the fruitfulness of Babylonia must seem incredible to those who have never visited the country.12 T h e importance of the irrigation system in ancient Mesopo­ tamia is shown by the practice of the Sumerian kings of reciting among their accomplishments their contributions toward the construction or repair of canals. Numerous orders from the kings providing for the clearing of the channels of canals or for the redigging of canals have survived. As was true in Egypt, the corvee was used chiefly to maintain the canal system.13 T h e Code of Hammurabi, king of Babylonia from 2285 B .C . to 2242 B .C ., provides us with some detailed information about the irrigation practices of ancient Mesopotamia. T h e provisions of the code relating to irrigation include the following: Anyone failing to keep his irrigating dam in repair, and through his neglect and laziness a break occurs in the dam and his neighbors’ 12 The History of Herodotus, Bk. I, Chap. 193. 13 Albert A. Trever, History of Ancient Civilization, Vol. I, p. 24; Cam­ bridge Ancient History, Vol. I, p. 541.


T h e Spanish E lem ent in Texas W ater Law

lands are flooded by the overflow of the water therefrom, he shall compensate the owner of the damaged land for his loss of grain or other property occasioned by the overflow. In event he is unable to repay or make good the damage incurred by his neglect, his property is to be sold, and those incurring damage through his negligence are to divide his property among themselves in accordance with the extent of the several losses occasioned by his negligence. If anyone opens his canal for the purpose of irrigation in a negli­ gent manner, and thereby floods the fields of his neighbors, he shall be held to account to those neighbors and pay them grain corre­ sponding with their losses. Anyone negligently and maliciously found to be guilty of flood­ ing his neighbor’s tillable fields shall measure out to that neighbor ‘gan’ for every 10 ‘gur’ of grain destroyed thereby. If anyone steal a water wheel from the fields he is to give the owner 5 shekels of money upon proof of his guilt. If he steals a dipping bucket or a plow, he is to give 3 shekels of money to the owner upon proof of his guilt.14 It is clear from these laws that the persons farming land along an irrigation canal were responsible for making and m aintain­ ing the dikes and embankments. Also, each farmer was obligated not to use the water in such a way that he damaged his neigh­ bors’ lands.15 T o most Europeans and Americans— at least those whose world is a humid one— it is no doubt remarkable that this oldest known code of laws should contain such provisions regulating water use. Eugene F. W are points out that “ the Code of Ham m urabbi contains more about irrigation than the Code of Napoleon. Although Ham m urabbi lived over 4,000 years ago, it is quite probable that every proposition concerning irri­ gation had been settled long before he was born or his empire 14 Translation of H. Otto Sommer and W. E. Ambrose in Eugene F. Ware, Roman Water Law Translated from the Pandects of Justinian, pp. 29-30, cited hereinafter as Ware, Roman Water Law. See also C, H. W. Johns (trans.), The Oldest Code of Laws in the World: The Code of Laws Promulgated by Hammurabi, King of Babylon B.C. 2285-2242. 15 G. R. Driver and John C. Miles (eds.), The Babylonian Laws, Vol. I, Legal Commentary, p. 153.

A n cien t W orld W ater Laws and In stitutions


organized.” 16 W h ile one concerned about mid-twentieth-cen­ tury water problems has difficulty believing that the Babylo­ nians were wise enough to settle “ every proposition concerning irrigation,” W are’s observation emphasizes the fact that the de­ gree of development of water law is a factor of the man-landwater ratio. W here water is scarce in proportion to man’s need and the land available, there has been a tendency to restrict and regulate its use. W here water has been “free” (as seems one of the eternal verities to most in the European world) and abun­ dant, then its use has been largely a matter of individual action, and the laws relating to water have had only lim ited develop­ ment. T h e Fertile Crescent of antiquity was the scene of the rise and fall of numerous peoples and empires besides the Akka­ dians, whose most famous ruler was Hammurabi. A nd these peoples, like all who dwelt in the land, had to deal with water problems. T h e climate of the Mediterranean region is charac­ terized by the prevalence of winter rains and summer droughts. Further, there is a great variability of rainfall from year to year. Rivers can be torrents in the wet season and become trickles or disappear entirely in the summer drought. T h e effects of both drought and flood are depicted in the writings of the M edi­ terranean peoples. T h e concern of the ancient Jews about water and their awareness of its life-giving power as well as its fury are found in many passages in the Bible. T h e psalmist knew both the still waters that restore the soul and the proud waters that threaten to overwhelm it. M an’s yearning for G od is com­ pared to the desire of a thirsty man for water repeatedly in the Psalms, such as the well-known verse of Psalm 63: “ O God, T h o u art my God; early w ill I seek T hee: my soul thirsteth for T hee, my flesh longeth for T h ee in a dry and thirsty land where no water is.” In the restored and glorious Israel which is to come, Isaiah tells that “ the desert shall rejoice, and blossom as the rose. . . . For in the wilderness shall waters break out, and streams in the desert. A nd the parched ground shall become a 18 Ware, Roman Water Law, pp. 30-31.


T h e Spanish E lem ent in Texas W ater Law

pool, and the thirsty lands springs of water.” 17 T o the Greeks, too, water was of moment. Pindar said, “ W ater is best of all,” and even the modern Greek tells his departing guest, “ May you have a safe journey and find good water.” 18 Irrigation was practiced by the Hittites, who controlled much of Asia M inor at the height of their power about 150 0 b .c . Some of their laws which survive indicate that the duties and respon­ sibilities of those practicing irrigation must have been estab­ lished by long usage.19 T h e Persians, who later dominated much of the Near East, also relied on irrigation. H ow the Persian king dealt with one water problem is recorded in Herodotus: There is a plain in Asia which is shut in on all sides by a mountainrange, and in this mountain-range are five openings. . . . A mighty river, called the Aces, flows from the hills inclosing the plain; and this stream, formerly, splitting into five channels, ran through the five openings in the hills, and watered the lands of the five nations which dwell around. The Persians came, however, and conquered the region, and then it went ill with the people of these lands. The Great King blocked up all the passages between the hills with dykes and flood­ gates, and so prevented the water from flowing out. Then the plain within the hills became a sea, for the river kept rising, and the water could find no outlet. From that time the five nations which were wont formerly to have the use of the stream, losing their accustomed supply of water, have been in great distress. In winter, indeed, they have rain from heaven like the rest of the world, but in summer, after sowing their millet and their sesame, they always stood in need of water from the river. When, therefore, they suffered from this want, has­ tening to Persia, men and women alike, they take their station at the gate of the king’s palace, and wail aloud. Then the king orders the flood-gates to be opened towards the country whose need is greatest, and lets the soil drink until it has had enough; after which the gates on this side are shut, and others are unclosed for the na­ 17 Isaiah 35:1-7. 18 Ellen Churchill Semple, The Geography of the Mediterranean Region: Its Relation to Ancient History, pp. 505-506. For a discussion of the climate of Palestine and its significance in Biblical thought, see ibid., pp. 457-461, and Denis Baly, The Geography of the Bible, pp. 41-82. 19 E. Neufeld, The Hittite Laws, p. 178.

A n cien t W orld W ater Laws and In stitu tions


tion which, of the remainder, needs it most. It has been told me that the king never gives the order to open the gates till the suppliants have paid him a large sum of money over and above the tribute 20 T h e Persians succeeded in building the greatest empire known to their time, stretching from the Indus on the east through the Fertile Crescent to Egypt and Asia M inor on the west. But, in time, Persia fell before the armies of the bold young Macedonian, whose armies and government officials spread H ellenic culture through the Near Orient and returned carrying Oriental influences to Greece. Meanwhile, farther to the west a new power was emerging.

R om an W a ter Laws and Institutions Roman Water Works. Rom e’s greatness was based in large part on the Roman achievement in engineering and law, twin expressions of the Roman genius for order, sta­ bility, and reason. W hatever the causes for Rom e’s rise— or fall — there is little room to argue that her most lasting gift to the civilization of the West was in the realm of law. A nd water law, in particular, has been derived largely from the principles found in Roman law. T h e building and maintenance of water works was one of the principal tasks of the town authorities throughout the Roman world. W ater was collected in reservoirs, often in hills, and transported to the cities by the now-famous aqueducts or by a system of closed siphons. Roman engineers ran the water through basins to permit clay and other particles to settle, and they tested the quality of the water by evaporation and sedimen­ tation processes as well as by the practical means of observing peculiarities of taste and color in boiled vegetables. From the principal reservoirs water was piped to the fountains, public baths, and public buildings, which enjoyed priority, and also to 20 The History of Herodotus, Bk. Ill, Chap. 117.


T h e Spanish E lem ent in Texas W ater Law

industrial users and private dwellings. T h e water-user paid on the basis of the size of the nozzle which connected his establish­ ment to the public system.21 T h e administration of the water works of the city of Rome was made the responsibility of a special board about 9 B.C. by Augustus. T h e president of this board from a .d . 97 to a .d . 104, Sextus Julius Frontinus by name, was a man of some distinction and of methodical mind. His first thought on assuming office, he tells us, was “ to consider it to be the first and most important thing to be done, as has always been one of my fundamental principles in other affairs, to learn thoroughly what it is that I have undertaken.” 22 T o accomplish this he prepared a report setting down in a codified arrangement all he could learn about the water works of the city of Rome. T his study has survived and provides detailed information on the aqueducts, the method of measuring water, the administration of the water works in Rome, reforms of the distribution system, the organization of workers to maintain the water works, and water laws in exist­ ence at the time. Frontinus’ descriptions of the various aque­ ducts supplying Rome include information about when and by whom they were built, the routes followed, the parts of the city or system serviced, and the quality of the waters. H e records measurements of length and height and describes the type of construction. His own view of the magnitude of the achieve­ ment the aqueducts represented is not left to his reader’s imagi­ nation: “ W ill anyone compare the Pyramids, or those other useless though much renowned works of the Greeks with these aqueducts, with these many indispensable structures?” 23 T h e success in the building of aqueducts and of m unicipal water systems is better known than is that of the Roman engi­ neers in constructing irrigation systems. Irrigation had been practiced in Italy from early times. It was the basis of the econ21 Forbes, Man the Maker, pp. 78-81; James S. Reid, The Municipalities of the Roman Empire, pp. 453-454; F. W. Robins, The Story of Water SupPb> PP- 57~65 22 Sextus Julius Frontinus, Two Books on the Water Supply of the City of Rome, trans. and ed. Clemens Herschel, p. 3. 23 Ibid., Bk. I, Chap. 16.

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omies of the Near East before Rome conquered that area, and under Roman rule irrigation systems were improved and ex­ panded. In North Africa the Roman engineers carried on per­ haps their most spectacular reclamation projects. Areas which today are unproductive desert supported sizable towns and a prosperous agricultural population. H ow was this possible? Some have argued that the climate has changed significantly, but the truth would seem to be that the Roman engineers were more successful than their successors have been in utilizing what water was available in the area. T h e Romans employed every possible means to catch and store all the rainwater and the water that flowed down the valleys. T h ey threw diversion dams across rivers and made reservoirs. T h ey built vaulted cisterns to prevent evaporation losses and to provide storage capacity for irrigation. T h ey constructed deep wells, remains of some hundreds of which have recently been discovered by archeologists.24 T h e achievements of the Romans as builders in stone, brick, and concrete were matched by their success in creating a body of law which spread throughout their empire and helped to hold it together as surely as did the roads and bridges. Roman Law. Roman law was characterized by flexibility and rationality. Because much of the Roman law which has survived is that of the Corpus Juris Civilis— the great codification of the law carried out by Byzantine scholars under Justinian— it is easy to view the law as a rigid, highly systema­ tized, and extraordinarily bulky structure. It is necessary always to remember that the Corpus Juris of Justinian represented the end product of Roman law; it was the codification of a body of law that had grown up over a period of a thousand years, Roman law began as the customary law of the people of the city, first set down in writing in the Law of the T w elve Tables in the middle fifth century B .C . T his jus civile grew through interpretation of existing rules, recognition of usage, and legis24 Reid, The Municipalities of the Roman Empire, p. 290; Robert Brit­ tain, Let There Be Bread, pp. 22-25.


T h e Spanish E lem ent in Texas W ater Law

lation. A second element in Roman law was the jus honorarium or the jus praetorium, the law handed down by the praetors, who had authority to develop new remedies for new situations. T h e praetors in time came to issue at the beginning of their term of office an edict which set down the principles to be fol­ lowed in making decisions. Eventually a standard edict de­ veloped that became mandatory throughout the empire. A third element in the growth of Roman law was the jus gentium— the law held to be common to all men, a body of law which grew out of the dealings with non-Roman peoples. A fourth element was the jus naturale, which was a concept taken over by the Roman jurists from the Stoic philosophers. It was around these four elements that Roman law developed during the Republic, and they form the basis of all Roman law.25 W ith the establishing of the empire, the rulers came to exer­ cise more and more influence over the law. T h e y issued edicts of their own, fixed a perpetual edict for the praetors, as men­ tioned above, heard cases in the imperial tribunal and an­ nounced decisions called “ decrees” which abrogated all other rules, and, finally, the emperors gave written opinions, called “ rescripts,” to settle points of law.26 By the third century of the Christian era, Roman law had be­ come a fixed system rather than a growing, changing entity. In this period the jurists and lawyers continued in the spirit of 25 The Institutes of Justinian, ed. and trans. Thomas Collett Sandars, 1.1, 1.2. See also ibid., pp. xxii-xxiv, and W. W. Buckland, A Manual of Roman Private Law, pp. 28-29. A ll excerpts from the Institutes will be taken from the Sandars transla­ tion. Citations to the Institutes will be given in the following form: Insti­ tutes. book number, title number, section number, fragment number. Thus, /.1.1.4 means “Institutes, Book I, T itle 1, Section 4.” A similar form will be used for the Code of Justinian (CJ), the Digest of Justinian (D), and the Code of Theodosius (CT). Unless otherwise noted, quotations from the Digest and the Code of Justinian are taken from Ware, Roman Water Law. Some quotations are from S. P. Scott (trans. and ed.), The Civil Law includ­ ing the Twelve Tables . . . Passages from the Code of Theodosius are from Clyde Pharr (trans. and ed.), The Theodosian Code and Novels and the Sirmondian Constitutions. 26 Hans Julius Wolff, Roman Law: An Historical Introduction, pp. 8490; Buckland, A Manual of Roman Private Law, pp. 6-15.

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classical law but added little that was creative. T h e time was ripe for codification, and the Byzantine mind was eminently fitted to such a task. T h e work of codification began in the third century with the appearance of several private collections of laws. In a .d . 438 an official collection, the Codex Theodosianus, was issued. T h e next codes were those of the barbarian invad­ ers of the West, who promulgated laws for their Roman sub­ jects beginning in the late fifth century. Justinian’s codification of the law was thus the outgrowth of a long period of code­ making and systematizing of the law. It consisted of four parts, issued from a .d . 529 to a .d . 534: the Codex, a collection of im­ perial enactments not extant; the Digest or Pandects, a codifica­ tion of juristic writings arranged in fifty books; the Institutes, an elementary textbook of law but with some rules not given elsewhere in the code and having the force of law; and the Codex Repetitae Praelectionis, a new edition of the code con­ taining the changes made during the process of compilation. It is this second edition of the code, issued in a .d . 534, which has survived.27 Roman Water Law. From this brief look at the development of Roman law perhaps it w ill be clear that the provisions in Roman law relating to water are not collected in a single body of law but have come down to us scattered through the Code, the I n s titu te s and the Digest. Further, with the ex­ ception of certain statements of principle, much of the law con­ sists of the rulings of praetors or the emperors relating to some specific case. T here are many discrepancies, therefore, and it is possible, as has often been done, to cite some particular provi­ sion of Roman law to support contradictory positions at law. According to the Institutes, the study of law is divided into two branches, public law and private law. Public law has to do with the government of the empire; private law deals with the interests of individuals.28 Private law, in turn, ‘ relates either to 27Sandars, The Institutes of Justinian, pp. xxx-xxxiv; Buckland, A Manual of Roman Private Law, pp. 20-25. 28 L1.4.

T h e Spanish E lem ent in Texas W ater Law


persons, or to things, or to actions.” 29 Book II of the Institutes deals with things, and in T itle I are found the fundamental concepts relating to water. Things, says the Institutes, are either capable of private ownership (in nostro patrimonio) or not capable of private ownership (extra nostrum patrimonium). Things extra nostrum patrimonium include those belonging to all men (res communes), to the state (res publica), to no men (res nullius), or to bodies of men (res universitatis). “ By the law of nature these things are common to mankind— the air, run­ ning water, the sea, and consequently the shores of the sea.” 30 Common things by their very nature cannot be the property of the individual. Such common things belong to all men, and any man may take as much as he pleases. So long as he occupies (uses) the thing, his holding of it is respected, but as soon as he releases it, it again becomes common to all.31 T his principle of Roman law— that running water occupies a different place from any other material of the earth and that running water is not and cannot be the property of any person— is the “ first ele­ mental principle” for all systems of water law.32 T his principle has been persistently and almost uniform ly accepted in the C ivil law, the common law, and the law of prior appropriation. W hile Roman law regarded running water as being common to all, rivers were classified in the Institutes as being public, the property of the state but subject to the use and enjoyment of an 33 T h e meaning of this designation is made clearer by the Institutes in the following section: The public use of the banks of a river is part of the law of the nations, just as is that of the river itself. All persons, therefore, are as much at liberty to bring their vessels to the bank, to fasten ropes to 297 . 1.2 . 12. 30 7 . 2 . l . l .

31 Sandars, The Institutes of Justinian, p. 91. See also Wiel, Water Rights in the Western States, pp. 2-4. 32 Wiel, “Theories of Water Law,” Harvard Law Review, Vol. XXVII, p. 530. See also Wiel, “ Origin and Comparative Development of the Law of Watercourses in the Common Law and in the Civil Law,” California Law Review, Vol. VI, pp. 254-255. 33

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the trees growing there, and to place any part of their cargo there, as to navigate the river itself. But the banks of a river are the prop­ erty of those whose land they adjoin; and consequently the trees growing on them are also the property of the same persons.34 T h e significance of this distinction between running water— a common thing-— and a river— a public thing— is well stated by W illiam Hamilton Hall: Taken as a whole, a river— channel and water— was regarded as a public thing (res publica), the property of the state, necessarily ex­ cluded from private ownership or control, barter or sale, the use of which in its entirety [was] to be enjoyed by all. But the water, regarded as a separate thing from the river, was the property of all the people in common— it was susceptible of appor­ tionment amongst the people— each might drink of it, each dip up a portion and carry it away, and further than that, if the enjoyment of the public property— the river as a whole— would not be im­ paired, each might divert a portion of the water from its natural channel for other purposes than those of his own domestic necessi­ ties. But the state, representing the people— the owner of the public thing, the river— was guardian of the common property, the water, and no person could use more than sufficient for his individual ne­ cessities and those of his family and cattle, without a special permit so to do.35 A number of sections of the Digest make it plain that the law was particularly concerned with protecting the navigability of rivers and streams. T h e praetor’s interdict (D.43.12.1) “ Do nothing on the banks of a public river, or in the stream, neither put anything on the banks or in the stream, whereby the land­ ing or the navigation is made worse” is enlarged and expounded by some twenty fragments. A n y action which reduces the quan­ tity of water or diffuses the water so that it becomes shallower or congests the water so that it becomes more rapid or anything else “ which makes navigation more arduous or uncom fortable” 34 Irrigation Development: History, Customs, Laws, and Administrative Systems Relating to Irrigation, Water-Courses, and Waters in France, Italy, and Spain, p. 41. 35


T h e Spanish E lem ent in Texas W ater Law

is subject to action under the terms of this interdict (D.43.12. 1.15). U lpian points out (D. that “ not everything done in a public river or on its banks does the Praetor’s inter­ dict prohibit, but only that which makes the navigation or land­ ing worse. T h e interdict therefore applies only to navigable rivers and does not concern others.” B ut he notes in another section (D., “ If a stream is navigable the Praetor ought not to grant the right that water be taken from it in such quantity as that the stream becomes less navigable.” Further, this rule applies if the stream in question empties into a navi­ gable river. W hile the Institutes states that “ all rivers and ports are pub­ lic,” the Digest distinguishes between “ p ublic” and “ private” rivers. T h e interdict cited above says that nothing is to be done on the banks of a public river or in the stream to hamper navi­ gation. T h e next sections define river and distinguish between public and private rivers; these sections are quoted below: Ulpian. A river is distinguished from a brook, either by its size or the opinions of those living along it. Ulpian. Some rivers are perennial; some are torrential. A peren­ nial river is one which flows continually. A torrential river is one which flows in cold weather. If, however, a river which has flowed perennially dries up during a certain summer, it is none the less perennial. Ulpian. Some rivers are public; others are not. Cassius defines a public river as a perennial river. This definition, approved by Celsus, appears correct. Ulpian. The Praetor’s interdict, above set forth, concerns public rivers. If private, the interdict does not apply; for a private river dif­ fers in no sense from any other private property.36 In Roman law, then, perennial rivers were public and their use was common to all. T h e same was true of public lakes, canals, 36 D. See also D.43.12.3: “Paulus. Rivers which flow peren­ nially are public, and their banks are also public/’ Other provisions in the Digest relating to rights in public and private rivers include D.43.14 and D. 39.2.24.

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and ponds (D.43.14.1). But private rivers differed in no way from any other private property, as was true for private lakes, ponds, and canals. T h e navigability of public rivers and waterways was pro­ tected by law. By another interdict (D.43.13.1) the doing of any­ thing that would make the water of a public river “ flow other­ wise than as during the summer before” was prohibited. U lpian comments (D. that this interdict provided “against the exhaustion of rivers by permissions for turning off the water, or a change in the bed, lest injury be done to neighbors.” And, he adds, “ the interdict pertains to public rivers whether they are navigable or not.” U lpian’s reference to “ permissions for turning off the water” is only one of many in the Digest which makes it clear that R o­ man law provided for a system of diverting waters from the public rivers. Many of these provisions are in the negative; that is, they say that water may not be taken if the rights of others are injured or if navigability is endangered. T h e following frag­ ments from the Digest give some idea of the law on this matter; Pomponius. There is nothing to prevent any one taking water from a public river, unless the sovereign or the senate forbids it, provided that the water so taken is not in public use. But if the river is either navigable, or makes something else navigable, the water is not permitted to be so used. [£>.43.12.2] Pomponius. Many may take away water from a river, but in such manner only that their neighbors are not injured, or, if the stream is not large, those on the other side. [£>.] Ulpian. If a stream is navigable the Praetor ought not to grant the right that water may be taken from it in such quantity that the stream becomes less navigable. So says Labeo. And the same rule holds if even by such act another stream becomes navigable. [D.39. 3.10.2] Papirius Justus. Emperors Antoninus and Verus decreed that water from public streams ought to be divided for the irrigating of fields in proportion to the holdings, unless some proprietor shows a right given him to take more, but water thus taken must be without injury to the rights of others. [D.8.3.17]


T h e Spanish E lem ent in Texas W ater Law

T h e right of “raising water by a wheel from a river, or of drawing water therefrom,” or of using water from a public reservoir came to be looked upon as a servitude in Roman law.37 T h e concept of the servitude grew out of the Rom an view that there were various rights over a thing and that these rights might be separated. Such a fragmentary right was called a “servitude” because the thing in question was “ under a kind of slavery for the benefit of the person entitled to exercise over it this separate right.” 38 Servitudes were of two classes, praedial servitudes, or those attached to the property itself, and personal servitudes, or those given to particular persons. Am ong the praedial servitudes were the aquaeductus, the right of leading water through the property of another; the aquaehaustus, the right of drawing up and using water; the pecoris ad aquam appulsusy the right of driving cattle to water; and the aquae educendae s. immittendae, the right of leading off water to an­ other’s land.39 Rights of this kind run far back in Roman law; in the T w elve Tables the simpler forms of water right are rec­ ognized. Servitudes were commonly created by agreements and stipu­ lations and by will. T h ey could also be acquired by long usage if the possessor could show that he held “without force, stealth, or variation.” W hat length of time was necessary to establish the right is not certain, though it has been assumed to have been the same as that for acquiring provincial lands— ten years if the parties were in the same province, twenty years if they were not.40 37D.8.4.2: “Ulpian. Concerning the right of raising water by a wheel from a river, or of drawing water therefrom, or the imposing of a servitude upon a public reservoir, many have doubted whether such were true servi­ tudes. But in a rescript of the Emperor Antonius to Tulianus it is stated that: ‘Admitting that such rights are not, in strict law, servitudes, neverthe­ less, if one has acquired, by my decision or otherwise, in any legitimate manner, such rights, they are to be preserved to him.’ ” 38Sandars, “Introduction/’ The Institutes of Justinian, pp. 1-18. See also Buckland, A Manual of Roman Private Law, pp. 153-155. 39 Z>.8.3.1; Ferdinand Mackeldey, Handbook of the Roman Law, p. 250. jD.8.5.10. See also D., CJ.3.32.2, CJ.3.34.3; Buckland, A Manual

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T h e concept of a usufructuary right, which is central in mod­ ern water law, is derived from the most important of the per­ sonal servitudes in Roman law. “ T h e usufruct,” says the Insti­ tutes (1.2.4), “ is the right to use and enjoy things belonging to others provided that the substance of the things used remained unim paired.” In classical law the usufruct ordinarily involved lands, buildings, slaves, or beasts of burden but it could pertain to anything “ except things which are consumed by being used” (7.24.2). In modern law it is the right to use and enjoy the run­ ning water which constitutes a property right; the corpus of the water cannot be owned. T h e centrality of this concept of the usufructuary right is well stated by W iel: The law of watercourses under whatever system (whether appropria­ tion or riparian rights), borrowing from the civil law, is but a de­ velopment of the exercise of the usufructuary right, and of the sev­ erance in pursuance of it of a portion of the water from the natural stream. The water in the stream— in the natural resource— itself is nobody's property or “belongs to the public.” The right may exist in one having a right of access to it to take of it or otherwise use it (called usufructuary) and to have it flow to him for his use. Any part taken in the fulfillment of this usufructuary right is the private property of the taker while in his possession.41 One other general principle of Roman law should be men­ tioned. T his is the rule that wild animals (ferae bestiae) become the property of the captor, whether taken on his own land or that of another and they remain his property so long as he keeps them in his possession. If the captured animal escapes, it ceases to be the property of the captor and may become the property of whoever captures it. By analogy with this rule regarding ferae bestiae, water has come to be looked upon in modern water law as a mineral ferae naturae— subject, as are wild ani­ mals, to capture.42 of Roman Private Law, pp. 158-159; Sandars, The Institutes of Justinian, p. 124. 41 Wiel, Water Rights in the Western States, p. 21. 42 Ibid., pp. 26-33.


The Spanish Element in Texas Water Law

So much, then, for this brief summary of the general prin­ ciples of Roman law as they relate to water.43 What of the ac­ tual workings of Roman water law? In the Codes and in the Digest there are many provisions dealing with water. Ware gives some 377 fragments from the Code of Justinian and the Digest in his Roman Water Law, and he does not include all. T he subjects involved range widely: may a man let the water drip from his roof onto my land; may he plow his land so that the water flows onto my field; may he take water from my spring; may he build a structure in a public river? A ll of these and countless other questions are covered in the laws that have come down to us. Even the Roman legions’ use of water was supervised. In a decree whose puritanical notes sound strangely discordant set in the florid Byzantine style, the emperors pro­ vided: By Our farseeing authority We decree that when all the multitude of legions halt upon the verdant banks of the rivers, no person at all shall pollute the common drinking cup by defiling the flowing streams with foul filth, nor while hurriedly washing off the sweat of the horses shall anyone offend the public gaze by appearing nude, and thus both mix the drinking water with muddy filth and shock the public gaze. But he shall wander far from the sight of everybody to the lower parts of the river, that is, below the tents, and he shall superintend the swimming of the animals as far as he pleases.44 Under Roman water law, it was possible to acquire a water right by long usage. Pomponius says (D., “A water right whose origin is time out of mind has a duly constituted existence.” Ulpian adds (D.8.5.10): “ If by long-continued use and long quasi-possession one has perchance acquired a water right, he is not compelled to show the title by which his right orig­ inated, as if by devise or some other way; but he has a right of action, and may set forth the number of years he has been in possession of the use without force, stealth, or variation.” P0543 For a summary of Roman water law, see Kinney, Irrigation and Water Rights, Vol. I, pp. 959- 979 44 CT.7.1.12; the same is given in CJ. 12.35.11.

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session “ without force, stealth, or variation” gave a right even if the use was adverse to someone else— a process the law terms “ prescription.” T h e praetor’s interdict (D.43.20.1) says “ I for­ bid violence against him who adverse to you is using water as it has been used during the past year by him, without force, stealth, or variation.” W hile rights could be gained by use, they could be lost by non-use or by use of water in a different man­ ner from that established (jD.8.6.7, ^ 8 .6.10 .1, D.8.6.18, D .8. 6.19.1). As one would expect from the conservative temper of the Romans, the law afforded protection to established water rights. In the Theodosian Code is an imperial decree that ancient water rights that are established by long ownership shall remain the property of the several citizens and not be disturbed by any innovation. Thus each man shall obtain the amount that he has received by ancient right and by custom lasting to the present day. The punishment shall remain which was provided for persons who wrongfully use secret channels of water for the irrigation of their fields or for the beautification of their gardens.45 The Emperors Diocletian and Maximian, in similar vein, held (CJ.3.34.7) that “if it can be fully proven that a flow of water through certain places is according to ancient custom, and that according to observation it shows usefulness in irrigating cer­ tain tracts of land, our procurator will provide that no innova­ tion against the old form and established custom be permitted.” Once a man established his right to the use of water, what did the law provide as to the place where he might use it? Here there is confusion in Roman law. Ulpian cites Labeo as authority for the view that all parts of an estate into which water is conveyed are counted as one whole. If, therefore, perchance, a plaintiff buys an adjoining field, and from the field into which he has conveyed the water into the said purchased field, he can do so under this interdict, as also under the interdicts relating to footpaths and driveways, because, 45 CT. 15.2.7; the same is given in CJ. 11.43.4.


T h e Spanish E lem ent in Texas W ater Law

being once in his own inclosure, he can go where he pleases unless dam age comes to him from whom the water is conveyed away.46

But Pomponius discounts Labeo: From m y water right, so L abeo says, I m ay accom m odate any of my neighbors w ith water. O n the other hand, Proculus holds that the water m ay not be used for any other part of the estate than that for w hich the right was acquired. T h e opinion of Proculus is the truer o n e 47

T h e aqueducts were of such great importance that their main­ tenance and preservation were provided for in the law. Land­ owners through whose lands aqueducts passed were exempted from extraordinary burdens so that they could clean the aque­ ducts. If they neglected their duties in maintaining the aque­ ducts, their land would be forfeited.48 Measures provided for supplies of lime, building materials, and workers to maintain and restore the aqueducts (CT .64.29, 6.4.30, 14.6.3, 15.1.23, 15.1.36). Anyone who interfered with or injured an aqueduct or took water without authority was required to restore the damage; land watered illegally was subject to confiscation (C/. 11.42.10). W ater custodians, called “ hydrophylacas,” were charged with the management of the aqueducts. These officials were to have the name of the emperor stamped upon their hands so they would be recognized and not interfered with in their duties (C/. 11.42.10). T h e water supplies of the cities were given priority over other water uses, according to a num ber of laws, including the following: Every servitude perm itting water to be drawn from the aqueduct of H adrian, w hether for domestic use, for the irrigation of land, for country villas, or for baths, either by virtue of an Im perial Rescript, or secured by usurpation, is hereby absolutely abolished; for W e 46 D. 47 D.8.3.24. 48 CT. 15.2.1; also CJ. 11.43.1. It was further provided that no trees should be permitted within fifteen feet of the aqueducts.

A n cien t W orld W ater Laws and In stitutions


prefer that the aforesaid aqueduct should be used to provide water for the public, hot and cold baths, and for Our palace.49 W ithin the city, there were various regulations of water use. W ater was to be taken only from the reservoir or conduits, not from an aqueduct or the pipes, called “ matrices” ( CT. 15.2.5, 15.2.6). Heavy fines were imposed for polluting the water. No one was to take water from the public supply without a li­ cense.50 Further, the emperors decreed that while the greatest houses with “ very elegant baths” could have water pipes of two inches in diameter, but not to exceed three inches, mediocre or inferior houses with baths could have only inch-and-a-half pipes. Smaller houses could have pipes of only half an inch. If the officials failed to report unlawful water-users, they were to be punished and the water-user was to forfeit his right (CT. 15.2.3). Some of the provisions of the Roman law make it clear that a well-developed system of water permits existed. T h e following imperial decree was issued in the fourth century of the Chris­ tian era: The aqueduct which furnishes water for use at the palace at Daphne is diminished by the greed of some persons who attach larger pipes than those granted by imperial bounty. By the general agreement, therefore, of all parties concerned, the reservoirs shall be restored in three places; the name of each user and the measure of water to be observed shall be inscribed on tablets, and if it should appear that any person appropriates to his use any water beyond what is permitted, he shall be punished by the loss of a pound of gold for each obol of water. If any person is known to have received the right to obtain a certain measure of water in accordance with the tenor of a sacred imperial rescript, no power shall be granted him of receiving it in any way, until, by going before the governor he can acquire the quantity granted him out of a specified reser­ voir.51 49 C/.9.42.6 (Scott, trans.). See also CJ. 11.43.2, Novels of Valentinian 13.9 in Pharr, The Theodosian Code. 50 Frontinus, Two Books on the Water Supply of the City of Rome, pp. 67-68, 75. 51 CT. 15.2.2. The term obol, originally an ancient Greek weight, came


T h e Spanish E lem ent in Texas W ater Law

So much for the principles of Roman law as found in the Codes, Digest, and Institutes. In the writings of Frontinus we find a description of the actual working of Roman water law in the first century a . d ., not just the rendering of decisions, as is true in the Codes, Digest, and Institutes. From Frontinus’ ac­ count we learn that no one was to take water from a public sup­ ply without a written order from the emperor. T h is order was presented to the water commissioner, who appointed a deputy to see that the proper-sized pipe was attached to the public sup­ ply at designated places. T h e grant of water did not pass to the heirs of those who might purchase the land from the grantees but remained in force only so long as the land remained in the possession of the grantee. W hen any water became free, an an­ nouncement was made and an entry made in the records. V a­ cant water rights were then available for reassignment to peti­ tioners. T h e granted water could not be carried elsewhere than to the land to which it was appurtenant nor could it be taken from any other delivery tank than the one specified in the origi­ nal grant.52 T h e contributions of Roman law to modern water law are indeed great. T h e most important single contribution was the principle that running water is a common thing and in its nat­ ural state can be the property of no one. T h is concept has been central to all W estern water law. T h e Roman distinction be­ tween public and private rivers has been carried over into both C ivil and common law, though in a modified form in English law. T h e Rom an practice of assigning varying priorities to water uses finds its reflection in modern law, as does the estab­ lishing of water rights by prescription. T h e granting of rights to public waters by the state and the registering of such water rights is a feature common to both the ancient Roman law and the modern law of appropriation. T h e Roman concepts of a usu­ fructuary right and of the right of reducing water to possession by to be applied to a coin. The reference here is apparently to a pipe whose diameter is that of the coin. 52 Frontinus, Two Books on the Water Supply of the City of Rome, pp.


A ncient W orld W ater Laws and In stitutions


capture also figure largely in modern water law. In both Roman law and modern appropriation law there is the concept that use establishes a right to water and failure to use means the loss of the right. T h e concepts of reasonable and beneficial use and of collateral rights may also be discovered in Roman law. In sum, in Roman law are found many of the principles of all three m odem systems— riparian, appropriation, and administered. But Roman law itself does not fit into any one of these systems. It contains elements of all, and all have been built in consider­ able part upon Roman concepts. W iel has w ell said: “ T h e R o­ man law . . . laid down the first principle of all systems, and built no superstructure of any. T h e Roman digest presents, be­ yond that first principle, only disjointed expressions which are variously cited for all sides of the question.” 53 Roman law, as I have tried to make clear, respected ancient rights and customs. It also concerned itself with practical needs. In dealing with one water case, U lpian says (D. “ we ought to look at the usefulness of things and the safety of him who does the work, provided that those who dwell along the river are not injured.” Finally, the Roman jurists followed the maxim “ Equity suggests this, although we may be deficient in the law,” in water problems; though the rules of the law might not provide relief, the jurist felt that it should be possible to act to protect a man who was benefiting himself and not harm­ ing others (D. T h e creation of a system of water law which protected ancient rights, adjusted to practical needs, and was informed by the principle of equity was no small achieve­ ment. 53 Wiel, “ Comparative Water Law/' California Law Review, Vol. VI, pp.

254- 255-

III. Development of Water Law in Spain Respect for water is bred in the bone of the Spaniard. E d w in P. A r n e s o n

t h e w e s t e r n e n d of the Mediterranean Sea lies the Iberian Peninsula, the westernmost promontory of Europe. Here was the dropping off place of the ancient world, the fabled Pillars of Hercules. Surrounded by water on three-and-a-half sides and separated by a mountain chain from the body of Europe on the remaining half-side, the Iberian Peninsula has played a unique part in European history. Am ong the most highly Latinized provinces of the Roman Empire, it drank deeply of the wells of Latin culture; its languages and institu­ tions were heavily impregnated with Roman hues. Separated by only fourteen miles from Africa, it received powerful influ­ ences from the Dark Continent. In fact, the adage says, Africa begins at the Pyrenees. T his peninsula, at the meeting place of Europe and Africa, washed by the Mediterranean Sea and the Atlantic Ocean, was a logical center of overseas expansion. And, just as it had received institutions, cultures, and peoples from Europe and Africa, so from the fifteenth century onward, it sent out people, culture, and institutions to the vast N ew W orld overseas. H e who attempts to trace the roots of Texas institu­ tions must inevitably turn to the Iberian Peninsula, most par­ ticularly that part of it called Spain. Especially must the student of Texas water law examine the Spanish heritage, for its influ­ ence is not confined to the dead past. It is a part of the living present. Viewed from the perspective of water and water law, Spain offers a number of intriguing prospects. Much of it is arid or semiarid; the problems of distributing scarce waters have been known in Spain well over a millennium . One of Spain’s unique

D evelopm ent of W ater Law in Spain


qualities is the Moorish element in her culture, and the Moors brought with them from Africa the techniques which made places in the desert lush and productive. T h e Spaniard is noted for his proud individuality and his fierce devotion to his own pueblo. Spanish history presents a veritable kaleidoscope of peoples, cultures, and religions: Iberians, Celts, Carthaginians, Greeks, Romans, Visigoths, Moors all have contributed to the bloodlines of the Spaniards; Moslem, Christian, Jew, all have left their mark in Spain. A ll of this— the aridity of the land, the ancient irrigation practices of the Moors, the individuality of the people, the adm ixture of cultures and nations— has gone into the development of the water laws and institutions of Spain.

The Land and Its Influence on Spanish History T h e Iberian Peninsula is dominated by a great elevated plateau, the Meseta, which slopes toward the west, gently at first and then precipitously, to the Atlantic. T h e Meseta is ringed by mountains and its interior is cut by ranges running in a generally east-west direction. T h e average eleva­ tion of the plateau is more than two thousand feet. Separate from the Meseta are four mountain systems: the Pyrenees, the Baetic system in the southeast, the Catalan Coast Range in the northeast, and the Basque Mountains in the north. T h e eleva­ tion of the Meseta and the presence of the mountains combine to make Spain’s altitude second only to that of Switzerland among European countries.1 T h e position of Spain between two continents and two seas, its latitude, and its topography combine to give it a climate characterized by complexity, variety, and diversity. In fact, the diversity is so great that it is more accurate to speak of the Span­ ish climates than of a Spanish climate. Am ong the climate types found in Spain are the European, African, Continental, Medii E. D. Laborde, Western Europe, pp. 108-113.


T h e Spanish E lem ent in Texas W ater Law

Fig. 5. Wet and Dry Iberia. Reproduced from E. D. Laborde, West­ ern Europe. terranean, Atlantic, and Alpine. T h e Spaniards themselves have recognized the principal clim atological factors by saying they have two Spains, wet Spain and dry Spain.2 (See Fig. 5.) W et Spain lies along the north and northwest, where the moisture-laden winds from the Atlantic bring annual rainfalls as high as 60 inches. T h e Meseta, cut off from the moisture-bear­ ing winds by mountains, has a general rainfall of less than 20 inches a year, and is a near-desert. A lon g the southeastern coast, searing winds from Africa create a hot, dry climate. T h e defi­ ciencies of moisture as a result of the sparse rainfall in much of Spain are aggravated by the high rate of evaporation in the long hot summers. (See Fig. 6.) Dry Spain occupies the greater part of the country, some 124,800 square miles compared to the 66,200 square miles of wet Spain. “ Both Spains,” says Salvador de Madriaga, “ make Spain: the temperate and the extreme; but 2 Eduardo Hernandez-Pacheco, “ La Peninsula Hispanica en los Tiempos Historicos,” in Ram6n Men6ndez-Pidal, Historia de Espana, Vol. I, p. 50.

D evelopm ent of W ater Law in Spain


Fig. 6. Mean Annual Rainfall of the Iberian Peninsula. Repro­ duced from E. D. Laborde, Western Europe. there is little doubt that the extreme is the more important of the tw o/’ 3 Especially is dry Spain important in the story of Spanish overseas expansion, for most of those who went to the N ew W orld were natives of its territory. O f the connection of dry Spain to the N ew W orld, Arneson says: The conquistadores, who exploited the Spanish Main, were for the most part, recruited from that central plateau of Spain, endeared to the readers of Don Quixote as “La Mancha.” “La Mancha” means the Blot. It is an extremely dry country which is able to support its population only when the utmost care is exercised in the conserva­ tion and use of the scanty rainfall. Respect for water is bred in the bone of the Spaniard, and, while his profession may have been arms abroad, his occupation at home was agriculture.4 Clim ate and terrain combine to make the Spanish rivers dash 3 Spain, p. 15. 4 Edwin P. Arneson, “Early Irrigation in Texas," Southwestern Historical Quarterly, Vol. X X V (October, 1921), p. 121.


T h e Spanish E lem ent in Texas W ater Law

Fig. 7. Irrigation Areas in Spain. Reproduced from E. D. Laborde, Western Europe. instead of flow. Many streams are torrential in nature, with large runoffs following rains and little or no flow much of the year. T h e running waters of Spain are classified as: (1) rios— streams with a constant and regular flow; (2) arroyos— streams which flow less abundantly than the rivers and whose flow diminishes or disappears entirely in the summer; (3) torrentes— streams which flow only at certain times and whose beds are dry the greater part of the year.5 T h e more important river systems, ex­ cepting only the Ebro in the east, drain the westward-tilted Meseta. Irrigation has been practiced for centuries wherever the rivers admit of it. (See Fig. 7.) Spain, then, is a land of “ loftiness, bareness, space.” 6 It is a 5 Federico de Botella y de Hornos, “Inundaciones y Sequias,” Sociedad Geografica de Madrid, Boletin, Vol. X (1881), p. 21. 6 Madriaga, Spain, p. 15.

D evelopm ent of W ater Law in Spain


land cut up by nature into isolated regions, each differing in climate, soil composition, flora, fauna, and the character and customs of its inhabitants. Its location— at the westernmost end of the Eurasian land mass, between the Atlantic and the M edi­ terranean, only a short step from Africa— has meant that the diversity of the land has been matched by that of the peoples who have made it their home.

W a te r L aw and Institutions in Spain Ancient Period: T he Romans and the Moors. “ T h e Spanish/’ Clesson S. Kinney observes, “ are the best irri­ gators on earth.” 7 W hile some would contest this claim, there is no doubt that irrigation does have a long history in Spain. Irri­ gation in Spain goes back at least as far as Roman times. Several irrigation works in central and northeastern Spain existing in the modern period are attributed to the efforts of Roman engi­ neers, But Roman irrigation in Spain was on a small scale, de­ pendent generally on the water-supply systems of the towns, and there is no evidence that any customs or practices connected with the irrigation works survived the confusion of the barbaric invasions and collapse of Roman power.8 Irrigation in modern Spain may be said to begin, therefore, with the Visigoths. A num ber of scholars have pointed out that the irrigation prac­ tices of Spain differ markedly from those of North Africa and Egypt, and these differences are accounted for by the survival of the earlier Visigothic ways among the Moors in Spain.9 T h e Moors, who entered Spain from Africa in the eighth century, brought with them an extensive knowledge of irriga­ tion. T h is they applied to the existing works in Spain, building new and elaborate works, especially in the south and east. T h e 7 Irrigation and Water Rights, Vol. I, p. 272. 8William Hamilton Hall, Irrigation Development, pp. 363, 508; Kinney, Irrigation and Water Rights, Vol. I, p. 113. 9 £. L£vi-Proven$al, “La Vie £conomique de L ’Espagne Musulmane au X e Steele,” in Revue Historique, Vol. 167 (1931). pp. 309-310.


T h e Spanish E lem ent in Texas W ater Law

achievements of the Moors in constructing irrigation works have been well described by S. P. Scott: Every encouragem ent was afforded by a succession of wise and gen­ erous rulers to those w ho em braced an agricultural life. A consider­ able portion of the country w hich had never been subjected to till­ age because of its aridity became suddenly m etam orphosed, as if by the wand of an enchanter. Barren valleys were transform ed into flourishing orchards of olives, oranges, figs, and pom egranates. R ocky slopes were covered w ith verdant terraces. In districts where, accord­ ing to ancient tradition, no water had ever been seen, now flowed noisy rivulets and broad canals. W here marshes existed, the rich lands they concealed were drained, reclaim ed, and placed under cu ltivation .10

T h e hydraulic engineers of the Moors made use of every known device for getting water to the thirsty land: reservoirs, wells, sluices, tunnels, siphons, and aqueducts. T h e y adopted and improved the irrigation methods of the Egyptians. From the Persians they learned the use of a wheel with rows of jars on its periphery, which, propelled by cattle or the current of the stream, pumped water to lands higher than the irrigation ditches. T o survey the fields and establish grades the Moorish engineers used the astrolabe. T h e engineering works which the Moors constructed in Spain in the eighth and subsequent centuries were remarkable for size, efficiency, and permanence. T h e dam at Elche was 264 feet long, 52 feet high, and 150 feet wide at the bottom. T h a t over the Segura, near Murcia, was 760 feet long and 36 feet high. T h e subterranean aqueducts of the Moors, cut through solid rock, were as much as 36 feet in diameter and so skillfully constructed that overflows were unknown even in times of flood. T h e Moors were also especially versed in the use of the principle of the siphon in transporting water. T h e great siphon at Almanzora was 6 feet in diameter and passed 90 feet under the bed of a mountain stream. So well constructed were these works that they have needed few repairs for a thousand years.11 10 History of the Moorish Empire in Europe, Vol. II, pp. 600-601. 11 Ibid., pp. 601-602.

D evelopm ent of W ater Law in Spain


As they constructed the marvelous physical works, the Moors also developed laws and customs for their administration. Mos­ lem law, closely related to religion, took its central concepts from the Koran. Since law was regarded as deriving from the w ill of God, obedience to it was a religious as well as a social duty. O f great importance in Moslem law was the view that the true followers of Mohammed constituted a community, among whose members m utual help in time of need was a legal duty. T h is concept of community and mutual help is reflected in Moslem water law. Reflected there also is the high regard in which the Moslems held agriculture, commerce, and all other forms of useful activity.12 Mohammed taught that water was “ the perfect, indispensable, and priceless element of purification to obtain a state of grace.” 13 From water, said the Koran, every living thing was made. T his precious commodity was to be available to all Moslems. Accord­ ing to Moslem tradition, to deny surplus water to one in need was to risk eternal punishment: “ T o the man who refuses his surplus water, Allah w ill say: 'Today I refuse thee my favour, just as thou refused the surplus of something that thou hadst not made thyself.’ ” Another saying was, “ N o one can refuse surplus water without sinning against Allah and against man.” 14 N either man nor beast was to be deprived of water when it was available. T o prevent hoarding of water in irrigation, Moham­ med decreed that the quantity of water retained on the fields was not to reach above the ankles. T o discourage the appropria­ tion of water, he prohibited its sale.15 These basic principles laid down by Mohammed remained central in later Moslem law, but as new situations developed and various schools of law appeared, there was further elabora­ tion of water law in the Moslem world. Am ong the important concepts that developed were those of the right of thirst, irriga­ 12 D. de Santillana, “ Law and Society,” in The Legacy of Islam, pp. 285290. 13 Caponera, Water Laws in Moslem Countries, p. 15. 14 Ibid., pp. 15-16. 15 Ibid., p. 17.


T h e Spanish E lem ent in Texas W ater Law

tion rights, and the right of transferring or disposing of water rights. T h e right of thirst was the right to quench one’s thirst and to water animals. T h is was a right of both Moslems and nonMoslems. W ater was classified into three categories: (1) large bodies of water which were res nullius and in which the right of thirst could be exercised freely; (2) appropriated waters, waters belonging either to a group of individuals or privately held; the right of thirst was restricted in these cases to extreme need or the requirement of paying for the water; (3) wells and springs dug on land which was not privately owned. In this third case water rights were regulated on the basis of the needs of the parties involved and the labor invested.16 Laws relating to irrigation rights were well developed. T h e community had rights in large bodies of water, including lakes and rivers. Individuals could acquire irrigation rights in water from small rivers, canals, or wells. In the case of irrigation from rivers, upstream lands were to be irrigated before lower ones, and the quantity of water retained was not to reach above the ankles. Irrigation canals were the joint property of those who built them; only those who had contributed to the construction of the canals were entitled to use the waters. T h e system of dis­ tributing water— whether in shares of certain portions of the supply or of certain periods of time— was established by the m utual agreement of the users. T h e person who dug a well became the owner of the water and the sole holder of the irriga­ tion right. Some bodies of Moslem law provided, however, that surplus water must be made available to other irrigators. In Moslem law, long possession of an irrigation right tended to establish that right at law. W hen disputes occurred, the princi­ ple of m aintaining the status quo was followed unless clear proof of the claims was presented.17 Some schools of Moslem law prohibited the sale of water ex­ cept in small receptacles; others placed few restrictions on its sale. T his same ambivalence was true of the sale of irrigation 16 Ibid., pp. 19-20. 17 Ibid., pp. 21-25.

D evelopm ent of W ater Law in Spain


rights, some perm itting full freedom of action in disposing of water rights and others allowing their transfer only by inherit­ ance or sale of the land.18 In general, Moslem water law pro­ vided that no changes could be made in existing water rights without the consent of the holders of those rights. T his princi­ ple of protecting existing rights also meant that new wells could not be bored within certain prescribed distances of springs, wells, and canals.19 T h e care and cleaning of irrigation canals was the responsibility of the co-owners. In summary, Moslem water law attempted to provide a m ini­ mum of water to all through the right of thirst. It provided de­ tailed regulations for irrigation, with great variation in those regulations from one locality to another. It recognized usage as the basis of water rights and tended to protect existing rights. It gave considerable control over water to those who held in­ terests in canals or wells. These owners distributed water among themselves, provided for the regulation of the distribution, and were responsible for the upkeep of the canals. T w o influences can be seen at work in the shaping of Moslem water law. One was the importance of the community, of the faithful followers of Allah, which is reflected in the administra­ tion of waters by the community. In short, back of this water law stood the sanctions of religion. A second influence was the Moors’ experience in arid country where water, not land, was the important element in production of wealth. As a result of this experience, they recognized the importance of water rights and granted perpetual rights to water for irrigation to those who were best able to use them.20 It is difficult to establish with certainty the details of Moorish water customs in Spain, since what has come down to the pres­ ent is an amalgam of Moorish, Christian, and modern practices. It is clear that there was considerable variation from one area to another. One of the best-known of the irrigation regions of 18 Ibid., 19 Ibid., called the 20 Ibid.,

pp. 27-28. pp. 29-31. The “forbidden area” around a well or spring was “harim.” pp. 39-40; Hall, Irrigation Development, p. 365.


T h e Spanish E lem ent in Texas W ater Law

Moorish Spain was Valencia. Since the laws and customs of Valencia have had a great deal of influence on m odem Spanish water law, it seems desirable to describe briefly the system of water rights which developed there. In Valencia water rights attached to the land, and land could not be sold without the accompanying water right. T h e water was divided into units called “ threads of water,” which were not fixed amounts of water but a fixed proportion of the total avail­ able. T h e operations of the canals which provided water were regulated by a separate community, or water association, for each canal. T h e community was made up of the irrigators who met in a general assembly to elect officers, to discuss the business of the community, and to vote taxes. T h e assembly chose from among the irrigators the chief official, the syndic, who adminis­ tered the water works. Various employees supervised the clean­ ing and maintenance of the canals, inspected the construction of new works, supervised the apportioning of water, and guarded the canals and headworks. O ver the various community water associations was the spe­ cial T rib u n a l of Waters of Valencia, which has been called “ the most noteworthy feature of the system of administration which has descended from the Moors.” 21 T h e tribunal, which was made up of the syndics of the eight water associations, had both administrative and judicial functions. Its principal administra­ tive duty was to apportion water among the various water com­ m unities during times of scarcity. T h is apportionment was based on ancient concessions and usage and reflected the Moors’ reali­ zation that in times of drought the independence of the com­ m unity must yield to a central authority.22 In its judicial ca­ pacity the tribunal did not deal with questions of title to waters or lands but only with questions of fact, of regulation, and of policing of irrigation. In these matters its powers were absolute for those who appeared before it, though an irrigator m ight refuse to appear, in which case the dispute went to the ordinary 21 Hall, Irrigation Development, p. 395. 22 Ibid., pp. 393, 396.

D evelopm ent of W ater Law in Spain


courts, where proceedings were protracted and costly. In almost every case, litigants preferred to appear before the T rib u n al of Waters, which was highly respected and popular because of the speed and competence with which it settled disputes. In other areas of Moorish Spain, notably at Elche and Lorca, water came to be separated completely from the land, and water rights were bought and sold daily at public auction. In still other places water was administered in somewhat the same way as in Valencia except that the water associations were less demo­ cratic and there were no water tribunals.23 W h ile the variations in local customs and laws make generalizations difficult, one can be fairly safe in concluding with W ells A. Hutchins that “ the common proprietorship of water supplies, public construction of irrigation works, and the administration of local irrigation affairs by separate communities were very important features of Moorish” institutions.24 It is also clear that Moslem water law was based on the concept of beneficial use.25 Most authorities agree that the Spanish laws for the adminis­ tration of waters for irrigation are largely of Moorish origin.26 It is interesting to note that the entire vocabulary connected with irrigation in Spanish derives from Arabic sources.27 T h e words acequia, meaning “canal” or “ditch,” noria, “chainpum p” or “draw w ell,” and acena, a “ water m ill,” are examples of terms with Arabic roots. According to Clesson S. Kinney, Spain inherited laws for the regulation of agriculture and irriga23 For an extended description of local water-customs, see ibid., pp. 399-

43224 "The Community Acequia,” Southwestern Historical Quarterly, Vol. X X X I (January, 1928), p. 264. 25 Hall, Irrigation Development, p. 365; Kinney, Irrigation and Water Rights, Vol. I, p. 257. 26 Hall, Irrigation Development, p. 366; Rafael Altamira y Crevea, "Spain,” in A General Survey of Events, Sources, Persons, and Movements in Continental Legal History, Vol. I, pp. 604-605. Cited hereinafter as Altamira y Crevea, Continental Legal History. For the view of a French en­ gineer who minimizes the Moorish contribution, see Hall, Irrigation Devel­ opment, p. 489. 27 £. L^vi-Proven^al, “La Vie ficonomique de L ’Espagne Musulmane au X e Sifccle,” in Revue Historique, Vol. 167, p. 310.


T h e Spanish E lem ent in Texas W ater Law

tion of lands as just and beneficent as any known in the ancient world.28 T h e Moorish law resembled the modern law of prior appropriation in some respects, especially in perm itting the diversion of water and in emphasizing the principle of beneficial use. Its rules were better adapted to an irrigated country than those of either the common law or the C ivil law.29 Although much of the Moors’ civilization was subsequently destroyed in Spain, their irrigation customs survived and became a part of Spanish water law and institutions. T h e Spaniard brought with him to the New W orld a system of irrigation and concepts about water usage which he had acquired in large part from the Moors.30 Development of Water Law in Medieval Spain. T h e Reconquest and the eventual expulsion of the Moors meant a change in sovereignty in the irrigation regions of Spain, but Moorish water law and customs were left largely intact. T h e Christian kings were eager to maintain peace and w illing to recognize existing water rights to win the support of the popu­ lace. In some instances special royal grants were made confirm­ ing water rights. In Valencia, for example, the king gave the irrigating landholders possession of the seven small canals of the area. T h e grant provided: We give and concede forever to all of you united, and to each one of the inhabitants, . . . all and every of the canals, unincumbered and free, great and small, with their waters, headgates, and conduits of these same waters, as well as the spring waters, with the exception of the Royal canal. . . . From which canals or springs you will pos­ sess yourselves forever of the waters . . . whether by night or by day, in such a way that you can always irrigate and take the water with­ 28 Irrigation and Water Rights, Vol. I, p. 114. 29 Ibid., p. 257. 30 F. C. Barker, who had lived in Spain a number of years and later settled in the Mesilla Valley of New Mexico, comments on the striking similarities between the irrigation practices of the Mexicans in the Mesilla Valley and those he had observed in Valencia in Moorish Spain.— Irrigation in Mesilla Valley, New Mexico (U.S. Geological Survey, Water Supply and Irrigation Papers, No. 10), pp. 12, 23-24.

D evelopm ent of W ater Law in Spain


out servitude, w ithou t contribution, and w ithout tribute; in fine, you w ill enjoy the said waters according to what had been anciently established and practiced from the time of the Saracens.31

T h e continuation of local customs and laws regarding water in the formerly Moorish sections was one factor in creating a body of local water law. A second factor was the role of the pueblo in Spain. A recent writer has commented, “ T h e pueblo is a highly centralised community, both structurally and also emotionally. In Spanish political jurisprudence it is the ‘natural’ unit of society compared with which the state is an artificial structure.” 32 T h e pueblo or m unicipality in Spain can be traced back to Roman times. During the Visigothic period it was weakened but it survived. During the Reconquest and the con­ current struggle between the kings and nobles for power in the later M iddle Ages, the towns were able to grow in size and in strength. T h ey were important as fortified centers, holding the land against the Moors, and as colonizing centers, from which to plant new settlements. Because of their strategic importance they were able to obtain grants of privileges— fueros. Because of the needs of defense, they were able to extend their control over the lands around them. T h u s were acquired the terminos of the towns. T h ere is no exact English equivalent for termino. T h e word is translated “ land contiguous to a city, villa, etc., and subject to its jurisdiction.” T h e termino belonged to the m unicipality or pueblo as a unit or legal person, and it was ad­ ministered in accordance with special rules. Various classes of property rights pertained to the termino, including woodlands, pastures, and open places for assemblies. More important for our purposes were the rights relating to water, such as fuentes, “ springs of water for domestic purposes and irrigation” ; aguas, “ waters and water-courses for irrigation” ; and abrevaduas, “ places for watering cattle.” 33 31 Quoted in Hall, Irrigation Development, p. 386. 32 J. A. Pitt-Rivers, The People of the Sierra, p. 30. For a description of the irrigation institutions of a contemporary Spanish pueblo, see ibid., pp.

35—4 1-

33 Hall, Irrigation Development, p. 368. For a discussion of the proper-


T h e Spanish E lem ent in Texas W ater Law

A system thus grew up in Spain in which waters were held by municipalities as a common property for domestic use, irriga­ tion, and other purposes. U tilization of water was free to all in­ habitants of the town, subject to m unicipal regulations and the control of m unicipal officials. W ithin each termino all running water available for irrigation belonged to the pueblo. T h e m unicipal water law which developed in the Spanish pueblos was of more immediate concern and application than was the body of laws relating to water which the central government came in time to promulgate. It was the local customs and regu­ lations with which the ordinary citizen was most familiar, and it is reasonable to assume that it was this system which the Spaniards carried with them to the N ew W orld. Eventually, this body of local water law contributed greatly to the development of a unified system of water law in Spain, but that achievement was not to be realized until the nineteenth century.34 In contrast to this local law and custom stood the law of the central government, of the kings, ever striving to increase and consolidate their power. Because each new people that came to Spain, whether as conqueror, colonizer, or merchant, brought its own laws, Spain is noted for the num ber and variety of its legal codes. Frank W . Blackmar has written that compilations of Spanish law were made with such regularity and such thor­ oughness that “ it may be said that they represent the best part of the history of the Spanish people.” 35 Am ong the important early codes was the Fuero Juzgo/ 6 which was the result of the unification of Hispano-Roman and ties of the Spanish municipalities, see the “Institutes of Ignatius Jordon de Asso y Del Rio and Miguel de Manuel y Rodriguez/’ Bk. 2, T itle 1, Chap. 6, translated in Joseph M. White, A New Collection of Laws, Charters and Local Ordinances of the Governments of Great Britain, France, and Spain . . . , Vol. I, pp. 71-78. White’s work will be cited hereinafter as White, New Recopilacion. 34 Hall, Irrigation Development, p. 371. 35 Spanish Institutions of the Southwest, p. 25. 36 Known also as the Codex legum, Liber gothorum, Lex visigothorum, Liber judicum, and Forum judicum. Fuero juzgo is a contraction of fuero de los jueces, (“ law of the judges”).— Thomas W. Palmer, Jr., Guide to the Law and Legal Literature of Spain, p. 28.

D evelopm ent of W ater Law in Spain


Germ anic law by the Visigoths at the close of the seventh cen­ tury. Its provisions in regard to water are few and simple. A c­ cording to the code, a man who cultivates land where there is a ford must enclose his crops with a fence. If he does not, he is not entitled to damages.37 A more important law relating to water was Law 29 of Book 8, T itle 4, which provided: “ N o one shall for his own private benefit, and against the interests of the com­ munity, obstruct any stream of importance; that is to say, one in which salmon and other sea-fish enter, or into which nets may be cast, or vessels may come for the purpose of commerce.” 38 A man m ight build a fence to the middle of the stream along his land, but he must leave half the stream free for the use of others. T h is early Visigothic code provided penalties for anyone who injured a m ill or a m ill pond or other artificial body of water.39 T h e final law in the code regarding water is of special interest because it establishes the fact that the Visigoths had a fairly well-developed system of irrigation. T h e law, issued by Flavius Recesvintus, king, states: T h e re are m any districts where little or no rain falls, and where w ater is supplied by streams; and it has been found that w herever such streams fail, no crops can be raised. H enceforth, w herever there are any im portant streams, and anyone secretly, or m aliciously takes w ater from the channels of others, he shall pay a solidus for every fou r hours that said water runs. W here said streams are o f sm aller size, he shall pay one tremisa for every four hours that said w ater runs, as aforesaid. A n d for as m any hours as the w ater is proved to have flowed upon the lands o f others, for an equal num ­ ber of hours the supply of w ater shall be restored to the owner. If a slave should com m it such an act of his own accord, where water is taken from large streams he shall receive a hundred lashes, and w here it is taken from small streams, fifty lashes.40

In Christian Spain the Fuero Juzgo continued in effect to a 37 Bk. 8, T itle 4, Law 28, in S, P. Scott (trans. and ed.), The Visigothic Code (Forum Judicum), p. 295. 38 Ibid., pp. 295-296. 39 Bk. 8, T itle 4, Law 30, in ibid., p. 296. *° Bk. 8, T itle 4, Law 31, in ibid., pp. 296-297.


T h e Spanish E lem ent in Texas W ater Law

greater or lesser extent during the time of Moorish dominance. It represented the triumph of the Germ anic element in Spanish law and the eclipse of the earlier Roman influence. In the thirteenth century the kings of Spain, eager to simplify and centralize the law to increase their own powers, reintroduced Roman law, newly rediscovered in the West, into Spain. T h e most important step in this process was the compilation of Las Siete Partidas during the reign of Alfonso X of Castile in the years 1256-65. T h e jurists of the king used the fueros and cus­ toms of Castile and Leon, the canon law, the Pandects of Jus­ tinian, and the works of Italian commentators in drawing up this code of seven parts, but they relied most heavily on the Roman and canon law. In incorporating much of Roman law into the Partidas, the scholars of Alfonso made that body of law available in the vernacular and established a Roman foundation for the Spanish legal system. T h e significance of the Partidas stems in large part from its reproducing and spreading the prin­ ciples of Roman law rather than from its originality. T h e Parti­ das has been termed “ by far the most valuable monument of legislation, not merely of Spain, but of Europe, since the pub­ lication of the Roman (Justinian) Code.” 41 In Spain the Partidas has come to occupy the same place of prestige and primacy as that held by the Constitution in the U nited States. In addition to its importance as fundamental law, the Partidas is a summa of the learning of thirteenth-century Spain.42 T h e provisions in Las Siete Partidas relating to water are drawn in large part from Roman law, as one would expect. T h e Partidas, following Justinian’s Code, divides things into differ­ ent classes: . . . some belong to birds and beasts and all other liv in g creatures as w ell as men, to m ake use of; and some belong to hum an beings; and some belong w holly in com mon to some city, town, castle, or other 41 Samuel Astley Dunham quoted in the introduction to S. P. Scott (trans. and ed.), Las Siete Partidas, p. lvii. 42 Altamira y Crevea, Continental Legal History, Vol. I, pp. 621-622; John Thomas Vance, Background of Hispanic-American Law, pp. 100-103; Scott, Las Siete Partidas, pp. lvi-lvii.

D evelopm ent of W ater Law in Spain


place where men reside; there are some w hich belong exclusively to every m an who can obtain or lose their ownership; and there are others w ho [which] do not belong to anyone and cannot be included in his possessions. . . ,43

T h e air, rain, water, the sea and its shores are among those things which belong in common to the creatures of this world.44 Rivers, along with harbors and public highways, belong to all persons in common.45 Thus, the Partidas establishes in Spanish law the principle that running water is held in common and belongs to all men. T h e Partidas went to greater lengths than did Roman law to protect the common use of rivers. Even parties from foreign countries were entitled to use the rivers on the same basis as the inhabitants of the country. Further, though the banks of rivers were the property of those whose lands included them, never­ theless every man had a right to use the banks to moor vessels, repair his ships, and land merchandise; and fishermen had the right to deposit their fish and sell them, to dry their nets, and to use the banks for every purpose necessary to their trade.46 T h e Partidas forbade the erection of any structure in, or on the banks of, a navigable river that would interfere with the com­ mon use of the river. Should such a structure already have been built, it was to be demolished, for, said the law, “ it is not proper that the general benefit of all persons should be interfered with, for the profit of a few.” 47 Like Justinian’s Code, the Partidas included among servi­ tudes the right to cross another’s land to secure water, “ for mills or to irrigate gardens or other real property.” 48 Those who had such a servitude were required to maintain the ditch, aqueduct, canal, or pipe through which the water flowed so that no dam­ age would be caused. W here the supply of water was small, it was to “ be conducted by means of earthen tiles; or leaden pipes underground.” As in Roman law, a servitude could be acquired 43 Partida 3, Title from the translation 44 Ibid., Law 3. 46 Ibid.

28, Law 2. Quotations from the Partidas are taken of S. P. Scott. 45 Ibid., Law 6. 47 Ibid., Law 8. 48 Ibid., Title 31, Law 4.


T h e Spanish E lem ent in Texas W ater Law

by grant, bequest, or the lapse of time. W here the water was used daily and the owner present, a servitude could be acquired by ten years’ usage. If the owner was absent, the time was ex­ tended to twenty years. W here use of the water was only occa­ sional, a servitude could be gained only by making use of the right “ for so long a time that men cannot remember when they began to do so.” 49 Servitudes could be lost if the right was not exercised.50 If a man had the right to irrigate from a spring lo­ cated on the property of another, the owner of the spring could not grant authority to use the water to a third party, without the consent of the original water-user unless there was enough water for both users.51 T h e provisions relating to the common holding of waters and servitudes were drawn largely from Roman law; there were water laws in the Partidas, however, which were based on local customs and usage. Am ong these was the provision that the fountains and squares where fairs and markets are held, . . . and all places sim ilar to these established and granted fo r the com m on benefit o f every city, town, castle, or other com m unity, belong to the latter in common. For every m an w ho is a resident o f them can use of all these aforesaid things, and they are the com m on property of all, of the poor as well as the rich, bu t those w ho live elsewhere can­ not use them against the w ill or p roh ibition of the residents of said places.52

Several laws of Partida 3, T itle 32, prohibit the construction of anything which prevents water from running in its accustomed place or obstructs the current so that “ others who are accus­ tomed to make use of it cannot irrigate their lands by it, as they were formerly accustomed to do.” 53 T here were also provisions for clearing out the channels of streams. If a channel became clogged, even by natural means, so that the water ceased to flow in its former place, a man who suffered as a consequence could compel the party on whose property the obstruction was located 49 Partida 3, Title 31, Law 14. 50Ibid., Law 5. 51 Ibid. 52 Ibid., Title 28, Law 9. 53 Ibid., Title 32, Law 13. See also Laws 15, 16.

D evelopm ent of W ater Law in Spain


to clean the channel or permit him to do it. If the obstruction was in a canal belonging to several persons, everyone on the boundary of the land was to assist in restoring the channel so that the water might flow as it was accustomed to do.54 One law of the Partidas related to ground water. It provided that a man could dig a well or open a spring on his own land, even if his action reduced the flow of a neighbor’s w ell or spring. If, however, the w ell was dug out of malice, with the intention of injuring or defrauding another party, the injured person could secure relief. T h e guilty person was required by law to stop his digging or to close up any openings he had made.55 T h e Partidas, though completed by 1265, was not formally recognized as a common law for Spain until 1348 by the Ordenamiento de Alcala. It eventually came to occupy a central place in Spanish jurisprudence and is still cited as authority. T h e pro­ visions of the Partidas relating to water likewise became the foundation on which the water law of the central government was based. Am ong the basic concepts regarding water in the Partidas were the common ownership of running waters, pro­ tection of the navigability of rivers, the servitude of aqueduct, provision for irrigation, and recognition of town rights.56 Spanish Water Law at the End of the Colonial Period. Following the Partidas, a number of codes or collections of Spanish law appeared, including the Ordenamiento de Alcala of 1348, the Leyes de Toro of 1505, the Nueva Recopilacion of 1567, and the Novisima Recopilacion of 1805. These new col­ lections did not abrogate the old ones, and thus to determine 54 Ibid., Law 15. 55 Ibid., Law 19. 56 Eugene F. Ware, who compiled a work on Roman water law in which he included the provisions of the Partidas relating to water, held that those provisions were of little value. He included them, he said, “only because they are the only fresh water law in the Spanish Code at the date of the dis­ covery of America, and are the basis of the Mexican laws upon the subject.” In Ware's view, the Partidas was “mainly a condensation of the Pandects’' and reflected a civilization which was crude and barbaric compared to that of Rome.— Roman Water Law, pp. 17-18, 141. Ware seems to have belittled the Partidas for its lack of originality without considering the place it has occupied in Spanish and Hispanic-American law.


T h e Spanish E lem ent in Texas W ater Law

the law on any subject it was necessary to examine all the codes. T his task was undertaken by various writers whose work came to be regarded in the courts as authoritative. Am ong the bestknown o£ these writers was Joaquin Escriche y M artin, who published a general encyclopedia of legislation and court re­ ports in 1831. In com piling this work he was assisted by some of the leading jurists of Spain, and his Diccionario is still used as authority in Spanish-American courts.57 Escriche’s treatment of water law is found in his articles “A gua,” “A cequia,” “ R io,” and “ Ribera.” 58 He begins with the Partidas9 statement that rivers belong to all men in common. T h e n he distinguishes a river, which runs “ perpetually and from time immemorial,” from a torrent, which flows only “ after abundant rains, or the extraordinary melting of snow so that it runs only a certain time and its bed is left dry a greater part of the year.” Public utility must take precedence over individual good in the use of rivers, and the navigability of rivers was al­ ways to be protected.59 W hat of the waters of the rivers? T o whom did they belong under Spanish law? Escriche says, “ of waters that belong to the public” : W aters w hich are not nor can not be private property belong to the public. Such are the waters of the rivers w hich by themselves or by accession w ith others follow their course to the sea. T h ese m ay be navigable or not navigable. If they are navigable, nobody can avail him self of them so as to hinder or embarrass navigation; bu t if they are not, the owners of the land through w hich they pass m ay use the waters thereof for the u tility of their farms or their industry, w ith ou t prejudice to the com mon use or destiny w hich the towns on their course shall have given them, and w ith the m odifications provided in 57 Palmer, Guide to the Law and Legal Literature of Spain, pp. 16, 35. 58 Joaquin Escriche, Diccionario Razonado de Legislacion y Jurisprudencia. Hereinafter cited Escriche, “Agua,” etc. There is a translation of Escriche’s articles on water in Frederic Hall, The Laws 0/ Mexico, pp. 401409. William Hamilton Hall, Irrigation Development, translates most of Escriche on the same subject. 59 Escriche, “Rio.”

D evelopm ent of W ater Law in Spain


the laws, orders, and decrees which are spoken of under the word “acequias.” 60 T h e article referred to states: Nobody can open into a navigable river an acequia or channel which embarrasses navigation; and that one which may now be made, whether new or old, must be closed up or destroyed at the cost of the owner, because public utility must be preferred to that of a pri­ vate person: Law 8, Title 28, Partida 3. But not being a navigable river, any resident of the town where it passes may extract a part of its water and construct an acequia in order to irrigate his lands or to run his mill or water-mill or for any other object which interests him, provided he may do it without injury to the common use or destiny which the town shall have given the water; under the sup­ position that if the acequia should have to cross the ground of the pueblo lands (concejil), a license from the owner, or of the king or council, would be indispensable. It is thus deduced from law 8, title 28, and from law 18, title 32, partida 3; and so the authors com­ monly judge, forming their opinion on said laws and on the Roman laws.61 According to Escriche, then, the waters of all rivers which eventually found their way into the sea were public. Naviga­ tion was given priority, and no one could use the waters of a navigable stream in such a way as to impair navigation. But, if water could be taken from the river without jeopardizing navi­ gation, the owners of the land through which it passed or any resident of the town along its course could take water from the stream for any useful purpose. This taking of water, however, was possible only if it did not prejudice “ the common use or destiny which the town shall have given the water.” T h e local laws and customs, in other words, regulated the taking of water to a great extent. In the case of waters for whose use neither the central govern­ ment, municipal ordinances, nor the uses and customs of the 60 Escriche, “Agua,” translation in Frederic Hall, The Laws of Mexico, p. 411. 61 Escriche, “Acequia,” translation in ibid., pp. 414-415.


T h e Spanish E lem ent in Texas W ater Law

country made provision, Escriche drew up rules which were dictated, he said, “ by equity and the interests o£ agriculture.” Am ong the more important provisions of this section of Escriche are the following: The waters of fountain heads and springs are the property of the owners of the lands on which they rise or of the lower fields, who have acquired the right to their utilization, as long as they remain within their precinct, but as soon as they flow out of it, they become running waters, aqua profluens, and belong, like all common things, to the first who may occupy them, as far as he needs them. The first person who can make use of them are the owners of the properties which they wash or cross. If running water passes between the properties of different own­ ers, each one of the latter can use it for the irrigation of his prop­ erty, or for any other object; not entirely, however, but only in the part that belongs to him, because all have equal rights, and conse­ quently, they can prevent each other from taking more than their respective shares. When the water passes within a property, the owner can use it arbitrarily, for, since the both banks are his, he has not to subject himself to the interests of another riparian owner; but at the outlet of his estate, he must return it to its natural or ordinary channel, without having power to absorb it, or entirely consume it, nor give it another direction, because it does not belong to him as a prop­ erty, but only to the extent of the use which he can make of it in its passage. Since, then, every riparian proprietor can use the water which passes by the edge of his property to irrigate it, it is clear that he can open drains, irrigating canals and ditches, and even construct a dam or other structure to take and carry it to his property, provided he does not make it overflow the higher lands against the will of their owners, or inundate the lower lands in a way that may cause in­ juries, nor hold it in such a way that the neighbors are deprived of their accustomed irrigation.62 T h e preceding fu ll quotations from Escriche have been given because the courts in Texas have used Escriche, especially in 62 Escriche, “Agua,” translation in William Hamilton Hall, Irrigation De­ velopment, pp. 374-375.

D evelopm ent of W ater Law in Spain


the translation in Frederic H all’s T he Laws of M exico, exten­ sively as authority for their findings in regard to Spanish water law. T h e most important single question involved is whether the Spanish law was a riparian system in the modern sense. W ithout presuming to go into the matter as exhaustively as the lawyers and the courts, the student of history may be permitted the following observations: 1. Both the history of the development of Spanish water law and Escriche’s own commentary point to the central importance of local laws and customs in governing the use of water. As W il­ liam Hamilton H all notes, there were no riparian rights, as such, in this local law. He states: All cultivable lands of the towns belonged to the towns until ap­ portioned out to their inhabitants. All running water available for irrigation, within their terminos, belonged to the towns, notwith­ standing apportionment. Hence, there was no conflict by reason of riparian claims, for under such circumstances there was no riparian right. As between different grantees of land from the government, or as between communities, this right was known.63 In describing the various systems of local water law, H all never uses the word “riparian.” In Escriche’s commentary there is no mention of the term until he gets to those waters not covered by central or local regulations and for which he submits a code of his own drafting. Escriche’s own statement is: The use of the running waters which are not of those which any­ body can avail himself without a license from the authority, must be regulated by the provisions of the municipal ordinances, or by the uses and customs of the country; but in default of ordinances and customs, equity and the interests of agriculture dictate the fol­ lowing rules.64 It is pertinent to note that Escriche was writing in the first decades of the nineteenth century, shortly after the introduc­ tion into Spain of the Napoleonic Code, with its riparian fea­ tures, and at a time when French influence on Spanish legal 63 William Hamilton Hall, Irrigation Development, p. 371. 64 Translation in Frederic Hall, The Laws of Mexico, p. 411*


T h e Spanish E lem ent in Texas W ater Law

thought was at its height. Samuel C. W iel comments, “ Escriche’s Diccionario of Spanish law is, upon the subject of waters, not much more than a commentary upon the Code Napoleon, although subsequent Spanish legislation has made some changes/’65 W illiam H am ilton H all accepts Escriche’s writings on rivers as being ‘ well authenticated by the laws which he cites, and . . . in accord with later compilations.” But his sections on small streams, springs, and rain and torrent waters H all regards as “very largely his own views of what ought to be for the sake of ‘equity and the interests of agriculture.’ ” H all adds: H is system of riparian rights seems rather to have been founded on French than on Spanish law; for he accords all rip arian proprietors on small streams an equal right of servitude to the waters, w hich is the French law, bu t for w hich I find no sufficient auth ority in the old Spanish laws; and the new Spanish laws . . . clearly do not rec­ ognize or establish any such doctrine.66

2. Riparian owners did have certain rights or privileges under Spanish law. Because of their location, they had access to the waters which others did not. T hus they were in an advantageous position to make use of the waters. T h e importance of this means of access has been stressed by the riparian advocates. In the case of springs or other waters arising on a m an’s land, his control was unlim ited unless the pueblo needed the water or someone had acquired rights by prescription.67 3. W h ile the riparian owner had certain advantages, the sys­ tem of servitudes made ample provision for the nonriparian landholder to obtain water rights which the law respected and protected. 4. It w ould appear that there is much to be gained from look­ ing at Spanish water law as it actually operated rather than sim­ ply relying on such authorities as the Partidas and Escriche in 65 Wiel, “ Origin and Comparative Development of the Law of Water­ courses in the Common Law and in the Civil Law/’ California Law Review, Vol. VI, p. 256; Altamira y Crevea, Continental Legal History, Vol. I, pp. 675, 680-681. 66 William Hamilton Hall, Irrigation Development, p. 382 n. 67 Escriche, “Agua.”

D evelopm ent of W ater Law in Spain


interpreting the law. These authorities, to a great extent, de­ scribe the water law of the central government. T his body of law, as I have tried to make clear, was only a part of the law, for Spanish water law reflected that duality which seemed om ni­ present in Spanish law. T here was, it must be stressed, also the water law of the pueblos and municipalities, based on ancient customs and practices going back in many cases to the Moors. Alongside this body of local law and customs there grew up the general law of water, the law promulgated by the central gov­ ernment. T h e local water laws and customs, rooted in the con­ cept that water belonged to the community or pueblo and could be used by all citizens subject to municipal rules and regula­ tions, were more familiar to the people as a whole and of greater relevance than the laws of the central government. T o look at the Spanish laws historically— as they actually developed and functioned, rather than statically, through the medium of law books— should eliminate some of the difficulties that have arisen in present-day interpretations of the law. In conclusion, let me summarize the development of water law in Spain down to the colonial period. First, let it be noted that the Spaniards came from a land where water was scarce and they recognized its life-giving importance. Escriche begins his commentary on “A gua” with this observation: “As water is on the one hand capable of causing serious damages and, on the other, the blood of the land and the life of the country, it gives occasion to questions of much importance and has been the object of much of our ancient law.” Second, the existing water laws of Spain had grown out of the experiences of some of the best irrigators of the time. T h e Spaniards were accustomed to irrigation; in many parts of Spain, irrigation and cultivation were synonymous terms. T hird, Spanish water law had grown out of a dual source: the customs and uses of the communities and the promulgations of the central government. Finally, cer­ tain concepts stand out clearly in Spanish water law. Perennial rivers and their waters were regarded as public. N o one could do anything to impair or obstruct navigation. A ny person was


T h e Spanish E lem ent in Texas W ater Law

free to use the rivers for navigation and fishing. So far as taking water for irrigation was concerned, the availability of water and the rules and regulations of the towns and government were the determ ining factors. Once a person had established his right to use water, the law protected him in it so long as he used it. T o a great extent the Spanish system was one in which water rights were administered by the laws and customs of the water asso­ ciations, stemming from the Moorish past, with its fellowship of the faithful; of the pueblos, whose proud independence was the quintessence of the Spanish spirit; and of the central govern­ ment, ever seeking to extend its powers. Drawn from Roman, Moorish, and Gothic sources, this body of law reflected its di­ verse origins, but it also showed the mark of the Spaniard him ­ self, in whose bone was bred respect for water.

IV. Hispanic-American Water Laws and Institutions It is nigh impossible for a dweller in a land where water is plentiful and taken for granted much as air and sunlight to grasp the full significance of Mexican waterlessness. It has modified, even determined, Mexi­ can history, religion, health, and habits. Water has been a motive for worship and combat in Mexico from time immemorial. One need but live briefly in one of the countless desiccated, dust-smothered pueblos of the mesa, or note the instant barrenness of every protuber­ ance from even the most fertile valley floor, to sense the profound bearing of Mexico’s meterological and hydrographic heritage. E r n e s t G r u e n in g , Mexico and Its Heritage


h e y ea r 1492, with a neatness not often encounered in history, with tne the expulsion of Moors ierea nistory, witnessed, witn or the me moors rom Granada, the end of the Reconquest in Spain, and the from beginning of the conquest by Spain of a New World. Spanish institutions, including water laws and customs, were trans­ planted to a vaster area than the Iberian Peninsula, and before the conquistador and padre ended their new crusade, they had planted Spanish culture in more than half the Western hemi­ sphere. The story of the institutions of New Spain is not simply an account of Spanish germs planted in a new country, however; for, as was true in other colonial ventures, the Spanish colonial system was shaped by the conditions of the new environment as well as by the will of the mother country. The water laws and institutions that came to be in New Spain were a compound of Spanish institutions, the American environ­ ment, and the interaction between the two. While they resemble


T h e Spanish E lem ent in Texas W ater Law

to a great extent the system of Spain, sketched in Chapter III, they exhibit significant differences growing out of the Am erican experience. One of the most important facts to be noted is that the water laws of New Spain were developed in an arid land by people who looked upon water as a scarce and precious com­ modity. T h e other colonizers— English, French, and Dutch— took water into account, it is true, but not as the Spaniards did. T h ey were concerned about the uses of water and means of cheap water transportation, but they took its presence for granted. T h ey were trained to avoid the dangers of a surplus of water, either in places subject to floods or in swampy areas. Whereas the prime concern of the English was land, the Spanish were concerned about land and water. T h e institutions of the English and North Europeans made little provision for water usage, but the Spanish brought to the Americas detailed regula­ tions and well-established procedures relating to water. T h e expeditions sent to find suitable locations for settle­ ments, for example, examined not just the land but creeks and springs and “ extractions of water.” In 1756 one such expedition surveyed the basin of the T rin ity R iver in the province of Texas to find a site for a settlement of fifty families and a mis­ sion. T h e governor, who headed the party, examined various sources of water, but he was not satisfied until he found a creek with abundant water and a convenient place to withdraw water for irrigation. T h en he inquired of the Indians in the neighbor­ hood whether the creek flowed perennially. Receiving a positive answer, he had his surveyors examine the land thereabouts, draw up plans for the canals and other works necessary, and estimate the time, num ber of laborers, and money required to build the irrigation works.1 1 Gov. Jacinto de Barrios y Jauregui Expediente, January 26, 1762.— Nacogdoches Archives, State Library. Translation by R. B. Blake in Blake Collection, Vol. 62. Archives Collection, University of Texas Library. In 1954-55, R. B. Blake compiled and translated a collection of documents re­ lating to irrigation and riparian rights in Texas. These translations are from documents in the Bexar Archives, the Nacogdoches Archives, and the record books of the city of San Antonio, and are now in Vol. 62 of the Blake Collection of the University Archives.

Hispanic-Am erican W ater Laws and In stitu tio n s


A n idea of the thoroughness with which Spanish officials studied water matters can be obtained from the questions in­ cluded in an inspection made of the Rio Grande settlements in 1757. T h e Marquis de las Amarillas instructed the inspector to inquire about: 1. H ow many rivers there were and their course; information about their sources and mouths; what they were called and what peoples lived along their banks. 2. W hat acequias had been constructed to take water from the rivers or might be constructed to irrigate the lands; what places were made fruitful by the waters and to what villages they belonged. 3. If there were places which did not have the advantage of an acequia, whether there were springs or other sources of water which could be used to provide water for irrigation. 4. W hat use was made of the irrigated lands: for seedbeds, gardens, fruit-raising; how much land was used for each pur­ pose. 5. H ow much land was planted in grain; how large was the annual crop; whether the lands were cultivated by relying on rains or were irrigated.2 T h e data collected by explorers and inspectors about water sources and possible sites for irrigation were included in Spanish maps. On a 1792 map of Sierra Gorda, for example, the rivers suitable for irrigation (arroyo para riego) are marked (Fig. 8). T h e Spaniards’ awareness of water is reflected in the fact that Spanish grants usually speak of lands and water, not just of land as did the English grants.3 Moreover, the Spanish classified land 2Instrucci6n . . . para el reconocim10. de la costa del Seno Mexicano, . . . E. Marq8 de las Amarillas. Mexico. March 15, 1757.— Original in Mex­ ico, Archivo General de la Naci6n, Historia, Vol. 55. Transcript in Archives Collection, University of Texas Library. 3 See, for example, Recopilacion de Leyes de los Reynos de las Indias, Bk. 4, T itle 12, Law 1 (“O f the Sale, Composition, and Distribution of Lands, Lots, and Waters”); Bk. 4, T itle 12, Law 4 (". . . the viceroys and presidents shall in our name grant them [the settlers] lots, lands, and water, . . .”); Bk. 4, Title 12, Law 5 (“In distributing the lands, waters, watering places, and pastures among the settlers, . . .”). This work will be cited here­ inafter as Recopilacion.

Fig. 8. Map of Sierra Gorda, 1792. From a reproduction in L. F. Hill, Jose de Escandon. Original in Museo Nacional, Mexico.

H ispanic-Am erican W ater Laws and In stitutions


according to whether (1) it had no irrigation; (2) had water of the season, that is, rain enough to produce crops; (3) had water to irrigate at will. T h e value of the land was determined by the class into which it fell, the irrigable land being the most valu­ able.4 Spanish laws regarding land and water show clearly the Spaniards’ concern about water and the results of their long experience in a dry and thirsty land.

T h e Spanish Basis of Hispanic-American Institutions and Modifications in the New World T h e water laws and institutions of Spain at the time of the discovery and colonization of the New W orld have been described in Chapter III. Those laws, it w ill be recalled, were contained in the Partidas and later compilations of Spanish law and in the customs of the Spanish municipalities. T h e Span­ ish brought both their formal law and their customs to the N ew W orld, and though they developed a special body of laws for the colonies, which was collected and promulgated as the Reco­ pilacion de Leyes de los Reynos de las Indias in 1680, those laws did not constitute a complete code but were simply an enumera­ tion of exceptions to the general and common law of Spain. In cases where the Recopilacion was silent on a subject, it provided that the laws of Castile, including Las Siete Partidas, were to be followed.5 T h e law of New Spain consisted, in sum, of the laws of Castile— the cedulas, decretos, resoluciones, ordenamientos, reglamentos, autos acordados, and pragmdticas issued by the Crown and the Council of the Indies and eventually collected in 4 Hall, The Laws of Mexico, pp. 79-80. 8 Recopilacion, Bk. 2, Title 1, Laws 1 and 2. Many of the provisions of the Recopilacion relating to land are translated in White, New Recopila­ cion, and Hall, The Laws of Mexico. T he Texas Supreme Court has recog­ nized both of these works as “standard authorities,” See Sayles, Early Laws of Texas, Vol. I, p. 19. Sayles reproduces many of the provisions relating to land from White’s New Recopilacion and from Hall’s Laws of Mexico, at pp. 19-41.


T h e Spanish E lem ent in Texas W ater Law

the Recopilacion— and the regulations issued by the colonial government.6 T h e laws and institutions of N ew Spain thus grew around a Spanish core. T h e laws of the colonies naturally incorporated much of Spanish law, from which they were derived. T h e writers on water law in New Spain begin with Las Siete Partidas and cite the standard Spanish sources.7 T h e m unicipality or pueblo, which played such a large part in the water law of Spain, was transplanted to the N ew W orld and given extensive control over water. T here is, however, one important way in which the legal foundations of N ew Spain differed from those of the mother country, and this difference is reflected in water law. In Spain the rulers had established an absolute, paternalistic gov­ ernment in the fifteenth century only after a long struggle with the nobility, ancient customs and traditions, and the strongly ingrained freedom of the towns. In the N ew W orld the rulers had a free hand. T here were, at first, no nobles to thwart them, no customs to check them, no established institutions to deter them. T h e Catholic monarchs, who had just emerged victorious from a long struggle in Spain against the Moors and against the checks on their powers within their own kingdoms, were able to exercise a more direct personal control over their possessions in the N ew W orld than they did over Spain itself.8 T h e all-embracing powers of the sovereign in the N ew W orld are most strikingly, and significantly, reflected in the property concepts which prevailed. T h e Crown proclaimed all the lands and waters of the new possession to be the property of the king, a part of the royal patrimony. T h e colonies were looked upon as a royal monopoly, as fiefs dependent solely on the Crown, as a private domain, whose administration was an exclusive pre­ rogative of the king.9 Private property in N ew Spain could thus 6 Gustavus Schmidt, The Civil Law of Spain and Mexico, p. 95; John T . Vance and Helen L. Clagett, A Guide to the Law and Legal Literature of Mexico, pp. 18-22. 7 See, for example, Mariano Galvan Rivera, Ordenanzas de Tierras y Aguas. 8 C. H. Haring, The Spanish Empire in America, pp. 4-6, 34-35. 9 This claim rested on both the papal grant of 1493 an(l the right of con-

H ispanic-Am erican W ater Laws and In stitutions


be acquired only by transfer of property rights from the sover­ eign to the individual.10 Further, the grants were made condi­ tionally, the stipulation being that if the conditions imposed by the sovereign were not met, the grant would be forfeited. In Am erica there were no vested rights, such as the nobility and the Church had in Europe, standing in the way of the king. These legal facts meant that there was a radical difference in the nature of private property in N ew Spain and that in Europe, for in Europe private property had originated often in long occupation or conquest, and less frequently by immediate royal grant. Consequently, as M anuel de la Pena, a Mexican juris­ consult, has pointed out, “while European private property originated from individual property rights and brought with it free possession, use and exploitation, with no limitations but those imposed by public welfare, property in N ew Spain was granted upon conditions which lim ited its free use and exploita­ tion and rendered it liable to cancellation.” 11 T h e fact that all land and waters belonged to the Crown and could be acquired only by grant from the sovereign and that such grants were con­ ditional on the grantee’s performing certain actions did much to shape the development of the water laws and institutions of N ew Spain. A nd that development was further influenced by the nature of the land and the people the Spaniards encountered in America.

quest.— See J. H. Retinger, Tierra Mexicana, pp. 30-42; Hall, The Laws of Mexico, p. 2. 10 While in theory grants could originate only in the sovereign and many grants in colonial Hispanic-America were sent to Spain for confirmation, various officials in America, such as the viceroys and presidents of the audiencias, subdelegates authorized by a royal cedula of 1754, and the intendants, created by an ordinance of 1786, were given power to issue titles in the name of the Crown.— See Matthew G. Reynolds, Spanish and Mexican Land Laws, pp. 26-30; Hall, The Laws of Mexico> pp. 10-16. Both works contain translations of the Royal Cedula of i 754> as does White’s New Recopilacion. 11 Quoted in Retinger, Tierra Mexicana, p. 33.


T h e Spanish E lem ent in Texas W ater Law New Spain: The Land and the People

T h e term “ N ew Spain” was not applied to all Spanish possessions in the N ew W orld. T h e approximate bound­ aries were the G u lf of M exico and the Caribbean on the east and southeast, the Pacific Ocean on the west, the thirty-eighth parallel on the north, and the tenth parallel on the south (Fig. 9). N ew Spain, which was about five times as large as the mother country in area, resembled O ld Spain in climate, and this simi­ larity influenced the choice of its name. Alexander von H um ­ boldt noted in his description of N ew Spain that, “ in the midst of so many advantages bestowed by nature on the kingdom of N ew Spain, it suffers, in general, like O ld Spain, from the want of water and navigable rivers.” And, he adds, “ the interior of N ew Spain, especially a great part of the high table-land of Anahuac, is destitute of vegetation; its arid aspect brings to mind in some places the plains of the two Castilles.” 12 T h e Spaniards found this area which they named N ew Spain to be a land of sharply contrasting highlands and lowlands, whose major climatic zones were determined largely by altitude. T h e annual rainfall was uneven and irregular. More than half the country, the area north of the twenty-second parallel, re­ ceived annual rainfall of less than 20 inches and in many parts less than 10. In the great Mesa del Norte, agriculture was prac­ tically impossible without irrigation. In the rest of the country, except the tropical belt, the irregular rainfall made irrigation a near-necessity.13 From the earliest times agriculturists in M exico have been irrigators. T h e aboriginal population of central M exico terraced and irrigated their lands, on which they produced corn, beans, potatoes, squash, cotton, and other crops.14 T h e native system of 12 Political Essay on the Kingdom of New Spain, Vol. I, pp. 10-13, 71, 74. 13 According to a recent study, less than 7 per cent of Mexico’s territory can produce food crops regularly without irrigation. A little less than onethird of the land is considered semiarid; slightly more than half (52.1 per cent) is considered arid.— Howard F. Cline, The United States and Mexico, pp. 19-20. 14 George McCutchen McBride, The Land Systems of Mexico, pp. 10-14; Eyler N. Simpson, The Ejido: Mexico's Way Out, pp. 139-143.

Hispanic-Am erican W ater Laws and In stitu tio n s


irrigation was so well developed that a Spanish law of 1536 pro­ vided that the Indians’ method of dividing and apportioning water for irrigation should be retained and that the Indian of­ ficials who supervised water distribution were to continue to do so.15 Am ong the natives of central M exico there existed a welldeveloped and stable land system. Some of the land belonged to the rulers and nobles; the rest to the temples and native tribes. W ithin the subdivisions of the tribes, each group had its own lands, which were divided into plots held by heads of fami­ lies. These plots were inalienable. T h e Indians had not arrived at the concept of individual ownership of the land but thought in terms of a right to use or possess it. T heirs was a system of communal tenure; they were moving toward the idea of owner­ ship by the community at the time of the Conquest.16 T h e Spanish sovereigns decreed that the Indians were to be left secure in their holdings and that their land system was to be preserved. Almost every law in the Recopilacion dealing with land calls on the officials to respect the rights of the Indians.17 But, inevitably, the Indians’ lands were encroached upon by the Spanish. Nevertheless, the type of land tenure existing be­ fore the Conquest survived and exerted an influence on the ha­ cienda of N ew Spain and the village of later M exico.18 Although there were marked differences between the Indian and Spanish systems of landholding— notably the existence of private ownership of property among the Spanish— the two were enough alike to perm it fusion. “A Spaniard transplanted into M exico could understand the workings of the native sys­ tem with modification,” says J. H. Retinger.19 T h e communal 15 Recopilacion, Bk. 4, Title 17, Law 11. If anyone violated the law by taking waters on his own authority, he was to be cut off from the supply un­ til all below him had watered their land. 16 Helen Phipps, Some Aspects of the Agrarian Question in Mexico, A Historical Study (University of Texas Bulletin No. 2515), pp. 11-20; Retin­ ger, Tierra Mexicana, pp. 10-19. 17 See, for example, Recopilacidn, Bk. 4, T itle 17, Laws 5, 6, 7, 8, 14. 18 Frank Tannenbaum, The Mexican Agrarian Revolution, pp. 3-4. 19 Tierra Mexicana, p. 25.


T h e Spanish E lem ent in Texas W ater Law

land tenure of the Indians was not entirely foreign to the Span­ ish, whose system included community property-holdings in the towns.20 In N ew Spain community property existed to a greater extent than it did in the mother country; its origins lay both in the Indian villages, protected by the Crown, and in the m unici­ palities established by the Spanish in their new dominion.21 T h e Am erican environment— both physical and institutional — thus contributed to the development of the water laws and institutions of N ew Spain. Its aridity forced the Spanish to con­ tinue the practice of irrigation; the methods of irrigation which developed combined the ancient Indian ways with those the Spanish had learned from the Moors and carried to the N ew W orld. Similarly, the landholding system of the Indians— the concept of community control— was combined with, and sup­ ported by, Spanish law. T h e water laws and institutions of N ew Spain were rooted in both native Am erican and Spanish cus­ toms and laws; from both traditions came provision for irriga­ tion and the primacy of community ownership and control.

Hispanic-American Water Laws and Institutions: Principles A paternalistic, absolute monarchy, a tabula rasa on which to execute its will, an arid land in which water held the keys of existence, people accustomed to a society in which the community played a major role— these were the elements that combined to form the water institutions of N ew Spain. T h e central principle of the water laws of N ew Spain was that the waters were a part of the royal patrimony. Lasso de la Vega stated in 1761 that the fundamental guiding principle of the regulations concerning water was that “ to the Prince and to 20 Retinger has pointed out that “ the great increase in the number of common holdings in Spain coincided with the conquest and colonisation of Mexico.” T o encourage settlement of the lands left devastated by the cam­ paigns against the Moors, the sovereigns followed a policy of making liberal land grants to communities.— Ibid., pp. 25-27. 21 Phipps, Some Aspects of the Agrarian Question in Mexico, pp. 21-28.

H ispanic-Am erican W ater Laws and Institu tio n s


no other, appertains the right of distribution of water; quasi­ possessions must be considered null and void, in which is not discovered the Royal patrimony.” 22 Since all water rights de­ rived from the king, the king was free to designate the uses to which waters were to be put. In general, the Crown disposed of water in three ways: (1) dedication to the public and common use; (2) grants to individuals; (3) grants to municipalities. T h e king ordained that “ all pastures, mountains, and waters in the provinces of the Indies, be common to the inhabitants thereof, present and to come, and that they may freely enjoy the use of them.” 23 T h e principle that the waters of public rivers and watercourses were to be held for public and common use pre­ vailed in N ew Spain, as it did in the metropolis. N o person could appropriate to his own use that which was public and common to all, except what was needed for domestic use.24 In the new country, as in the old, a distinction was made between “rivers” and “ torrents” and between “ p ublic” and “ private” rivers. Public rivers were those in which all had the right to fish. Private rivers were those over which an individual could 22 The Spanish text in part is: “Que solo a el principe, y no & otro alguno, le compete el derecho de repartir las aguas; se deben dar por nulas y de ningun valor, las quasi-possessiones en las cuales se descubriere la regalia, bien, que sea por via de medida o por otro camino, si en ellas no ha entrado la distribucion de la real mano.”— Lasso de la Vega, “ Reglamento' General de las Medidas de las Aguas,” in Mariano Galvan Rivera, Ordenanzas de Tierras y Aguas, pp. 260-261. The “Reglamento” was drawn up for the use of royal officials and surveyors and dedicated to the Audiencia of Mexico. For many years it was the only printed guide in regard to waters. Galvan Rivera says he regards it as having been approved by competent authorities, since the viceroy licensed its publication.— Ibid., p. 259, The “Reglamento” is given in ibid., pp. 260-279. A translation of it is in Leonidas Hamilton (ed.), Hamilton's Mexican Law, pp. 110-124, but this translation leaves much to be desired. Hamilton’s work is cited hereinafter as Hamilton, M ex­ ican Law. 23 Recopilacion, Bk. 4, T itle 17, Law 5; White, New Recopilacion, Vol. II, p. 56. This law was issued in 1541 but stated that it reaffirmed an earlier act of the king’s. From the context it appears that the waters referred to in the law were those used in pasturing livestock. 24 Recopilacion, Bk. 4, Title 17, Law 5; White, New Recopilacion, Vol. II, p. 56.


T h e Spanish E lem ent in Texas W ater Law

acquire right by a pact or agreement. Such private rivers dif­ fered in no way from other private places.25 Grants of lands and waters to individuals were made to the conquistadors and pacificadores as remuneration for their serv­ ices, to individual settlers to encourage colonization, and to In­ dian chieftains to hold their loyalty.26 In the earliest law re­ lating to lands and waters (a measure of 1521) the king pro­ vided for the “ sale, composition, and distribution of lands, lots, and waters” to settlers to “ promote the zeal of our subjects in the discovery and settlement of the Indies” and to assure that they lived “ in ease and comfort.” T h e distributions were to be made by the governor or some other authorized official. A fter the settlers had lived on the lands and cultivated them four years, they could sell them or dispose of them as they willed “ as their own property.” 27 A law of 1532 provided that in “ dis­ tributing the lands, waters, watering places, and pastures among the settlers, the viceroys or governor thereto authorized by our­ selves shall make such distribution by the advice of the cabildo [council] of the cities or villages.” 28 Lasso de la Vega, citing the doctrine of Avendano’s Thesaurus Indicus, asserts that waters which originate on land are conceded jointly with the land as a part or fruit of the land 29 Thus, some of the waters of N ew 25 Galvdn Rivera, Ordenanzas de Tierras y Aguas, p. 263; Hamilton, Mexican Law, p. 112. 26 Phipps, Some Aspects of the Agrarian Question in Mexico, pp. 22-23. 27 Recopilacion, Bk. 4, Title 12, Law 1; White, New Recopilacion, Vol. II, pp. 48-49. The law provided for the grant of Indians, as well as lands, to settlers according to the merits and rank of the settlers. It also defined the units of land measure. 28 Recopilacion, Bk. 4, Title 12, Law 5; see also Bk. 4, Title 12, Law 8; White, New Recopilacion, Vol. II, p. 40. 29 Galvan Rivera, Ordenanzas de Tierras y Aguas, p. 263; Hamilton, Mexican Law, p. 112. The Spanish text in part is: “Pero si en la concession de las tierras, se conceded juntamente las aguas sus originates, por conside­ ra te partes o fructos de las dichas tierras mercenadas, es doctrina del padre Avendano nuestro Regmcola en su Thesauro Indico” T he cited portion of Avendano reads: “Y d la verdad las fuentes y los manantiales son de aquel de quien son las tierras, en las cuales tienen su origen y son como partes y como frutos, y asi es que se conceden igualmente con las tierras.”

H ispanic-Am erican W ater Laws and In stitu tio n s


Spain passed from the royal patrimony to those who had re­ ceived grants from the Crown. Lands and waters passed from the Crown to communal own­ ership as well as to individuals. Grants were made to both In­ dian villages and Spanish municipalities. T h e quantities of land belonging to the towns, the uses to be made of it, and how it was to be laid out were all m inutely regulated by laws and de­ crees.30 T h e Indians were to be ‘le ft in possession of the full amount of lands belonging to them, either singly or in com­ munities, together with their rivers and waters.” 31 T h e Spanish established municipalities in the N ew W orld from the earliest days of the Conquest. These towns were mod­ eled on those of Castile. But whereas there was diversity in the legal foundations of the Castilian towns, those of N ew Spain were all based upon a common law, which provided detailed instructions for their establishment.32 Towns could be estab­ lished either by the government or by contractors. In either case provision was made for setting aside lands for the liberties of the towns (exidos), for pastures (dehesas), for the council (propios), and for cultivation. T h e cultivated land was to be divided into tracts equal in number to the town lots, and these were to be distributed among the settlers by the drawing of lots. If there was land suitable for irrigation, the law provided that it was to be distributed by lot to the first settlers, with a portion left vacant to be granted to new settlers.33 A tract of irrigable land distributed by lot came to be known as a suerte, the word meaning “lot,” “luck,” or “chance.” T h e lands held by the m unicipality were of two classes: m u­ nicipal lands (propios or bienes concejiles) and communal lands (bienes communales or bienes de aprovechamiento comun). T h e proceeds from the propios, which were either cultivated in 30 Francisco F. de la Maza, Codigo de Colonization y Terrenos Baldios, pp. 11-14, 25-28; Recopilacion, Bk. 4, T itle 3, Law 8. 31 Recopilacion, Bk. 4, T id e 12, Law 17. 32 Recopilacion, Bk. 4, Title 5, Law 6; Bk. 4, Title 7, Law 2. 33 Recopilacion, Bk. 4, Title 7, Law 14.


T h e Spanish E lem ent in Texas W ater Law

common or leased, went to the support of the m unicipality. T h e communal lands included woodland, pasture, the m eeting place and threshing ground, and public fountains. A ll the in­ habitants of the town could make use of these common prop­ erties.34 T h e m unicipality acquired with its lands the waters on them. These m unicipal or pueblo water rights were superior to those of riparian proprietors who subsequently acquired lands.35 In addition to its jurisdiction over the waters belonging to the municipality, the ayuntamiento, or town council, had much to do with the administration of irrigation and the settlement of disputes regarding water rights. T h e procurador, or mayordomo, had among his functions the overseeing of water supplies for drinking and for irrigation.36 T h e central concept of all Hispanic-American water law was that water belonged to the sovereign. A second basic concept was that the viceroy and audiencia were responsible for ad­ ministering the waters, along with other public things, in the public interest.37 It is important in considering the Spanish system to bear in mind that its primary concern was with the common use of waters, with their administration in such a fash­ ion that the community interests were served and the fertility of the land preserved, rather than with prior and exclusive rights. T o look at the Spanish system through the lens of in­ dividualistic property concepts is to miss its raison d'etre: Span­ ish laws and institutions were products of a society that stressed 34 Galvan Rivera, Ordenanzas de Tierras y Aguas, pp. 19-21; Phipps, Some Aspects of the Agrarian Question in Mexico, pp. 21-22. The sovereign granted these lands for the use of the municipality, but the fee remained in his hands.— Hall, The Laws of Mexico, p. 53. 35 Wiel, Water Rights in the Western States, Vol. I, § 68; Kinney, Irriga­ tion and Water Rights, Vol. I, pp. 994-998. 36 Mattie Alice Austin, “The Municipal Government of San Fernando de Bexar, 1730-1800,” Southwestern Historical Quarterly, Vol. VIII (April, P* 320 . 37 A law of 1532 provided that the viceroys and audiencias were to see to the good governing of the pastures and waters and that they were to pro­ vide what was profitable to the population and what served to maintain the land. They were to report to the king the measures adopted.— Recopilacion, Bk. 4, T itle 17, Law 9.

Hispanic-Am erican W ater Laws and In stitu tio n s


the place of the Crown, the community, the Church. T h ey were likewise products of a people experienced in the needs of an arid and semiarid land. Both influences— the emphasis on the group and the necessities of an arid environment— shaped Spanish-American water institutions. T h e Spanish-American system was in some ways more rigid than the individualistic method of acquiring land and water which prevailed in AngloAmerica. It gave to colonial officials and the community au­ thorities a considerable voice in the disposition of waters. It was, in fact, an administered system. But it was in a sense more open than the Anglo-American system, for it did not freeze prior rights into absolute proprietary ones. T h e overriding in­ terests of the community might be invoked if new needs arose, and existing arrangements could be modified.38 H ow these two principles— water as a part of the royal patri­ mony and water administered for the common welfare— were operative in Hispanic-American water law can be seen in the laws relating to irrigation. Lasso de la Vega in his “ Reglam ento” states that “no one can take public waters upon his pri­ vate grounds for irrigation without Royal permission.” Espe­ cially was this true in New Spain, where “ His Majesty has amply empowered those most enlightened and excellent gentlemen, the Viceroys and Presidents of the Royal Audiencia of N ew Spain, . . . to make grants of lands and water as appertaining to his Royal Crown, and to have exclusive and special jurisdiction over them.” 39 T his statement makes clear the extent of royal 38 For a discussion of the significance of this feature of the Spanish system, see Vincent Ostrom, Water and Politics: A Study of Water Policies and Ad­ ministration in the Development of Los Angeles■ , pp. 31-32. 39 Galvdn Rivera, Ordenanzas de Tierras y Aguas, p. 262; Hamilton, Mexican Law, p. 111. The Spanish text reads: “Qualquiera sin el permisso del principe, no pueda conducir las aguas publicas a sus fundos, para su irrigacion mayormente en los peculiar de esta Nueva-Espana, donde se have constar el que S.M. ha concedido amplissima facultad a los clarisimos y excelentissimos senores vireyes y presidentes de la audiencia real de esta Nueva-Espana para que en toda conformidad de lo expressado puedan hacer las mercedes de tierras y aguas, como bienes pertenecientes a su real corona y de que oy ay particular privativo juzgado.”


T h e Spanish E lem ent in Texas W ater Law

power over the public waters. N o one could use water for irri­ gation without permission from the officials of the Crown; the Crown was free to make grants as it might please. U nder Span­ ish and, later, Mexican rule, grants of water for irrigation were made to nonriparian proprietors as well as to riparian owners.40 T h e Crown did not stop with making grants of waters for ir­ rigation, but acted to encourage and direct its development. For example, the Spaniards classified the lands as to water use. As early as 1523* a law required that irrigable land be distin­ guished from nonirrigable.41 In 1612 the viceroys were ordered “ to inquire concerning lands susceptible of irrigation and to order the cattle to be withdrawn from the same.” T h e viceroys were to have wheat planted on the irrigable land unless the pro­ prietors had a legal title to raise cattle.42 T h e laws which regu­ lated the distribution of land in the municipalities, as noted above, made special provision for irrigable land. Although private irrigation was carried on in N ew Spain and grants of water were made to individuals for that purpose, pub­ lic or community irrigation was of much greater importance. T h e instrument provided for public irrigation was the com­ m unity acequia, or ditch. T h is was, according to W ells A. H utchins’ definition, “ an irrigation organization composed of the owners of land bordering on or irrigable by a ditch con­ structed and maintained by such landowners.” 43 T h e origins of the community acequia can be traced to both Spanish— specifi­ cally, Moorish— and Indian sources; it was a result of the merg­ ing of Indian and Spanish methods of community direction of irrigation. T h e legal foundations of the community acequia were the m unicipal irrigation laws and customs of sixteenth-century 40 Kinney, Irrigation and Water Rights, Vol. I, pp. 1002-1003. 41Recopilacion, Bk. 4, Title 17, Law 14; White, New Recopilacion, Vol.

II, p. 4742 Recopilacion, Bk. 4, Title 12, Law 13; White, New Recopilacion, Vol. II, p. 52. 43 Hutchins, “The Community Acequia: Its Origin and Development,” Southwestern Historical Quarterly, Vol. X X XI, p. 261.

H ispanic-Am erican W ater Laws and Institu tio n s


Spain, the provisions of the Recopilacion relating to water and irrigation,44 and regulations made by Spanish colonial officials. T h e regulations of the colonial authorities were often detailed and specific. T h e Plan of Pictic, for example, which dealt with the establishment of colonies in the interior provinces of the West, contained three sections of instructions on laying out and operating a community irrigation system. W ater was to be dis­ tributed in rotation to all users on the basis of the needs of their crops. T h e main canal was to be repaired and cleaned at public expense. T h e ayuntamiento was to appoint officers to administer the system and to pass necessary ordinances.45 T h e community acequias were public organizations. T h e acequia might belong to the whole community or to a group within the town who had contributed to its construction. In either case, the town officials had supervisory functions46 T hus far we have considered the general principles underly­ ing the development of the Spanish water laws and institutions in N ew Spain. These laws and institutions had to be of service in a semiarid land; they had to be acceptable to the colonial system with a group philosophy and machinery— the encomienda, mission and villa; and they had to conform to the concept of royal ownership and control of the land and water. Perme­ ating the entire structure of water law was the paternalistic ab­ 44 See Recopilacidn, Bk. 4, T id e 17, Laws 5, 9, 11; Bk. 4, Title 12, Laws 5, 13; Bk. 4, Title 7, Law 14. 45 Hutchins, “ The Community Acequia,” Southwestern Historical Quar­ terly, Vol. XXXI, pp. 263-266; Kinney, Irrigation and Water Rights, Vol. I,

P- 995*

46 Hutchins states that “ the very essence of their [the community acequias'] being was that the town should construct and maintain them for the benefit of all the inhabitants of the town. So far as the individual was concerned, his right to the use of the ditch and his liability for its upkeep were invol­ untary on his part.”— “ The Community Acequia,” Southwestern Historical Quarterly, Vol. X XXI, p. 271. This statement seems to ignore the fact that many acequias belonged not to the whole community but to the citizens who had undertaken their construction. See, for example, the account of the Upper Labor ditch in San Antonio below, pages 117-118. For an account of the operation of an acequia in modern New Mexico, see Barker, Irriga­ tion in Mesilla Valley, New Mexico, pp. 22-24.


T h e Spanish E lem ent in Texas W ater Law

solutism of the state and the communal nature of the pueblo or municipality. But principles remain abstractions until tried out in specific cases. Since this study is concerned with Texas, it is appropriate that we see how the principles developed by the Spaniards were applied in that province.

H ispanic-A m erican W a te r Law s and Institutions: T h e T e x a s E xp erien ce Spanish Texas. T h e importance of water in the settlement of Texas was recognized by the Spaniards from the beginning. T h e exploring parties of the conquistadors and padres noted the location of rivers, creeks, lakes, and springs. A report of the early seventeenth century regarding the founding of settlements in Texas calls for investigations of “ the sites most suitable for the building and establishment of colonies and presidios with reference to the circumstances of potable water, groves of trees, and proxim ity to tim ber.” 47 But the Spanish explorers and missionaries looked not simply for sources of water. T o them, irrigation was the safest and most usual way of agriculture. T h e Spanish view that irrigation was desirable, even in humid country, is shown in a description of Texas in 1744. T h e writer notes that “ the presidio of Bahia del Espiritu Santo is located on the banks of the Guadalupe River. . . . A l­ though the said river has much water, for a distance of many leagues, no place has been found for drawing out water with which to irrigate the crops, for which reasons, since the latter are seasonal, they are uncertain.” O f the presidio of Los Adaes he observes, “ T h e land is fertile although hilly, and only at in­ tervals are there some plains where fields of grain are planted. 47 Dn. Juan de Olivan Rebolledo. Comments on instructions given Don Domingo Teran by the Count of Galve; suggestions for the founding of settlements and missions at the “Spring of San Antonio/’ the Bay of Espi­ ritu Santo, and among the Asinais and Cadodaches. i 7 i 8(?).— Bexar Archives. Translations, Vol. II, p. 93. Archives Collection, University of Texas Library.

H ispanic-Am erican W ater Laws and In stitu tio n s


T h e crops are seasonal since there is no source for irrigation, because there are only a few springs which suffice to supply the presidial soldiers and the settlers.” 48 T h e Spanish explorers looked for good irrigation sites, for the essential toma de agua or saca de agua, a place where water could be withdrawn from a river or creek and led through ditches into the fields. T h ey examined the nature of the soil to see whether it was too sandy to permit the construction of ditches or too porous to convey the water efficiently. T h ey made inquiries of the Indians of the area to learn whether the water was perennial or flowed only following rains. T h ey estimated the amount of time and labor necessary to construct the canals and other works.49 Irrigation, it is clear, was no exotic flower in the wilderness of Spanish Texas; it was the accepted, standard mode of existence. It was as much a part of the life of the mission and villa as was the church and the presidio. A n d some have concluded that the Spaniards succeeded in their irrigation enterprises even though they failed either to convert the Indians to Christianity or to hold the land permanently for Spain.50 Irrigation in Spanish Texas. Irrigation was prac­ ticed in the area which is now Texas long before the Spaniards appeared on the Rio Grande in their trek across the Mesa del Norte.51 In the Trans-Pecos region the lines of irrigation canals 48 Report by Thomas Phelipe de Winthuysen of condition of presidios and missions in Texas and recommendations for removal of the capital from Los Adaes to San Antonio. August 19, 1744.— Bexar Archives. Translations, Vol. XV, pp. 59-62. Archives Collection, University of Texas Library. 49 Investigation of possibilities of withdrawing water from San Antonio River for irrigating fields at presidio of La Bahia del Espiritu Santo, 1790, 1791.— Bexar Archives. Blake Collection, Vol. 62. 50Arneson, “Early Irrigation in Texas,” Southwestern Historical Quar­ terly, Vol. XXV, p. 130. 51 On irrigation in early Texas, see Hutchins, “The Community Acequia,” Southwestern Historical Quarterly, Vol. XXXI, pp. 261-284; Arneson, “Early Irrigation in Texas,” ibid., Vol. XXV, pp. 121-130; William Fergu­ son Hutson, Irrigation Systems in Texas (U.S. Geological Survey WaterSupply and Irrigation Papers, No. 13); T . U. Taylor, Irrigation Systems of Texas (U.S. Geological Survey Water Supply and Irrigation Papers, No. 71).


T h e Spanish E lem ent in Texas W ater Law

constructed by some unknown ancient people— perhaps the Yum a Indians— can still be traced. W hen Coronado and his party pushed northward along the upper R io Grande in 1540, they found Indians practicing irrigation. T h e first irrigation works constructed by Europeans in what is now Texas were those built on the R io Grande in the vicinity of present El Paso as early as the latter half of the seventeenth century by Indians under the direction of Spanish missionaries. A fter the Indian rebellion in N ew M exico in 1680, Pueblo In­ dians moved to the site of Ysleta, Texas, and constructed irriga­ tion systems which watered some three thousand acres. Pedro de Rivera, inspecting the northern frontier of N ew Spain, visited the valley in 1726 and described the irrigated lands which pro­ duced wheat, corn, beans, and all kinds of vegetables, as well as vineyards of superior quality. “ T h e natural fertility of the land is improved,” he wrote, “ by the num ber of irrigation ditches which carry water from the said R io del Norte, making the farms independent of droughts.” 52 A description of El Paso in 1760 recorded by Pedro Tam aron, bishop of Durango, includes an account of the irrigation system. A large ditch took about half the water of the river, and smaller canals conveyed it from the main ditch to the fields. T h e waters were used to pro­ duce vineyards, wheat, corn, and other grains, and apple, pear, peach, and fig trees. A dam across the river, which raised the level of the water to supply the main ditch, was washed out each year by floods that ordinarily lasted from May until the end of July. T h e settlers rebuilt the dam by m aking large cylin­ drical baskets out of w illow wands and slender twigs. T h e bas­ kets were filled with stones and gravel and rolled into position after the flood subsided.53 As the Spaniards pushed northward and eastward into Texas, they sought locations for presidios and missions where irriga­ tion could be practiced. Even in East Texas, where rainfall was sufficient for agriculture, the availability of water for irrigation 52 C. E. Castaneda, Our Catholic Heritage in Texas, 1519—1936, Vol. I, p. 276. 53 Ibid., Vol. Ill, pp. 233-234.

Hispanic-Am erican W ater Laws and Institu tio n s


governed the selection of sites.54 Most of the irrigation works of Spanish Texas were laid out by the missionaries, who included among their skills a knowledge of surveying.55 Irrigation was either practiced or attempted at Mission Rosario, near present Goliad; Mission La Bahia del Espiritu Santo, first built on the Guadalupe and later on the San Antonio R iver 56; the San Saba mission, near Menard; Mission Candelaria and San Lorenzo, on the Nueces; Mission San Xavier on the San Gabriel; and Mis­ sion Nuestra Senora del Refugio, near present Refugio 57 T h e problems encountered in constructing irrigation works in a wilderness, using semi-wild Indians as laborers, are re­ vealed in Father Francisco Mariano’s instructions for building the canal for the San X avier missions on the San G abriel in 1750. Mariano had chosen the location for the canal himself, utilizing an arroyo to convey the water part of the way. He called on each mission to provide half a muleload of salt, six bulls for slaughter, two handfuls of tobacco, and whatever else it could for each week the work continued. He agreed to supply two hundred pounds of hominy a day. T h e instructed Indians were to teach the untrained ones how to go about the work under the supervision of a padre who was to assign the tasks and take care of the tools and supplies. T h e garrison was to assist the venture by providing one soldier to care for the tools, one to look after the oxen and haul stone for the dam, and enough others to see that the Indians went to work at the proper time and kept at the tasks. T h e horses of the Indians were to be 54Arneson, “Early Irrigation in Texas,” Southwestern Historical Quar­ terly, Vol. XXV, p. 122. 55 In 1749 there were two Spaniards in Texas, Father Fray Francisco Mariano de los Dolores y Viana, and another priest, Pedro Ysasmendi, who “understood surveying both theoretically and practically.”— Escrito presentado al Gov. Dn. Pedro del Varrio sobre Sn. Xavier, quoted in Herbert Eugene Bolton, Texas in the Middle Eighteenth Century, p. 202. 56 The Mission of La Bahia del Espiritu Santo was moved to the San An­ tonio River site because it offered better irrigation facilities than did the Guadalupe.— See Castaneda, Our Catholic Heritage, Vol. Ill, pp. 177-180. 57Arneson, “Early Irrigation in Texas,” Southwestern Historical Quar­ terly, Vol. XXV, p. 123; Hobart Huson, Refugio: A Comprehensive His­ tory of Refugio County from Aboriginal Times to 1955, Vol. I, pp. 92-93.


T h e Spanish E lem ent in Texas W ater Law

guarded so the Indians could not escape, but Mariano warned that the soldiers should not mount the horses, for this would anger the Indians.58 T h e padres of the missions were not the only ones who at­ tempted to irrigate the lands of what was to become modern Texas. A lon g the lower R io Grande in 1749 began what C. E. Castaneda has called “ the first great land rush within the pres­ ent limits of the U nited States.” 59 T h is push of settlers into the province of N uevo Santander was the result of the activities of Jose de Escandon, who had already established his reputation as a colonizer by his success in Sierra Gorda. Escandon went about the settlement of the vast unoccupied area from Tam pico in the south to the Nueces and lower San Antonio rivers in the north only after careful preparations. In 1747 a general reconnaissance of the entire area was made by seven separate parties that con­ verged on the mouth of the R io Grande, about halfway between the northern and southern limits of the province. T h e explor­ ing expeditions made careful observations of the nature of the land, the Indians encountered, and the location of rivers, bays, salines, and irrigation sites. Captain Joaqum Orobio y Basterra, of the presidio of La Bahia, commanded the party that explored the area from the Guadalupe to the R io Grande. He found a place on the San Antonio which he named Santa Dorotea, where he thought irrigation would be practicable (see Fig. 8). On his march from the San Antonio to the Nueces he crossed six arroyos, which he noted contained abundant waters. On the march from the Nueces to the R io Grande the men and beasts of the expedition suffered from a lack of fresh water and were forced to depend on the waters which seeped into shallow holes dug in the sands the last few days of their journey.60 58 Bolton, Texas in the Middle Eighteenth Century, pp. 234-237. Father Mariano had been president of the San Antonio missions for twenty years, during which time most of the irrigation works there were constructed.— Arneson, “Early Irrigation in Texas,” Southwestern Historical Quarterly, Vol. XXV, p. 125. 59 Our Catholic Heritage, Vol. Ill, p. 156. 60 Jos£ de Escand6n to the viceroy, Queretaro. October 27, 1747.— Archivo General de la Nation. Provincias Internas, Vol. 179, Pt. 1, pp. 241-247. Uni-

Hispanic-Am erican W ater Laws and Institu tio n s


Having explored the country, Escandon drew up plans to establish fourteen settlements, three of these within the bound­ aries of present Texas. These settlements were to be civil rather than m ilitary ones, and Escandon proposed to attract settlers by grants of farm and pasture lands and a money bonus. It does not fall within the limits of this study to discuss the colonization of N uevo Santander. Suffice it to say that through Escandon’s efforts a chain of settlements sprang up along the Rio Grande, including Camargo, Reynosa, Dolores, Revilla, Mier, and L a­ redo.61 Only two of the permanent settlements— Laredo and Dolores— were north of the Rio Grande on what is today Texas territory, but the people from the villages south of the river soon began to cross over to use the lands on the north for farms and pastures (Fig. 8). Although the colonists in these new settlements expended considerable time and energy in the construction of irrigation works, they had little success. T h e reasons for their failure are given in the accounts of Spanish officials who inspected the set­ tlements in 1757 and again in 1767. In 1757, at Laredo, T ienda de Cuervo was told that there was no hope of constructing an irrigation canal because the elevation of the river channel made it impossible to raise the water to the fields.62 T h e inspectors of 1767 were told at Mier, Reynosa, Laredo, Guerrero, and Ca­ margo that all the lands were without irrigation except such as was possible following storms or rainy spells. T h e report on con­ ditions at Camargo is typical: The lands are all of one and the same quality, without irrigation or especial distinction. And at this place the people have endeavored versity of Texas Archives Transcripts. See also Castaneda, Our Catholic Heritage, Vol. Ill, pp. 142-145. 61 On Escand6n and the beginnings of settlement in the lower Rio Grande Valley, see Lawrence Francis Hill, Jose de Escandon and the Founding of Nuevo Santander: A Study in Spanish Colonization. 62 Tienda de Cuervo’s Inspection of Nuevo Santander, 1757.— Mexico. Archivo General de la Nacion. Historia, Vol. 55. University of Texas Archives Transcript. See also Herbert Eugene Bolton (trans, and ed.), “ Tienda de Cuervo’s Ynspeccion of Laredo, 1757,” Southwestern Historica7 Quarterly, Vol. VI (January, 1903), p. 198.


T h e Spanish E lem ent in Texas W ater Law

to take the water out of the River San Juan, upon which work they have displayed great diligence, have done much work and have ex­ pended thereon as much as their means would justify, and, although the water ran into a ditch, in a short distance all that ran out of the River sank into the ground, and they saw the impossibility of its subsisting or of their taking it out at any other point, and its bene­ fits are wanting in all the Ranches that were reviewed.63 In sum, the bed of the river was at such depth that canals could not be successfully constructed to carry water to the fields, peri­ odic floods washed out the dams and weirs and other irrigation works, and the lands were so arid that they absorbed all the water before it could reach the crops. Despite the failure of the irrigation ventures, the population of the settlements grew slowly, since the colonists found the country suitable for stockraising.64 T h e most successful irrigation systems in Spanish Texas were those built in and near present San Antonio. T h e abundant sup­ ply of good water in the river, named San Antonio de Padua by Dom ingo T eran de los Rios in 1691, was one of the principal factors in the choice of this site for the establishment of a mis­ sion, presidio, and villa in the early eighteenth century. In 1718 an expedition headed by M artin de Alarcon and Father Antonio de San Buenaventura Olivares established the villa of Bejar on the San Antonio R iver and the mission of San Antonio de Valero near by. T h e chronicler of the expedition noted about threequarters of a league from the San Antonio R iver a spring (the San Pedro Spring) and that “ on the site where the V illa de Bejar was located there is opportunity for opening one irriga­ tion ditch with ease and no more.” 65 T his estimate of the irri­ gation possibilities proved to be unduly pessimistic. A n observer in 1744 wrote that the San Antonio R iver has so much water that not only does it supply irrigation for the farms of the said presidio, the villa, and the five missions but it is 63 Acta de Visita General, 1767, Camargo.— Transcript and translation, General Land Office, Austin. P. 195. 64 See Chapter V for an account of the distribution of land to the settlers. 65 Castaneda, Our Catholic Heritage, Vol. II, p. 92.

io. Map of Ditches and Artesian Wells at San Antonio, 1898. Reproduced from W. F. Hutson, Irrigation Systems in Texas.

Fig. 11. Mission Ditches below San Antonio, 1898. Reproduced from W. F. Hutson, Irrigation Systems in Texas.

H ispanic-Am erican W ater Laws and In stitu tio n s


also sufficient to supply a much larger population. Furthermore, the water is very delicate and healthful and the land is exceedingly fer­ tile and has been known to produce all kinds of grains, plants, and fruits.66 T h e missions, established between 1718 and 1731, having irri­ gation systems were San Antonio de Valero, San Jose y San M iguel de Aguayo, Nuestra Senora de la Purisima Concepcion de Acuna, San Francisco de la Espada, and San Juan Capistrano. T h e sixth irrigation system was the San Pedro ditch, built to supply water to the villa of San Fernando de Bexar. In 1776 work was begun on another ditch to supply civilians; it became known as the Upper Labor ditch (see Figs. 10 and 11). T h e Concepcion, or Pajalache, ditch was built in 1729 to sup­ ply water for the Concepcion mission. It was the longest and largest of the old acequias in San Antonio. Tradition says that the padres used boats on it for transportation to and from the mission and to keep the canal in repair. A dam 5 feet high across the river in the center of town provided water. T h e Con­ cepcion ditch was used until 1869, when it was abandoned be­ cause of the damages from overflows during floods. T h e San Pedro ditch, begun in 1738, was 6 feet wide, 2 feet deep, and 4 miles long, and it irrigated some 400 acres. Its headgate was at San Pedro Springs. T h e canal followed the divide between the San Antonio River and San Pedro Creek, which made it possible to irrigate by gravity the land on both sides of the ditch. It was, Arneson says, “a model of intelligent canal location.” 67 T h e Alam o Madre ditch was built between 1718 and 1744, deriving its water from the east side of the San Antonio River by means of a low dam. T h e ditch was about 6 miles long and irrigated about 900 acres of the lands of the mission of San 66 Report by Thomas Phelipe de Winthuysen of condition of presidios and missions in Texas and recommendations for removal of the capital from Los Adaes to San Antonio. August 19, 1744.— Bexar Archives. Trans­ lations, Vol. XV, p. 56. Archives Collection, University of Texas Library. 67 “Early Irrigation in Texas,” Southwestern Historical Quarterly, Vol. XXV, p. 123.


T h e Spanish E lem ent in Texas W ater Law

Antonio de Valero. Several laterals were constructed from the main ditch. T h e San Jose ditch began on the west side of the San Antonio River, about two miles above the mission, and watered some 600 acres. It was built around 1720 or 1730 and abandoned in i860 because the loose-rock dam across the river kept washing out. T h e San Juan ditch ran on the east side of the San Antonio River, opposite the San Jose canal. Begun in 1731, it irrigated about 500 acres. It was still being used as late as 1921. T h e Espada mission was served by a ditch which took water from the west side of the San Antonio R iver by means of a loose-rock and brush dam 270 feet long. T h is dam was built on a ledge of rock in the river and was about 8 feet high. T h e layers of brush were weighted with rocks and gravel and earth thrown in the front. A deposit of lime salts from the water gradually cemented the rocks together, forming an effective dam. T h e canal crossed Piedras Creek on a stone aqueduct. About 400 acres of mission lands were irrigated from this source.68 T h e last of the ditches constructed in San Antonio under the Spanish was the Upper Labor ditch, built between 1776 and 1778, by a group of settlers who formed a community acequia. It drew water from a large spring at the head of the San Antonio R iver and irrigated about 600 acres of land between the river and the San Pedro Creek, north of the town.69 T h e ditches, canals, and other works of the acequias were constructed by the people of the community or by the Indians of the missions, under the supervision of the missionaries. Often the work was done a little at a time, so that years might be re­ 68 The ditch ceased to be used about 1870 but was restored by the Espada Ditch Company in 1895. The ditch was cleaned, widened, and deepened and the dam repaired.— See Hutson, Irrigation Systems in Texas, pp. 45-46. 69 On irrigation in San Antonio, see Arneson, “Early Irrigation in Texas/' Southwestern Historical Quarterly, Vol. XXV, pp. 123-130; Hutson, Irriga­ tion Systems in Texas, pp. 41-47; Taylor, Irrigation Systems of Texas, pp. 51-54; William Corner, San Antonio de Bexar, A Guide and History, pp. 41-50.

Hispanic-Am erican W ater Laws and In stitutions


quired to finish a project. W ooden implements were generally used for digging, and dirt was removed on rawhides drawn by oxen or suspended from poles carried by two men. Since sur­ veying instruments were generally unavailable, the fall was esti­ mated and water let in the ditches from time to time to test the flow. T h e ditches followed the grade contour and generally went around hills or rises. Some dams were built of mortar and stone, but most were built of rock and brush. Headgates were of wood, ordinarily. T h e canals were carried across gullies or other canals through hollowed-out logs. In some cases stone aqueducts were built. W ater wheels were installed in some acequias to lift water to land higher than the canal.70 Administration of Waters: T he R ole of the Royal Government. T h e bulldozer has made wooden imple­ ments and oxen obsolete, and consequently there is little except antiquarian interest in the methods used to construct the ditches, headgates, and dams of the early acequias. But the way in which water was administered by the Spanish officials in Texas is a matter of more practical concern, for it is possible that Texans today can benefit from the experience of the Spanish authori­ ties in apportioning water when there were conflicting claims among the users and in developing new water resources. T h e waters of the San Antonio River and San Pedro Creek, like all other waters of New Spain, belonged to the royal patri­ mony. T h e granting of those waters and the supervision of their use were matters which engaged the attention of the king in Spain and the viceroy in Mexico, as well as the governor of the province of Texas and the captain of the presidio at San A n ­ tonio. Because the Spanish made and preserved records of almost every official action taken in the smallest colonial settlement, it is possible to learn a good deal about their policies in water administration.71 70 See Arneson, “Early Irrigation in Texas,” Southwestern Historical Quarterly, Vol. XXV, pp. 128-130; Hutchins, “The Community Acequia,” ibid., Vol. XXXI, pp. 274-275. 71 Most of the documents used in this study are in the Bexar Archives,


T h e Spanish E lem ent in Texas W ater Law

In accordance with the instructions of the viceroy, the gover­ nor or captain of the presidio made the original distribution of lands and waters to the settlers at San Antonio. T h e missions, all of which were located on watercourses, were given “ possession of lands and waters with the accustomed solemnity.” 72 T h e settlers from the Canary Islands, who were brought to establish the villa of San Fernando de Bexar in 1731, were given tracts of land and told to use the waters of San Pedro Creek and the San Antonio R iver.73 T h e irrigable lands, which lay between the two streams, were divided and distributed among the settlers by lot on July 11, 1731. T h e captain of the presidio, whose duty it was to supervise the distribution, found that there were 10.75 cabal­ lerias of irrigable land, of which he set aside slightly more than 2 caballerias as commons. T h e remainder was divided into 16 suertes, each tract being 105 usual varas wide and in length the distance from San Pedro Creek to the San A ntonio River. T ickets were numbered one through sixteen, and the head of each family drew one, thus determ ining which suerte was his.74 the Nacogdoches Archives, and the records of the city of San Antonio. A good many are included in the Blake Collection, Vol. 62, Archives Collec­ tion, University of Texas Library. Some important documents relating to water in San Antonio were found by William Corner in the County Clerk’s office and the City Engineer’s office in San Antonio, presumably in the 1880’s. He used these documents in preparing his chapter on water and irrigation in San Antonio de Bexar, A Guide and History, published in 1890. Included is a translation of Baron de Ripperda’s Decree to Inhabit­ ants of Bexar, January 10, 1776, which reviews briefly the administration of waters in San Antonio to 1776. 72 Fray Pedro Perez de Mezquia to the viceroy. May 4, 1731.— Archivo General de Mexico. Provincias Internas, Vol. 236. Bolton Transcripts,, Archives Collection, University of Texas Library. 73 See: Viceroy’s Dispatch authorizing the governor of Texas, or, in case Df his absence, the captain of the presidio of San Antonio, to examine the place in which is to be founded the settlement for which the fifteen families have come, and to measure, mark out the boundaries, assign lands, and do the other things ordered, in accordance with this dispatch.— Translation in Austin, “The Municipal Government of San Fernando de Bexar, 17301800,” Southwestern Historical Quarterly, Vol. VIII, pp. 338-343. 74 See: Record of the division and distribution of the lands between the San Antonio River and San Pedro Creek, having the advantage of being irrigated, among the fifteen families from the Canary Islands by the order

H ispanic-Am erican W ater Laws and In stitu tio n s


Subsequent to the original distribution of lands and waters, problems arose about the apportionment of water, and the vice­ roy from time to time issued decrees relating to this subject. In these decrees the viceroy seems to have been guided by the prin­ ciple set down in the Recopilacion that waters were to be ad­ ministered in such a way as best to advance the welfare of the community as a whole.75 He decreed in September, 1731, that the waters were to be divided among the first four settlers and the missions, each being allowed turns by hours of the day or night for irrigating their land. The waters were to be allowed to flow freely to the next neighbor’s land so that “all would be provided with plenty of water for their lands in cultivation without injuring each other.” 76 This policy of sharing the waters was not entirely acceptable to either the missions or the settlers. The president of the mis­ sions protested that there had been scarcely enough water for the five missions before the waters were shared with the settlers. The viceroy nonetheless ordered the captain of the presidio to comply with his decree to divide the waters, giving both the missions and the Canary Island families a share. To the presi­ dent of the missions he wrote, in December, 1731, that there was sufficient water for all if it was wisely managed, by rotating its use. And he added, “It would be a lamentable thing that after His Majesty has spent a vast sum from his Royal Treasury in bringing these families here from the Canaries, they should be abandoned, and should be left without water, which would be the same as having brought them to perish.” 77 In May, 1733, the viceroy again found it necessary to take up the question of water apportionment. He ordered the governor of the province to distribute the waters of the San Antonio of the governor— also the names of those fifteen families. July 11, 1731.— Translation in ibid., pp. 343-346. 75 Recopilacion, Bk. 4, Title 17, Law 9. 76 Baron de Ripperda, Decree to Inhabitants of Bexar, January 10, 1776. — Translation in Corner, San Antonio de Bexar, p. 46 n. 77 Marquis de Casafuerte to Gabriel de Vargara. December 25, 1731.— Bexar Archives, University of Texas Archives translation, Vol. II.


T h e Spanish E lem ent in Texas W ater Law

R iver and San Pedro Creek among the fathers of the missions, the garrison, and all the settlers of the villa of San Fernando, “ giving to all the necessary supplies without depriving the In­ dians in their settlements.” If the water should at any time be insufficient to supply everyone continually, the neighbors were to take turns according to the Recopilacion, which stated that “ in case their town should increase in population, it was the imperious duty of the Governor to have all the inhabitants w ell supplied with water.” In compliance with this order, the settlers residing above the town ford on the San Antonio R iver were given possession of the right of water for irrigation on October 27> i 733-78

As the settlement grew and the demand for water increased, the existing acequias and other means for supplying water came to be inadequate. T h e Canary Island settlers protested in 1736 that the governor was taking their lands and waters to give to new settlers. Even before his action, they had received a day’s water only every twenty days and had to rent four days of water belonging to the villa to produce their crops. T h ey suggested that if it was possible to take water from the San Antonio R iver in addition to San Pedro Springs, the settlement could be en­ larged without injuring anyone. In this instance the viceroy ordered the governor to comply with the original decree regard­ ing the distribution of lands and water to the settlers at San Antonio and instructed the settlers to use norias (chain pumps) and bimbaletes (pump jacks) to increase the supply of water available for irrigation.79 T h e possibility of opening a new saca de agua was investigated several times. In 1745 the civilians petitioned for an investigation of the land and waters of the San Antonio River and San Pedro Springs, but the investigation was apparently not carried out until 1762. T h en the governor, accompanied by the town officials and the greater part of the community, examined a site about a league north of the town 78 Baron de Ripperda, Decree to Inhabitants of Bexar, January 10, 1776. — Translation in Corner, San Antonio de Bexar, p. 46 n. 79Joachin Miguel de Anzures to viceroy. January 24, 1736.— Bexar Archives. Blake Collection, Vol. 62.

Hispanic-Am erican W ater Laws and Institu tio n s


which offered a good source of water for irrigation. A fter this examination, Geronimo Flores, who was reputed to be skilled in the withdrawal of waters, was appointed to determine the lands which could be irrigated and the cost of the project. Flores reported that some 5,000 square varas of land between the San Pedro Creek and the San Antonio River could be irrigated with little difficulty, at a cost of three thousand pesos. Although a copy of the report was sent to the viceroy, apparently no action was taken at the time.80 Finally, in 1776, work was begun on a new acequia, which became known as the Upper Labor ditch. From the accounts of the procedure followed by the governor, Baron de Ripperda, in carrying out this enterprise, it is possible to gain considerable insight into the operation of the HispanicAm erican water system. T h e project was initiated by a group of citizens who asked the governor to investigate the possibilities of irrigating the land north of the town between San Pedro Creek and the San Antonio River. T h e governor, who regarded the matter as one of great importance, first made inquiries to determine whether the Canary Islanders, or their descendants, or the missions had any superior rights to the water. T h e available documents were examined and reviewed, and it was decided that there was no legal bar to the construction of a new saca de agua. Both the Canary Islanders and the missions accepted this decision, but with reservations. T h e Canary Islanders reserved the right to use any document found subsequently in the archive of the captain-general. T h e president of the missions asserted that the missions had a prior right to permanent and sufficient water for cultivation of their lands because of the terms of the royal decree establishing them, but he agreed to the new acequia because he believed there was enough water in the river for all users.81 H oping that he had eliminated the causes of any future conflicts over water rights, the governor issued a decree which set down the procedure to be followed in building the acequia. T h e lands 80Angel de Martos y Navarrete. Expediente 8/16 to 8/20/1762.— Bexar Archives. Blake Collection, Vol. 62. 81 Corner, San Antonio de Bexar, pp. 46-47.


T h e Spanish E lem ent in Texas W ater Law

that became irrigable as a result of the new ditch would be dis­ tributed among those who had contributed their tools and labor to its construction. These shareholders were to elect an intelli­ gent and experienced acequiero to supervise the work. He would receive two suertes for his efforts, but he was to supply two work­ ers. T h e governor specified the width and depth of the ditch and required that the water gates have foundations of stone and mortar. W ork on the acequia continued until 1778, and it was not finally completed until 1781. T h e lands were distributed in two drawings, one in 1777 and the second in 1778. In the first draw­ ing, 25,233 square varas of land between the San Antonio R iver and the acequia were divided into twenty-six suertes. T h e draw­ ing of lots is described as follows by W illiam Corner: The twenty-six tickets are placed in one covered urn and the names in another, two children draw these, the Governor reads the results. Each shareholder draws his Suerte (literally his luck) of good rich acres of the Labor de Nuestra Senora de los Dolores, and it is granted to them by the king that they may take possession of it, and bequeath the titles to their children or any other heirs, and no other person or persons shall at any time have any claim or right in the said properties which have hitherto been considered as belonging to the Crown of Spain.82 T h e grants were made on the condition that the recipient cu lti­ vate the land; keep the ditches clean and the locks, water gates, fences, aqueducts, etc. in good repair; and maintain one horse and arms and ammunition in readiness to meet the enemies of the king.83 T hrough the combined efforts of the royal govern­ ment and the local citizens, a new acequia was thus constructed. Its operation and maintenance became the responsibility of the shareholders, and it was they who received the lands made irri­ gable by the ditch.

82 Ibid., p. 49. 83 Ibid., p. 43.

Hispanic-Am erican W ater Laws and Institu tio n s


Administration of Waters: Local Government. T h e royal government had general supervision of waters, but the local ayuntamiento and its officials were concerned with the day-to-day operation of the acequias and the settlement of dis­ putes among individual water-users. T h e local officials were also responsible for administering the lands and waters that belonged to the m unicipality.84 A t times some of the waters of the m unicipality were rented to individual irrigators.85 T h e alcaldes were often involved in matters relating to water. T h ey issued orders for the cleaning of the ditches and the repair of the bridges and fences along the acequias.86 T h ey authorized fines for those who illegally took water from the ditches.87 T h ey investigated disputes between water-users and handed down decisions as to their settlement.88 In some instances, they were involved in regulating the affairs of an acequia. In 1784, for example, the shareholders of the Upper Labor acequia, after a disagreement among themselves, asked the governor to have the alcalde enforce the regulations about the cleaning and upkeep of the canals and fences. T h e governor complied, ordering that the fences be repaired by January 12 each year and the canals be cleaned beginning February 3. A shareholder who culpably failed to comply with the order would be fined fifteen pesos. Anyone who did not work his land for two years through lazi­ ness w ould lose his right to it and it would be sold at auction. T h e alcalde, who was to enforce the order, reported that he had 84 Austin, “The Municipal Government of San Fernando de Bexar, 17301800,” Southwestern Historical Quarterly, Vol. VIII, p. 320. 85 Joachin Miguel de Anzures to viceroy. January 24, 1736.— Bexar Archives. Blake Collection, Vol. 62. 86 For a 1735 order regarding the San Pedro canal in San Antonio, see Bexar Archives. University of Texas Archives translations, Vol. VI, p. 92. 87 See Francisco Delgado to Francisco Joseph de Arrocha. April 29, 1752. — Bexar Archives. Blake Collection, Vol. 62. 88 See: Procedures pursued at the request of Juan Jose Montes de Oca, civilian of the Town of San Fernando, in order that Don Toribio de la Fuente, of the same neighborhood may not prevent him in the irrigation on the piece of land that he has on the Upper Labor. 1781.— Blake Collection, Vol. 62.


T h e Spanish E lem ent in Texas W ater Law

read the decree to the shareholders “ all word for word in loud voices” so that they would understand and obey.89 In the Bexar Archives are many documents recording the sale of land and water rights. These contracts of sale usually provided for the conveyance of a certain suerte or suertes of land and the water of San Pedro Creek or the San Antonio R iver to which the settler was entitled.90 Some contracts, such as one of 1749, called for the sale of “ two suertes of land, . . . with water for twenty-four hours every twenty days.” 91 In eighteenth-century Bexar, as in twentieth-century Texas, men sometimes came to blows over water. One Santiago Seguin was tried in 1796 for attacking the procurador, following a dis­ agreement about Seguin’s right to take water for irrigation. Seguin admitted that he had given the official two licks on the head with a cornstalk, but he contended the procurador had acted unfairly. T h e ayuntamiento found Seguin “ seriously guilty for having gone out to charge the Regidor Don M anuel Berban with evil thinking” and gave the injured man the right to mete out the punishment. T h e two contestants reached a peaceful agreement, however, and Seguin suffered no more than having to pay court costs.92 In this account of the acts of the royal officials in administer­ ing water in eighteenth-century Bexar, the governm ent’s role appears as that of a referee among water-users. Each group— Canary Islanders, missions, or new settlers— apparently felt at times as if its interests were being neglected; each group sought 89 See: Citizens using Irrigation to Gov. Domingo Cabello. March 30, 1784.— Blake Collection, Vol. 62. 90 See, for example: Contract of [real] sale of land and water [rights] made by Don Manuel de Niz to Don Pedro de Oconitrillo. March 22, 1738. — Bexar Archives. University of Texas Archives translations, Vol. X, pp. 56-61. 91 See: Sale of a house and other property by Don Toribio de Vrrutia to Don Ant.° Rodriguez. April 12, 1749.— Bexar Archives. Blake Collection, Vol. 62. 92 See: Trial of Santiago Seguin for Attack on Procurador. August 12, 1796.— Bexar Archives. Blake Collection, Vol. 62.

Hispanic-Am erican W ater Laws and In stitutions


to hold on to as much of the supply as possible and regarded new users with suspicion. T h e royal officials seem to have attempted to find some solution that would distribute the waters equitably and cause as little injury as possible. T h ey refused to cut off new settlers from a supply of water because of the protests of the previous users, but they also acted to protect existing rights. T h ey initiated or approved schemes for developing new sources of supply. W hile undoubtedly there were weaknesses in the system and the inhabitants of San Antonio were hampered by the delays which resulted from having to refer questions to the viceroy in Mexico, there were advantages in having an authority above the conflicting users of the settlement to consider water administration from an over-all view. H ow successful was the Spanish system of administration of waters in San Antonio? W hat sort of evaluation, if any, can be placed upon it? Judged by a pragmatic standard, it must be re­ garded as successful, for it did work. Spanish San Antonio, watered by its seven acequias, was able to support a population of about two thousand. W ith the coming of political troubles and revolution, the irrigation systems fell into disuse and disre­ pair and the population declined to a few hundred. By the 1840% as Ferdinand Roemer observed, the fertile plain south of San Antonio, which had been extensively cultivated by the Spanish, was again a wilderness.93 T h e Spanish system must be adjudged successful in another sense. It worked in such a way as to prevent water monopoly and to foster a more or less equitable sharing of water. T h e irrigable lands and the waters to make them productive were originally distributed by lot among the citizens. W here new land was made irrigable, it too was distributed, along with shares of the water, by lot among the shareholders of the acequia. Royal officials re­ 93 Texas with Particular Reference to German Immigration and the Physical Appearance of the Country, trans. from the German by Oswald Mueller, pp. 120, 127. Roemer noted that “the artificial canals, through which the plain was irrigated with water from the San Antonio River, are still there.”


T h e Spanish E lem ent in Texas W ater Law

peatedly insisted that the waters should be apportioned among competing users in such a way as to secure the greatest benefit for the greatest number. It is true that the water problems of the Spanish municipality seem simple compared to those of the present-day metropolis. There was little use or need of water for industrial purposes. Municipal needs were infinitesimal compared to those of a mod­ em city. The techniques of irrigation were crude and demanded only a tiny fraction of the water that a contemporary system utilizes. In sum, the simple technology of the time meant that water use was on a much smaller scale than it is today. On the other hand, it should be pointed out that twentieth-century technology, which demands unbelievable quantities of water, also provides means for supplying water that would have seemed miraculous to the eighteenth-century Spaniard. Within the limits of the techniques which he had, the Spaniard must be given credit for developing the water resources available. Above all, he recognized, as Anglo-Americans have not always done, that water is the life blood of the land, a precious commodity to be carefully and wisely husbanded.

V. Spanish Water Law in Texas, 1821-1958 Judge Cureton poured old Spanish wine into an an­ cient English bottle, and corked it good and tight with American due process. A. A.


W i l l W il s o n , “The Flow and Underflow of Motl v. Boyd.”

h it e a n d

The law is a perpetual striving to fit doubtful situ­ ations into a scheme that moves in the direction of a realized sense of right. M a x R a d in , The Law and You

S p a n i s h s o v e r e i g n t y in the province of Texas ended when M exico won its independence from the mother country in 1821. But Spanish law survived as a living force through the ineradicable marks which Spain had made in Texas during its long period of conquest and colonization. T hough scholars have written off the Spanish origins of Texas as a part of the dead past, the activities of the conquistadors and padres, the ways of the presidio and pueblo, and the mode of organization of the community acequia all have a bearing on present Texas water law. Regardless of how sophisticated and elaborate his ways may become, man eventually must acknowledge his dependence upon the land as the source from which comes all that he may build or create. T h e titles to thousands of acres of land in Texas rest on Spanish grants. T h e terms of the original grant and the laws under which it was made determine the nature of the water rights which appertain to the land. Consequently, though much of the Spanish heritage of Texas may have been lost or may have fallen into oblivion, the nature of Spanish land grants and Spanish water rights remains a matter of great importance in

Texas law and Texas life.


T h e Spanish E lem ent in Texas W ater Law Spanish L an d G rants in T e x a s

T h e Spaniard was one of the best record-keepers in all history, but the vicissitudes of life in a distant frontier province and the currents of revolution which swept repeatedly through M exico and Texas during the early nineteenth century resulted in the destruction of many of the documents recording the granting of land in Spanish Texas. It is, therefore, impossi­ ble to determine with any exactness the number of acres in pres­ ent Texas covered by titles of Spanish origin. T h e best estimates are that titles to from 10,000,000 to 20,000,000 of Texas' present 170,000,000 acres rest on grants by the Spanish Crown. These Spanish grants are located in the vicinity of San Antonio and Goliad, near Nacogdoches, and along the R io Grande. It is the grants along the R io Grande which make Spanish land and water rights of such importance in Texas water law, for these lands and waters are those of the Magic Valley, with its extensive irri­ gation development.1 T h e Spanish grants in the R io Grande Valley were of three principal types: (1) the porciones, individual assignments of land for agricultural and grazing purposes made by the Crown in 1767 in the five jurisdictions of Laredo, R evilla (Guerrero), Mier, Camargo, and Reynosa; (2) grants to individuals in much larger tracts than the porciones for grazing or ranching purposes 1 On Spanish grants in Texas, see Wooten, A Comprehensive History of Texas, Vol. I, pp. 789-792; Aldon S. Lang, Financial History of the Public Lands in Texas (Baylor Bulletin, Vol. XXXV, No. 3), p. 27; Sayles, Early Laws of Texas, Vol. I, p. lx; Reuben McKitrick, The Public Land System of Texas, 1823-1910 (Bulletin of the University of Wisconsin, No. 905), pp. 25-28. Many of the documents relating to land grants made in Texas by Spain and Mexico are in the Spanish Archives, General Land Office, Austin. Fewer than a hundred of the grants in the Spanish Archives are Spanish in origin. This does not include grants to the lands south of the Nueces, for the most part. Records from San Antonio and Goliad are few and fragmentary, though it is known that a sizable number of titles were issued to lands around these two Spanish settlements. The best explanation for the scarcity of records seems to be that the archives were badly damaged during the difficulties under Joaquin de Arredondo in 1813. Considerable quantities of land in the San Antonio-Goliad area are held under “ pre­ sumed grants” from Spain.— See Taylor, The Spanish Archives of the Gen­ eral Land Office of Texas, pp. 1-30.

Spanish W ater Law in Texas, 1 8 2 1 -1 9 5 8


only. These grants were made in present Hidalgo, Cameron, W illacy, W ebb, Zapata, and Starr counties, between 1767 and 1810; (3) assignment of vacant lands, largely in present Zapata County, between 1770 and 1810.2 A historian of the lower R io Grande Valley has pointed out that “ every deed to property along the river in W ebb, Zapata, Starr, and in most other in­ stances those of H idalgo and Cameron counties had its origin in a Spanish porcion or grant, adjudicated at a time when the Rio Grande Valley was a part of Spain.” 3

Classification of Lands. T h e Spanish, in making grants of land, were careful to consider the relation of the land to water. T h e ir procedures can be seen in the work of the royal commissioners sent to grant lands to the settlers of Jose de Escandon’s colonies in 1767.4 T h e commissioners called on the people of the community to name two experts to state under oath the qualities of the land assigned to or in the vicinity of this settle­ ment, with distinction of those that are irrigable (de riego) or tem­ porarily irrigable (temporal), those that are useful for cultivation, for pasturage, for town commons, for grazing, commons, and those proper for the town, in order to give them the corresponding use, with such equity that all may participate in the good and the bad.5 T h e origins of this system of classifying lands as (1) de riego or de regadio— arable land permanently irrigable or with the facilities of irrigation; or (2) as de temporal— arable land de­ pendent upon rainfall for moisture; or (3) de agostadero or de abrevader0— lands suitable for grazing— are not clear. Regula­ 2 Florence Johnson Scott, Historical Heritage of the Lower Rio Grande Valley, pp. 99-119. 3 Ibid., p. xv. 4 One of the acts performed as a symbol of possession of a grant was the drawing of water on the land. See an account of the grant made to Joseph Franco de la Garza y Cantu by Captain Juan Antonio Balli, 1767, in Acta de Visita General, Reynosa, 1767.— Transcript and translation, Spanish Archives, General Land Office, pp. 118, 285. 5 Acta de Visita General, Camargo, pp. 2, 181-182.


T h e Spanish E lem ent in Texas W ater Law

tions requiring that irrigable land (tierras de regadio) be dis­ tinguished from the rest of the land were issued as early as 1523.6 In 1612, lands “ susceptible of irrigation” (que hubiera de regadio) were ordered withdrawn from pasturage.7 In the Valley of M exico in the seventeenth century, there were three harvest seasons for wheat: “ that of June called riego, that is irrigated; that of October called temporal, rainy season; and that of early spring, sowed on the mountain sides, was called aventura, that is hazardous.” 8 It has been conjectured that these terms came to be used of the lands on which the crops were grown and in time they came to be written into the laws and regulations re­ garding land.9 T h e terms de riego and de temporal, used in Spanish and Mexican laws and regulations, have caused considerable trouble and controversy. Translators have rendered them in a variety of ways.10 Clarification of the meaning of the terms has become a matter of importance, since the T exas courts have regarded 6 Recopilacion, Bk. 4, Title 7, Law 14; White, New Recopilacion, Vol. II, P- 47 7 Recopilacion, Bk. 4, T itle 12, Law 13; White, New Recopilacion, Vol. II, p. 52. 8 Chester L. Guthrie, “Colonial Economy: Trade, Industry, and Labor in Seventeenth Century Mexico City,” Revista de Historia de America, No. 7 (December, 1939), p. 111. 9 See: Brief for Appellees, E. J. McCurdy, Jr., et al. v. A. O. Morgan et al. (No. 12,626, Court of Civil Appeals for Fourth Supreme Judicial District of Texas), pp. 24-29. 10 The phrases de riego, de regadio, and de regadillo are translated by J. P. Kimball as “irrigable tillage land,” or simply “irrigable.” Gammel translates them as lands “adapted for tillage by means of irrigation,” or “ irrigated land.” The phrase de temporal is translated in a greater variety of ways than is de riego. Kimball translates it as “not irrigable,” and “ till­ age land not irrigable.” Gammel translates it “ not requiring irrigation,” and “ not irrigated.” Both Kimball and Gammel use the word temporal in translating Art. 8 of the Decree No. 190 and explain its meaning in parentheses as “land cultivated during ordinary rains.” The translator of the Actas de Visita General used various expressions— “ temporarily irriga­ ble,” “land without irrigation except such as storms made possible,” etc.— J. P. Kimball (trans.), Laws and Decrees of the State of Coahuila and Texas, Decree No. 16, Arts. 12 and 22, and Decree No. 190, Art. 8; Gammel, Laws of Texas, Vol. I, pp. 101-102, 189.

Spanish W ater Law in Texas, 1 8 2 1 - 1 9 5 8


the classification of lands as to the availability o£ water as one of the key features of the Spanish water law.11 One means of clarification is to seek definitions of the terms involved. Riego and regadio came from the infinitive regar, meaning “ to irrigate, to water.” Temporal as a noun means “good or bad quality or constitution of the weather; a storm or tempest, or a time of persistent rain.” 12 These dictionary defini­ tions are substantiated by the use of the terms in the Actas de Visita General of 1767. T h e experts appointed to classify the lands at Mier, Guerrero, Laredo, and Reynosa reported that the lands were all of one quality— without irrigation (sin riego)— except such as storms, or the seasons (temporal), might make possible.13 Both from the definitions of the terms and from the context of the grants, it seems clear that land classed as de temporal was arable land which was dependent on rainfall for moisture and which might be irrigated, but only following rains. Lands classed as de riego or de regadio were those which had a permanent source of water, those which were permanently irrigable. T h e meanings of the terms are explained further in a recent Texas case: . . . the classification of land as de temporal m eant that it was sub­ ject to cultivation (arable) but that it was dependent solely upon natural rain fall for its water supply. As such, it was distinguished 11 See below, pp. 141-142, 145-146. 12 Real Academia Espanola, Diccionario de la Lengua Espanola (17th ed., 1947). The connection of the Latin word tempus (“ time”) with a certain season or portion of time and with weather or a storm, is reflected in the English word “ tempest.” 13 The exact wording differs from report to report, but the sense is clear. At Guerrero the report was that all the lands were of the same quality, “having no irrigation except when they avail themselves of the assistance rendered by seasons . . .” (“ . . . todas son de una misma cualidad sin mas riego que el que se logra cuando acude el temporal . . .”). At Laredo the lands were “all unfit for irrigation, except such as may be caused by the seasons . . .” (“ . . . son todos de tierra sin riego mas que el que se puede logran de temporal . . .”). See: Actas de Visita General, Mier, pp. 21, 163164; Guerrero, pp. 17, 142-143; Laredo, pp. 11, 77, 81-82; Reynosa, p. 162.


T h e Spanish E lem ent in Texas W ater Law

from lands on the one hand which possessed so little water that they were good only for grazing or pasturage (de agostadero) and, on the other, lands which possessed a permanent and constant source of water for irrigating purposes. This meaning of the expression is confirmed by the expert opinion of Sr. Felipe Sanchez Roman, Pro­ fessor of Comparative Law at the University of Mexico, and for­ merly for 20 years Professor of Civil Law at the Central University of Madrid.14 It is important to observe that mere location on a river did not result in lands’ being classified as de riego in the Spanish system. T h e lands along the R io Grande, for example, were classed as de temporal. W hite and W ilson found, in a study of twentythree Spanish grants in Nacogdoches and Angelina counties and in the R io Grande Valley, only one classified as having running water for irrigation. T h e others, even though on rivers or streams, were regarded as arable or pasture lands,15 T h e evi­ dence gained from a study of land grants in Texas confirms what a knowledge of the Spanish approach to water matters would suggest: that the Spanish classified land as irrigable (de riego) if it was in fact irrigable. W hite and W ilson conclude, “ In reality, the issue of whether a tract of land was ‘irrigable’ or had the ‘facilities of irrigation’ was one of fact and not a legal result which automatically followed from the one fact that a tract of land bordered on a watercourse.” 16 T h e Spaniard was too fam iliar with irrigation, he was too sensitive to the condi­ tions necessary for its practice, to regard land contiguous to a watercourse as irrigable simply because of its location. In short, the Spanish system was not one in which irrigation rights were confined to riparian proprietors. Its emphasis was not on the riparian situation but on the practicalities of irrigating. T h e Spaniards’ awareness of water is shown in another policy of the commissioners in laying out the porclones in 1767. Be14 Brief for Appellees, E. J. McCurdy, Jr., et al. v. A. O. Morgan et al., p.28. See also Ramon Martinez-Lopez, Concerning the Ownership of the Beds of Creeks in the Civil Law} pp. 58-63. 15 White and Wilson, “The Flow and Underflow of Motl v. Boyd,” South­ western Law Journal, Vol. IX, pp. 389-391. 16 Ibid., p. 397.

Spanish W ater Law in Texas, 1 8 2 1 - 1 9 5 8


cause of the aridity of the land, the experts urged that the grants be extensive. Further, each porcion should be laid out “ so that a watering place at the rivers be given to everyone, otherwise the cattle will certainly perish and the porciones of land become useless,” according to the experts at M ier.17 T h e commissioners, having heard the testimony of the experts, ordered that each settler be granted his proper share of land, in leagues of pasture land for stockraising and caballerias for planting. Each “ prim i­ tive” settler was to receive two leagues of pasture land for small stock and twelve caballerias for planting. O ld settlers, those who had lived in the community six years, were to receive two leagues and six caballerias. New settlers were to receive two leagues of pasture land. So that each might have access to the waters and all be accommodated, these tracts were to be laid out with narrow frontage along the river and extended depth to provide sufficient acreage. T h e instructions of the commissioners at Camargo may be used as an example of the procedure fol­ lowed. T h e surveyors were instructed to begin the survey of all at one of the four courses on the margin of the Rivers, leaving to each Porcion a watering place for cattle to them; and to the end of accommodating a greater number, they shall contract the fronts and extend the depths of the Porcions [mc] in such a manner as to compensate, for the want of front, and to leave the surveys in a prolonged quadrangle. . . .18 In all, more than three hundred porciones were laid out in the 17 See: Acta de Visita General, Mier, pp. 163-164. 18 See: Acta de Visita General, Camargo, p. 198. It is interesting to com­ pare the Spanish system with John Wesley Powell's recommendations for the classification of the public lands of the arid region. Powell strongly urged that the lands be classified as irrigable, timber, or pasture lands. Further, he recommended that the pasture lands should be granted in large units, of not less than 2,560 acres, and that each settler should also be granted some irrigable land. The division of the lands, he contended, “should be controlled by topographic features in such manner as to give the greatest number of water fronts to the pasturage lands/’ Powell fore­ saw that under the circumstances of life in the arid region, local com­ munity regulations or co-operation would be necessary.— Report on the Lands of the Arid Region of the United States, pp. 22-24, 43 - 44 *


T h e Spanish E lem ent in Texas W ater Law

R io Grande Valley, with an average area of about 6,400 acres, or a total area of about 2,100,000 acres.19 These practices of the Spanish show that in making grants of land the availability of water was regarded as of paramount im ­ portance. In fact, as has been repeatedly noted, the Spanish law did not simply assume that waters were granted with the land; it made specific grants of both lands and waters. In laying out tracts, the Spanish attempted to provide frontage on streams to as many settlers as possible. T h ey distinguished irrigable lands from nonirrigable and attempted to distribute the various classes of land in an equitable manner. T h e system which they followed was well suited to the needs of an arid or semiarid land. Its major features seem clear enough, but the courts have found much that is controversial in interpreting the Spanish system. Validation of the Spanish Grants. T h e commis­ sioners appointed by the Crown of Spain to adjudicate the land and water rights for the settlers along the R io Bravo in the m id­ dle eighteenth century heard the testimony of the settlers as to the nature of the land, classified it as de temporal or de agosta­ dero, conveyed the porciones to the settlers with the ceremony befitting the agents of the proud Kingdom of Castile, and pro­ ceeded on their way, little realizing how their actions would echo down the corridors of history. T h e vicissitudes that subsequently befell the claimants of the largely uninhabitated tracts of land between the Nueces and the R io Grande are intertwined in the more important histori­ cal movements of the nineteenth century. W ithin this area were felt the westward movement of the Anglo-Americans, the suc­ cessful revolution of Texas and its claim of the R io Grande as a boundary, the decade-long on-again, off-again romance of the young republic and the older one to the north culm inating in the annexation of Texas, the fateful shot at Resaca de la Palma, and the eventual Peace of Guadalupe Hidalgo, establishing the R io Grande as the southern boundary of Texas. 19 Neal King, “Some Irrigation Law Problems Peculiar to the Lower Rio Grande,” Water Law Conferences, Proceedings 1952-1954, p. 301.


Spanish W ater Law in Texas, 1 8 2 1 -1 9 5 8


T h e T reaty of Guadalupe Hidalgo provided that the people living between the Nueces and the R io Grande were to be pro­ tected in their “ liberty, property, and the civil rights now vested in them according to Mexican laws.” According to Article X , “ all grants of land made by the Mexican government, or by the competent authorities, in territories previously appertaining to M exico, and remaining for the future within the limits of the U nited States, shall be respected as valid, to the same extent that the same grants would be valid if the said territories had remained within the limits of M exico.” 20 T h e treaty thus made explicit the principle that land titles and property rights were not altered by a change of sovereignty. T h e recognition of existing rights and the provisions for their protection in the T reaty of Guadalupe Hidalgo did not bring to an end controversies about the lands between the Nueces and the R io Grande. T h e state of Texas appointed a commission in 1850 to investigate titles and claims in the area, and the work of this commission led to the Relinquishm ent A ct of 1852. By this act, the state of Texas gave up “all her right and interest” in the lands of the original grantees in W ebb, Starr, Cameron, Nueces, and Kinney counties whose grants were described in the act.21 T here were other investigations and attempts to per­ fect titles in this much-disputed area, including an act of 1871, which provided for “ obtaining and transcribing the several acts or charters founding the towns of Reynosa, Camargo, Mier, and Guerrero in the Republic of Mexico, and of Laredo in T exas.” 22 T h e Constitution of 1876 provided that titles or claims under Spanish and Mexican grants not recorded in the county where the land was located or in the Land Office, or not in possession of the grantee or a claimant under him prior to the 20 See Arts. VIII, IX, and X of the Treaty of Guadalupe Hidalgo, U.S. Congress, The Treaty between the United States and Mexico, Sen. Exec. Doc. No. 52 (30th Cong., 1st sess., 1848). 21 Gammel, Laws of Texas, Vol. Ill, pp. 941-949. 22 Ibid., Vol. VI, pp. 958-959. In 1872, J. L. Haynes obtained the tran­ scripts and made the translations, the Actas de Visita General cited above, which now form part of the Spanish Archives of the General Land Office, Austin, Texas.


T h e Spanish E lem ent in Texas W ater Law

accrual of a later title from the sovereignty of the soil would not be valid against the later title.23 T h e provision made any unre­ corded or unarchived titles invalid, but the Texas Supreme Court subsequently declared Section 4 of A rticle X III uncon­ stitutional.24 Disputes about the Spanish grants have continued to appear in the Texas courts, and the end is not in sight.

M ajo r D evelopm ents in T e x a s W a te r L aw , 1836-1926 T he Courts. T h e revolution against Mexican rule meant that the influence of the Spanish law in Texas steadily waned, while the English common law became ascend­ ant, though the hard core of rights deriving from the Spanish lands remained unassimilated. T h e major developments in Texas water law in the last half of the nineteenth century show two trends: (1) in the courts, the riparian rights of the commonlaw system were generally upheld, though the courts had diffi­ culty in fitting that system to Texas conditions and never lost sight entirely of the Spanish foundations of Texas law; (2) in legislation, initiated generally by persons interested in irriga­ tion, both Spanish practices and later the arid-region doctrine of prior appropriation were influential. T h e few lawyers in Texas during the M exican period had perforce learned something of Spanish law. They, to use Dean M cCorm ick’s words, “ had drunk, though not deeply, at the spring of the civil law.” 25 In the early years of the R epublic of Texas, the lawyers and judges manifested a considerable w illing­ ness to experiment, to borrow from both the Spanish C ivil law and the English common law. O f this pioneer spirit in Texas procedure, Dean M cCorm ick has written: 23 Art. XIII, Constitution of 1876. See also Art. XIV, § 8. 24 Texas-Mexican Railway Co. v. Locke, 74 Tex. 370. 25 Charles T . McCormick (University of Texas, School of Law), “The Revival of the Pioneer Spirit in Texas Procedure,” Texas Law Review, Vol. X VIII (June, 1940), pp. 426-427.

Spanish W ater Law in Texas, 1 8 2 1 -1 9 5 8


T h e m in glin g of the common law ideas w hich the settlers had brou gh t w ith them and the civil law conceptions w hich they were required to accept in the colonial period, and the need for m aking a practical compromise between the two when independence came prom oted the feeling that there was nothing sacred and unchange­ able in either system. L ik e all pioneers they borrowed m any things. As K ip lin g says of H om er, “W h at he thought he m ight require, he w ent and took.” 26

By early statehood the pioneer spirit in Texas law was dying out, and fam iliarity with the Spanish law was declining. T h e members of the bench and bar knew Blackstone, Kent, and A ngell on Watercourses far better than Escriche, Galvan Rivera, and Lasso de la Vega. T h e courts, influenced by the adoption of the common law as the rule of decision in 1840, began to rely on the common-law doctrine of riparian rights in the com­ paratively few water cases that came before them. In Haas v. Choussard, decided in 1856, the court declared that the defend­ ant “had a right to the use of the water adjacent to his lots, as it flowed in its natural channel; a right inherent to and insepara­ bly connected with the land itself/’ It cited A ngell on Water­ courses and K ent’s Commentary as authorities, and quoted the rule that “water flows and ought to flow as it was wont to flow.” Every proprietor, it held, has a natural right to the use of the water that flows in the stream adjacent to his land, and he can­ not divert or diminish the flow without the consent of adjoining proprietors.27 T h e attempt to impose the common law of riparian rights on the semiarid and arid portions of the state proved fruitful of legal difficulties in Texas, as it did in other Western states. T h e Texas courts had considerable difficulty in determ ining whether irrigation was, or was not, a natural or ordinary use of water, for which purpose a riparian proprietor could divert all the waters of the stream if need be. In Rhodes v. Whitehead de­


26 Ibid., p. 429. 27 G. L. Haas v. Peter Choussard, 17 Tex. 588. 28 27 Tex. 304.


T h e Spanish E lem ent in Texas W ater Law

cided in 1863, the court stated in an obiter dictum: “ It may be admitted that the purpose of irrigation is one of the natural uses, such as thirst of people and cattle, and household purposes, which must absolutely afford no ground of complaint by the lower proprietors, if it were entirely consumed.” Five years later in T olle v. Correth/ 9 the court declared that the maxim “ W ater irrigates and let it irrigate,” must be substituted in the arid regions for the common law’s maxim, “ W ater runs and let it run.” But in Fleming v. D avis^ the court in 1872 upheld the common-law rule. Finally in 1905, in Watkins Land Co. et al. v. E . Clements the court settled the question by ruling that irri­ gation was an artificial use throughout Texas and therefore the riparian proprietor could use only a reasonable amount of the stream flow for irrigation purposes.32 U ntil about 1870 the irrigation practiced in Texas was con­ fined almost entirely to the San Antonio and El Paso regions, where the modes of irrigation initiated by the Spanish and In­ dians were continued, little changed despite the advent of M exi­ can and later United States rule. Consequently, the cases involv­ ing water law that reached the courts often involved these Spanish-derived irrigation or water-use systems, and the judges in other instances drew upon the Spanish-Mexican background. Rhodes v. W hitehead, decided in 1863, had to do with a dam built on the Mission Concepcion lands in San Antonio. T h e question decided was whether the defendant had acquired a right to maintain a dam across the San Antonio River, either by grant from the former sovereign or by prescription. In the de­ cision the court held that every riparian proprietor owned to the middle of the stream (nonpublic) and that “ as the owner of the land, he has, prima facie> the right to the use of the water flowing over it, in its natural current without dim inution or 29 31 Tex. 362. 30 37 Tex. 173. 31 98 Tex. 578. 32 See Ira P. Hildebrand, “The Rights of Riparian Owners at Common Law in Texas,” Texas Law Review, Vol. VI (December, 1927), pp. 20-22.

Spanish W ater Law in Texas, 1 8 2 1 - 1 9 5 8


obstruction. He has this right, however, only in common with every other proprietor.” T h e court also declared that “ aqua currit et debet currere ut currere solebat [water flows and ought to flow as it was wont to flow] is a maxim no less of the civil than the common law.” 33 In T olle v. Correth, decided in 1868, involving the use of the waters of the Comal R iver at New Braunfels, the issue was the right of an upper riparian proprietor to irrigate at the expense of a lower riparian millowner. T h e court asserted that the land system of Texas presented a new point in the law of riparian rights. T h o u g h there has been a m u ltip licity of decisions relative to ri­ parian proprietors, and volumes devoted exclusively to watercourses, yet it is believed that the land system of T exas, as handed down from the parent country, presents a new point. T h e books are fu ll of decisions upon controversies relating to the uses of watercourses for m anufacturing purposes, but the cause before the court relates to agriculture.34

T h e court pointed out that the colonization law of Coahuila and Texas made a distinction between irrigable and nonirrigable lands and that the M exican governm ent also knew, it is presumed, the im portance, or rather the necessity of irrigation for agricultural purposes, es­ p ecially in the western portion of the province. . . . T h e fact that lands were valuable in the ratio of their irrigable qualities, and that the irrigable lands were not subject to m onopoly, is conclusive that the governm ent in granting the lands, granted the irrigable rights and privileges thereof.35

A case decided in 1911 involved two groups of irrigators in San Antonio, one deriving its water from the Ace quia de la Espada and the other from the Ace quia de San Juan. T h e water rights and lands involved were derived originally from the 33 Rhodes v. Whitehead, 27 T e x . 304 at 309, 310. 34 Tolle v. Correth, 31 Tex. 362 at 364. 35 Ibid. at 364, 365.


T h e Spanish E lem ent in Texas W ater Law

Spanish missions of Espada and San Juan de Capistrano. In 1824 the Mexican government had granted these mission lands and the accompanying water rights to individuals, the grants ordi­ narily being for one day’s flow of water and one labor of land. T h e water rights of the San Juan acequia were acquired eventu­ ally by the San Juan Ditch Company. During the drought of 1910 this company began to take practically all the waters of the San Antonio River, which had formerly supplied both ditches. T h e question before the court was whether the M exican grants of 1824, which had been issued over a period of several days, established a prior right to the waters in the holders of the earliest grants. T h e court asserted that, while it did not question the power of the Mexican government to “ make valid grants of waters of public streams to individuals that would give exclusive right, it has not done so in this instance.” T h e M exican grants, the court held, gave to each grantee rights in common with all other grantees to the waters of the San Antonio River. N o one acquired a superior right to water that “ would deprive other riparian owners of their proportionate share of the flow of the river.” In sum, “ whatever right the appellees had to the flow of water is in common with all the others.” 36 These decisions indicate that the courts, while applying much of the common law of riparian rights to Texas, took cognizance of the fact that conditions in Texas, especially in the arid region, differ markedly from those in which the common law had de­ veloped. T h e courts likewise noted from time to time that the Spanish elements in Texas law must be considered in dealing w ith water law questions. T he Irrigation A ct of 1852. If the court decisions of the period after 1840 were deeply imbued with riparian doc­ trines, the legislation was not. In 1852 the legislature passed “A n A ct Concerning Irrigated Property,” which was the sole Texas statute regulating the use of water for irrigation until 1889. By this act the county courts were given authority to 36 San Juan Ditch Company v. Cassin et al. (Court of Civil Appeals of Texas), 141 S.W. 815 at 817.

Spanish W ater Law in Texas, i S 2 1 - 1 9 5 8


order, regulate and control the time, m ode and m anner of erecting, repairing, cleaning, guarding and protecting the dams, ditches, roads and bridges, belonging to any irrigation farms . . . owned con­ jo in tly by two or m ore different persons . . . situated outside of a corporation having jurisdiction thereof.

T h e court was empowered to establish “all the needful police government and civil control over such irrigated farms and property,” and to assess fines for violations of regulations estab­ lished by the court or by the joint owners or “recognized by said court as consistent with ancient usage and the law of the State. . . Further, the court was authorized to order meetings of the joint owners to elect commissioners and other officers and to consider any other business. Or, the court could elect the offi­ cers itself and “regulate the right of way, the stoppage and pas­ sage of the waters, and the right distribution of the shares of said water.” 37 T h e supporters of this measure in the House were Samuel Augustus Maverick and Robert S. Neighbors, of Bexar and Medina counties, and B. M. Browder, of El Paso County; in the Senate, Rufus Doane, of El Paso, took the lead in securing its passage.38 A t both San Antonio and El Paso, irrigation systems which had originated as Spanish acequias still were in use. It is clear that what the legislators from these two places desired to do in securing enactment of the statute of 1852 was to regularize the customs and practices which had formerly found their legal footing in the Spanish law of waters.39 T h e pattern outlined in 37 Gammel, Laws of Texas, Vol. Ill, pp. 958-959. 38 Texas, Fourth Legislature, House Journal, pp. 235, 577; Senate Jour­ nal, pp. 379-380, 416. 39 The status of El Paso had been finally established by the Treaty of Guadalupe Hidalgo of 1848. The provisions of that treaty protecting property rights in the ceded territory included the valid water rights of existing acequias, but the previous laws regulating acequias were not con­ tinued in force. Texas was not the only Southwestern state to enact legisla­ tion to meet this situation; New Mexico, Arizona, and Colorado also passed laws regulating acequias.— See Hutchins, “The Community Acequia,” Southwestern Historical Quarterly, Vol. XXXI, pp. 266-270. El Paso County was created by the legislature in 1850 and was consequently first represented in the Fourth Legislature.— Gammel, Laws of Texas, Vol. Ill, p. 462.


T h e Spanish E lem ent in Texas W ater Law

the act for management of irrigation by the joint owners of the irrigated lands under the supervision of the local government is a direct copy of the Spanish community ace quia. T h e act of 1852 required the courts to abide by “ ancient usage.” T h e word “ suerte”— to denote an irrigated plot— was even retained in the act. In short, as Davenport has written, “ this statute was . . . a mere re-enactment of that portion of the ‘ancient law ’ which regulated community irrigation,” substituting the Anglo-Am eri­ can county court for the Spanish-Mexican ayuntamiento.40 T h e T exas Supreme Court in 1868 observed that in enacting this law the legislature “ intended to carry out the principles of the M exican laws.” 41 It is significant that there is no mention of the term “riparian” in the act and no suggestion that only riparian lands could be irrigated. Section 4 refers to “ owners of any suitable lands and waters,” and Section 5, which outlines the procedure for estab­ lishing new irrigation projects, provides that the court may order “ the m ultiplication or extension of any ditches for irriga­ tion, and of irrigated farms at and below, or at the sides of other such property. . . .” 42 T h is first state irrigation statute, passed before the Texas courts had made any decision dealing with riparian rights, was the product not of the niceties of legal learning but of the needs of the arid and semiarid portions of the state for statutory recog­ nition of the irrigation institutions existing there. Concerned with the immediate needs of the irrigators in their communities, the legislators from San Antonio and El Paso secured the pas­ sage of this measure, incorporating the Spanish system of irriga­ tion into the statutory law of Texas. W hite and W ilson have pointed out that the fact that this law was authored and sponsored by legislators fa­ m iliar w ith such early T ex a s systems and was passed by a legislature consisting of a substantial num ber of men, all of whom , w h o were 40 Davenport, “Development of the Texas Law of Waters,” Vernon's Annotated Revised Civil Statutes, Vol. XXI, p. xix. 41 Tolle v. Correthf 31 Tex. 362 at 364. 42 Gammel, Laws of Texas, Vol. Ill, pp. 458-459.

Spanish W ater Law in Texas, 18 2 1 -1 9 5 8


as much as forty years of age, could have had first hand knowledge of irrigation practices throughout the most active period of Texas colonization, makes it likely that few, if any, of that date regarded the riparian, especially the riparian only, as having superior right in the waters of our streams for irrigation.43

M o tl v. Boyd and Its Significance A t the time of its passage, the irrigation act of 1852 occasioned little controversy in the legislature and even less in the press.44 As modern irrigation began to develop, how­ ever, and large-scale operations got under way, there was grow­ ing interest in the irrigation question and, with that, the ques­ tion of water rights. Large-scale irrigation along the lines now practiced in Texas began to develop first in the western part of the state about 1868, with the construction of a ditch at Del Rio. Systems were built on the Pecos from 1875 onwards, and exten­ sive works were begun at El Paso about 1890. Other sites of sig­ nificant irrigation development were Fort Stockton and the Nueces drainage area, and the Concho, San Saba, and Llano, and other tributaries of the Colorado River. Large-scale irriga­ tion along the lower Rio Grande began about 1900. Jefferson County, on the southeastern border of Texas in the humid part of the state, pioneered in rice cultivation in the early 1890’s, R ice culture spread rapidly to the area southwest of Jefferson County, and by 1910, rice irrigation was the leading form of irrigation in Texas, exceeding all others in point of money invested and extent of area covered. Irrigation on the High Plains, based on ground-water sources, began about 1920 45 As irrigation became more important, the conflict between riparian proprietors and prior appropriators became increas­ 43 White and Wilson, “The Flow and Underflow of Motl v. Boyd,” Southwestern Law Journal, Vol. IX, p. 404. 44 The Texas State Gazette, April 10, 1852, ran the text of the act, with­ out editorial comment. Neither did the Gazette carry any comment on the act in its issues covering the session of the Fourth Legislature. 45 J. C. Nagle, Irrigation in Texas (U.S. Department of Agriculture, O f­ fice of Experiment Stations, Bulletin 222), pp. 33-35.


T h e Spanish E lem ent in Texas W ater Law

ingly bitter. T h e victories of the appropriators in the legislature in 1889, 1895, 1913, and 1917 were offset in large measure by riparian victories in the courts.46 T h e contest became so violent and the issues involved so important that the Supreme Court in the case of M otl v. Boyd, decided in 1926, attempted “ to investi­ gate the whole subject for the purpose, if we can, of ascertaining the rule applicable in this State, and of harmonizing our statutes and decisions and setting at rest, in so far as we can, the ques­ tion involved.” 47 T h e opinion in M otl v. Boyd, delivered by C hief Justice Calvin Maples Cureton after four years of study, is undoubtedly “ one of the definitive opinions in Texas on the law of flowing waters.” 48 It deals with a number of questions of 46 Davenport and Canales, The Texas Law of Flowing Waters, p. 45, comment: “Proponents of the doctrine of ‘prior appropriation' have gen­ erally had the ear of the Texas legislature; riparian ownership has consist­ ently prevailed in the Texas courts.” For an account of developments in Texas water law, from 1852 to 1926, see Davenport, “The Texas Law of Flowing Waters,” Vernon's Annotated Revised Civil Statutes, Vol. XXI, pp. xix-xxxiii. 47 Motl et al. v. Boyd et al., 116 Tex. 82 at 99-100. The case involved a conflict between upper and lower riparian irrigators on Spring Creek in Tom Green County, which lies within the semiarid part of the state. The lands in question were granted originally by the state of Texas in 1857. 1886 the lower riparian owner received permission to construct a dam on the lands of the upper riparian proprietor and to build the necessary ditches and headgates to convey the waters to his land. In 1920, R. W. Boyd and H. C. White purchased the tract on which the dam was located, with full knowledge of the existence of the dam and the use being made of the waters by the Motls, by then the owners of the lower riparian lands. Boyd and White approached some of the Motls for permission to secure water for irrigation, but did not follow up the Motls’ suggestion of con­ tacting the oldest of the heirs. In November, 1920, Boyd and White ap­ plied to the Board of Water Engineers for permission to appropriate “storm” waters from the reservoir. Their request was denied. They then installed a pump and began irrigating. The Motls obtained a temporary injunction against Boyd and White. When a motion to dissolve the in­ junction was overruled, Boyd and White appealed to the Court of Civil Appeals, which reversed the judgment of the trial court, and remanded the cause to the District Court. The plaintiffs then secured a writ of error, granted by the Supreme Court. The Supreme Court reversed the judgment of the Court of Civil Appeals and affirmed the decision of the District Court. 48 White and Wilson, “The Flow and Underflow of Motl v. Boyd,”

Spanish W ater Law in Texas, 1 8 2 1 - 1 9 5 8


water law, but for our purposes its importance lies in the fact that it attempts to examine the Spanish-Mexican background of Texas water law, and it is this portion of the decision with which we are concerned. Judge Cureton, in the opinion, analyzes the Mexican coloni­ zation laws and the laws of Coahuila and Texas relating to land grants and to irrigation. He concludes: It is too plain for debate that the Mexican government, through the central Government of Mexico, and through those of Coahuila and Texas and Tamaulipas, was much concerned with, and under­ took to regulate to some extent, the subject of irrigation and water rights. It would be unreasonable to say that those governments sold or assigned lands to colonists, charging therefor a different price for irrigable lands to that charged for other lands, limiting the quantity of irrigable lands which might be granted to one person, and pro­ viding for surveys to front one-fourth or one-half on the streams, without meaning by such Acts and decrees to give to the land own­ ers rights to use the water for irrigation as well as other purposes. It is apparent, at least from 1824 on>that it was the policy of the Mexican government to cause its waters to be distributed to its colonists along with its lands, and we have no doubt that the gen­ eral policy was to grant its riparian proprietors substantially the same use of the waters that is commonly accorded them today. Such seems to be the general conception of the law set forth in HalFs Mexican Law, pp. 411, 418. In Art. 1388, p. 411, it is said: “Waters which are not nor cannot be private property belong to the public. Such were the waters of the rivers which by themselves or by accession with others follow their courses to the sea. These may be navigable or not navigable. If they are navigable, nobody Southwestern Law Journal, Vol. IX, p. 11. Cureton was bom in Bosque County, attended the University of Virginia, practiced law at Meridian, Texas, and served in the Texas legislature and as assistant attorney gen­ eral and attorney general before being appointed Chief Justice of the Texas Supreme Court in 1921. He represented the state of Texas before the United States Supreme Court in the Red River boundary dispute. Walace Hawkins wrote of him that “his method was encyclopedic, his man­ ner of statement simple, and his conclusions were austere in positiveness.” He died in 1940. Nothing in his career suggests that he had any great fa­ miliarity with the irrigated portions of the state.— Texas Bar Journal, Vol. I l l (May, 1940), pp. 188-190, 194.


T h e Spanish E lem ent in Texas W ater Law

can avail himself of them so as to hinder or embarrass navigation; but if they are not, the owners of the land through which they pass may use the waters thereof for the utility of their farms or their in­ dustry,” etc. In Art. 1391, tlife writer says: “If running water passes between estates of different owners, each one of these can use it for the irrigation of his estate or for any other object, but not the whole of it, but only the part which corresponds to him, because both have equal rights, and the one can conse­ quently oppose the use of it all by the other, or even a part con­ siderably more than his own/’ 49 A fter examining the laws of the Republic and the state of Texas, Judge Cureton summarizes his conclusions as follows: On the whole, it seems obvious to us that under the grants made to colonists by Coahuila and Texas and Tamaulipas, acting under their own legislative acts and the decrees of the Central Mexican Government, there can be no doubt that riparian rights were not only recognized but granted upon consideration to the colonization grantees. . . . It is plain, we think, that all grantees of public lands become invested by reason of the lands granted, with riparian rights to the waters of the stream. On the whole, we think it proper to say that from the Mexican decree of 1823 down to the passage of our appropriation act in 1889, the fixed policy of this State, under all its several governments— that of Mexico, Coahuila and Texas, Tamau­ lipas, and the Republic and State of Texas, was to recognize the right of the riparian owner to use water, not only for his domestic and household use, but for irrigation as well. What we have thus far said has been predicated upon the history of the subject, and an interpretation of the laws, decrees, and acts involved. The construction, however, is in harmony with the de­ cisions of this court, which appear to us to have settled the question that riparian rights to the use of the waters of the streams of the State for irrigation purposes were a part of the grants of land when the grants were made.50 It is important to note that the opinion in M otl v. Boyd deals only with M exican and later legislation; it nowhere refers spe49 Motl v. Boyd, 116 Tex. 82 at 103-104. 50 Ibid., at 107-108.

Spanish W ater Law in Texas, 1 8 2 1 -1 9 5 8


cifically to Spanish grants. Since, however, the Mexican system was derived largely from the Spanish law and since Escriche is relied upon as authority, it is perhaps permissible to assume that the court would have held that the grants conveyed under Spain carried fundamentally the same rights in regard to water. T h e court does state that it is a settled question that “riparian rights to the use of the waters of the streams of the State for irrigation purposes were a part of the grants when the grants were made” ; there is no statement placing grants originating under Spain in a separate category. W hite and W ilson in their study of the case state that the court holds “ that the original grantees of all riparian lands in Texas prior to 1895, whether from Spain, Mexico, or Texas, acquired as a part of their grants, a vested property right to the use for irrigation of certain of the waters in the streams to which their lands were then riparian.” 51 According to M otl v. Boyd, the M exican— and by implication the Spanish— laws of water granted to the riparian proprietor full riparian rights, as known in 1926, including the right to irrigate. Can this conclusion be accepted as historically valid? T h e system of water law which developed in New Spain, as I tried to establish in Chapter IV, was characterized by these features: 1. A ll running waters belonged to the king and were declared to be common to all. 2. T h e officials of the Spanish government were directed to administer the waters so as to promote the general welfare. 3. Irrigation from public streams was permitted, but only with the permission of the government, acting for the king. 4. Generally speaking, irrigation was a community venture, regulated by the laws and customs of the acequia and ayuntamiento. 5. W hether lands were irrigable depended not on their ripar­ ian status but on the feasibility of getting the waters to the land. Neither Spanish practice nor Spanish law confined water use to riparian lands. 51 White and Wilson, “The Flow and Underflow of Motl v. Boyd,” Southwestern Law Journal, Vol. IX, p. 379*


T h e Spanish E lem ent in Texas W ater Law

There is little in this system consistent with the view that the riparian proprietor acquires a permanent vested property right to the use of the waters of a stream, including use for irrigation. It is pertinent to observe that the courts of N ew M exico and Arizona have reached different conclusions from those of the Texas court in M otl v. Boyd in regard to the Spanish law of waters. T h e N ew M exico court has held: Indeed, riparian ownership, as is known to the common law, has never, it would seem, been recognized in New Mexico. . . . By the Mexican law in force here at the time the United States acquired the territory, the use of the water of the streams was not limited to riparian lands, but extended to others, subject to regulation and control by the public authorities.52 In a case decided in 1888, the Supreme Court of Arizona stated: The right to appropriate and use water for irrigation has been rec­ ognized longer than history, and since earlier than tradition. Evi­ dences of it are to be found all over Arizona and New Mexico in the ancient canals of the prehistoric people, who once composed a dense and highly civilized population. . . . The native tribes . . . now, as they for generations have done, appropriate and use the waters of these streams, in husbandry, and sacredly recognize the rights ac­ quired by law and use, and no right of a riparian is thought of. The only right in water is found in the right to conduct the same through their canals to their fields, there to use the same in irrigation. The same was found to prevail in Mexico . . . at the time of the con­ quest, and remained undisturbed in the jurisprudence of that coun­ try until now. . . . The Spanish conquerors brought the same idea with them from Spain, where they prevailed then as now. Escriche, tit. “Agua,” Secs. Ill, IV, and “Acequia.” 53 In the Philippines, which were under Spanish rule for centuries, the “ common law of riparian rights never did exist,” according to Clesson S. Kinney. “ T h e law governing the right of those who owned lands upon the banks of streams or bodies of water 52 Hagerman Irrigation Co. v. McMurry, 16 N.M. 172. 53 Clough v. Wing, 2 Ariz. 371.

Spanish W ater Law in Texas, 1 8 2 1 - 1 9 5 8


was the civil law as modified by the Philippine C ivil Code. These lands were subject to certain easements which never were allowed under the common law of England governing riparian rights.” After the U nited States obtained the islands, Congress passed a measure providing that beneficial use should be the basis of water rights in the Philippines.54 If the weight of historical evidence seems to prove that the decision in M otl v. Boyd in regard to the nature of riparian rights in Texas is in error, how did the court arrive at its con­ clusion? As noted above, Judge Cureton relied largely on an analysis of the M exican laws classifying lands as de riego, de temporal, and de agostadero and on the selections from Escriche’s Diccionario translated in H all’s Mexican Law. Judge Cureton concluded, rightly, that the classification of lands as to the availability of water proved that the government was con­ cerned about water rights. But the system of classification was not based on whether the land was riparian but on whether it could actually be irrigated. It is clear that much of the irrigated land in Spanish and Mexican Texas was nonriparian, and it is equally clear that much riparian land was not in fact irrigable and was not classified as irrigable by the Spanish in making grants.55 As for the selections cited from Escriche, these are taken from Escriche’s comments on “waters that belong to the public,” and on small streams. T h e first-cited selection is part of Article 1388 of H a ll’s Mexican Law. T h e portion of this article which the court does not quote states that waters may be taken from pub­ lic rivers only if the common use is not prejudiced nor the perti­ nent laws, orders, or decrees violated. In other words, when A rticle 1388 is quoted in its entirety, it places definite lim ita­ tions on the rights of riparian proprietors and makes all wateruse subject to further orders, laws, and decrees.56 54 Kinney, Irrigation and Water Rights, Vol. IV, p. 3544. 55 See above, pp. 126-128. See also White and Wilson, “The Flow and Underflow of Motl v. Boyd/’ Southwestern Law Journal, Vol. IX, pp. 385398. 56 See Chap. Ill, p. 78-79, for the passages from Escriche.


T h e Spanish E lem ent in Texas W ater Law

T h e second passage cited from Escriche in M otl v. Boyd is taken from the rules which Escriche drew up to apply to waters not covered by the general law nor by local laws and customs.57 W hen one goes to Escriche and reads the entire text, he finds that these comments on small streams have a highly lim ited application. It is only when these paragraphs are taken out of context and, as W hite and W ilson say, “ freed from the lim ita­ tions and conditions imposed on them there, and applied broadly to all water courses in countries such as ours that they take on sweeping importance.” 58 Furthermore, their validity as a statement of the principles of Spanish water law has been seriously questioned.59 Despite the disclaimer of the ardent riparian advocates, it seems clearly established that the decision in M otl v. Boyd “ is wholly erroneous in its major conclusions on the origin, nature and extent of riparian rights affecting Texas lands.” 60 If the ruling in M otl v. Boyd is not accepted as having harmonized Texas statutes and decisions and setting at rest the questions involved, the courts still have before them this complicated and critical task.61

Spanish W a te r L a w in T e x a s in 1958 T h e court test to determine just what rights do attach to Spanish grants in Texas was begun in 1956. T h e criti­ cal shortage of water in the lower R io Grande Valley in that year led to instituting what will clearly be the most important litigation regarding water rights to be conducted in Texas so far. T h e litigation was initiated in State of Texas et al. v. H i­ dalgo County Water Control and Improvement District N o. 18 57 See Chap. Ill, p. 80, for these passages. 58 white and Wilson, “The Flow and Underflow of Motl v. Boyd,”

Southwestern Law Journal, Vol. IX, p. 415. 59 See Chap. Ill, pp. 80-83. 60 White and Wilson, “ The Flow and Underflow of Motl v. Boyd,” Southwestern Law Journal, Vol. IX, p. 426. 61 See ibid., pp. 425-433, for arguments as to why the ruling in Motl v. Boyd should not be held as binding on the courts.

Spanish W ater Laiv in Texas, 1 8 2 1 - 1 9 5 8


et al., pending in the Ninety-third District Court. In June, 1956, when the waters behind Falcon Dam had been so seriously de­ pleted that only fifty thousand acre-feet of United States water was available to Texas water-users, the Board of W ater Engi­ neers acted to secure a court order reserving the waters for do­ mestic, livestock, and municipal use. A hearing was held on June 29, 1956, and the court agreed to enter an order stopping all diversions for irrigation and appointing a water master to set up rules for diversions for m unicipal and livestock purposes. Later in 1956, the court was asked to take into custody all waters entering Falcon Reservoir and entering the R io Grande below Falcon and to make a complete adjudication of all water rights on the lower Rio Grande. Pleadings have been filed to bring all the lands below Fort Quitman into the adjudication, but the court has made no attempt to control diversions above Falcon Reservoir through the water master. T h e litigation involves the water rights attaching to more than 700,000 acres of irrigated land. Inevitably the question of what water rights were conveyed by Spain in the porciones and other grants in the lower Rio Grande Valley w ill finally be con­ sidered by the Texas courts. Furthermore, this w ill be the first time in Texas that the water rights along a major stream have been completely adjudicated. W hat the court w ill conclude concerning the nature of these water rights remains for the fu­ ture to tell. One can certainly sympathize with the court as it endeavors to fit the many doubtful situations which confront it “ into a scheme that moves in the direction of a realized sense of right,” to use M ax R adin’s definition of law.62 Besides all the complexities of the Spanish water law and its status in present Texas, the litigation involves the conflict between riparian pro­ prietors and appropriators, the rights of a variety of water dis­ tricts, competition for the lim ited supplies of water among ir­ rigators, industry, and municipalities, as well as questions arising out of the international nature of the Rio Grande and the treaties between the United States and Mexico governing the use of its waters. Because so many issues are involved in the 62 The Law and You, p. 159.


T h e Spanish E lem ent in Texas W ater Law

original case, a cross-action was filed in December, 1957* the effect of which is to separate from the main case the question of whether a riparian irrigation right exists as an appurtenance to Spanish and Mexican grants, T h e court has severed this cross­ action from the main suit, and the severed suit, State of Texas et al. v. Valmont Plantations et al., is set for trial in late 1958.63 If it is not possible to say what the court w ill decide in this litigation, it is possible to predict some of the arguments that w ill be presented to it concerning the nature of Spanish water rights. On the one extreme w ill be the views of the ardent ri­ parian advocates, whose position has been repeatedly defended by Harbert Davenport and J. T . Canales. T his position may be summarized by the following paragraphs: Owners of lands granted prior to January 20, 1840, under the laws of Spain and the Indies, were accorded rights to reasonable use of riparian waters for domestic purposes and to irrigate them, as an integral portion of their grants. These rights, by their very nature, extended to every part of the grant, and once acquired, were not lost by severing lands originally riparian from later ownership of the rivers’ banks. The Spanish law knew no counterpart of that con­ fiscatory rule of the English Common Law. Rights to the use of water, under the Spanish law, as under the Common Law, depended upon right of access to the waters of the stream; but the Spanish law recognized, as the English law did not, that this right of access could be maintained, as it often was, through servitudes and easements connecting subdivisions of the grant with the stream. The Spanish law preserved this right of access, regard­ less of contract. When a grant, originally riparian, “Is divided amongst several joint or common owners in a manner that the 63 State of Texas et al. v. Hidalgo County W.C.&I.D. No. 18 et al. File, Board of Water Engineers, Austin, Texas. State of Texas et al. v. Valmont Plantations et al., 93rd District Court, Hidalgo County, Texas, File No. B-20791. Judge W. R. Blalock of Mission is hearing these cases. Judge Blalock irrigates four lots in Mission which are part of a porcion, and he questioned whether this interest disqualified him in the litigation. In April, 1957, the Texas Supreme Court held that his interest was common with that of the public and too remote and speculative to disqualify him. Texas Water Report, April 18, 1957, p. 3.

Spanish W ater Law in Texas, 1 8 2 1 -1 9 5 8


portions assigned or sold to any of them . . . form other small prop­ erties not bounding on the stream/’64 It was only in these relatively minor particulars that the Spanish law of riparian ownership, under which lands were granted in Texas prior to January 20, 1840, differed from the Common Law of England, in effect from its adoption on that date until superseded, as to future grants, by the water appropriation statute of March 19, 1889.65

According to Davenport, in short, the Spanish law of waters was a full-fledged riparian system, similar to the English com­ mon law except that it permitted the maintenance of riparian rights in tracts subsequently cut off from the streams, so long as the right of access was maintained.66 As to the implications of the Spanish classification of land as de riego, de temporal, and de agostadero, Davenport and Ca­ nales write: It is clear from the recitals in the several Spanish grants on the lower Rio Grande, including the Actas de Visita General to Escandon’s Rio Grande towns, that the right to take water from the Rio 64 Ellipsis in original. 65 Harbert Davenport, “Riparian vs. Appropriative Rights: The Texas Experience,” Water Law Conferences, Proceedings, 7952-/95,/, p. 150. In the Davenport-Canales view “ there can be no reasonable difference of opinion but that Judge Cureton in Motl v. Boyd . . . has correctly stated the Law of Riparian Rights as applied to navigable, or ‘public’ rivers as it has been recognized, at Common Law, by the Spanish Law in America, and with special reference to the Rio Grande by the terms of the Treaty of Guadalupe Hidalgo, declaratory of existing law.”— Harbert Davenport and J. T . Canales, “The Texas Law of Flowing Waters with Special Refer­ ence to Irrigation from the Lower Rio Grande,” Baylor Law Review, Vol. VIII (Summer, 1956), p. 302. 66 Davenport relies on Escriche, the “Reglamentos General” of Lasso de la Vega, and the Partidas to establish his position. For the details of the argument, see Davenport, “ Riparian vs. Appropriative Rights,” Water Law Conferences, Proceedings, 1952-1954, pp. 149-155, and Davenport and Canales, “The Texas Law of Flowing Waters with Special Reference to Irrigation from the Lower Rio Grande,” Baylor Law Review, Vol. VIII, pp. 162-174. The accuracy of some of the translations appearing in this last work has been questioned by other authorities. See, for example, King, “ Some Irrigation Law Problems Peculiar to the Lower Rio Grande,” Water Law Conferences, Proceedings, 1952-1954, pp. 297-298.


T h e Spanish E lem ent in Texas W ater Law

Grande, and the San Juan river (navigable at Cam argo) “For any purpose needed to sustain life,” inclu din g irrigation, was a m atter of course. Irrigation was lim ited not by lack of right, bu t for want of means, available to the pioneer settlers, for d ivertin g w ater for irrigation, from the channel of the river at ordinary stages of its flow. By reason of this inability, grantees of lands on the low er R io G rande were lim ited to “ tem poral irrigation ” ; that is, irrigation available only at high stages of the river, w hen water for irrigating crops could be, for a time, diverted from the channel of the stream. T h is form of irrigation has been practiced, successfully, along the L ow er R io G rande continuously since the dates of the various grants.67

T h e authors point out, also, that the Crow n’s efforts to protect the public right of navigation against private uses of flowing waters, including irrigation, “ were directed to preservation of the water course, rather than to the use of the waters of the flowing stream.” Consequently, permanent dams or weirs which obstructed the channel were prohibited in navigable rivers, but “reasonable use of water for irrigation, where the diversion was accomplished without obstructing the channel of the river, was an integral portion of every riparian grant. Diversion of waters without obstructing the water course was not considered as affecting the navigability of the stream.” 68 Davenport and Canales not only maintain that the Spanish grants entitled riparian proprietors to the reasonable use of waters for irrigation, along with all other riparian rights, sim­ 67 Davenport and Canales, “The Texas Law of Flowing Waters,” Baylor Law Review, Vol. VIII, p. 154. 68 Ibid., p. 174. No authorities for this position are cited. It is illustrated by referring to the action of the Mexican government in 1904-1905, when it protested against the dams built on the upper Rio Grande but made only “formal objection” to diversions by pumps along the lower Rio Grande, such diversions not being regarded as affecting navigation. This contention is difficult to accept in the light of the principle, as stated in Escriche (“Agua” ) that “nobody can avail himself of them [public navigable waters] so as to hinder or embarrass navigation . . .” Further, it conflicts with the principle stated in Avendano’s Thesaurus Indicus that “ no one can take public waters upon his private grounds for irrigation without Royal permission . . .”— Galvan Rivera, Ordenazas de Tierras y Aguas, p. 157.

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ply by virtue of the grant, but they contend that the R elin­ quishment Act of 1852 vested in the holders of Spanish grants all rights to w hich they were entitled, as rip arian owners, under the English Com m on Law , and confirmed all rights to w hich they were entitled under the laws, usages and customs in effect when their Spanish grants were made. W here rights accorded by the Spanish L aw were more favorable to the riparian prop rietor than they w ould have been at Com m on Law, the Spanish L aw prevails. A d op tion of the Com m on L aw by the R ep ub lic of T ex a s could not, and did not, im pair or dim inish rights that had vested under the Spanish Law. T h e State of T exas could, of course, extend such rights at w ill.69

Furthermore, the argument runs, the Republic of Texas in adopting the English common law in 1840, without reservation as to the laws under which grants of land were made by the state of Tam aulipas in the area south of the Nueces, “ released to Tam aulipas grantees, or their successors in title, all rights which Texas, as the succeeding sovereign, might have claimed under former laws of Tamaulipas, which were derogatory to the Common Law .” 70 T h e Davenport-Canales position may be summarized as fol­ lows: 1. Spanish grants conveyed full riparian rights to the grantees, including the right to irrigate. Such rights are vested prop­ erty rights which can be alienated only by condemnation. Non-use of the right has no bearing on its existence. 2. These riparian rights were not lost by the subdivision of the tracts so long as a right of access to the stream was main­ tained. 3. T h e classification of lands as de riego, de temporal, de agostadero did not restrict water use, but only reflected 69 Davenport and Canales, “The Texas Law of Flowing Waters/' Baylor Law Review, Vol. VIII, pp. 155. 70 Ibid., p. 156. Under this construction of the adoption of the common law in 1840 and the Relinquishment Act of 1859, the holder of a tract of land originating in a Spanish grant would seem free to claim the greatest advantages offered by both the Spanish law and the English law.


T h e Spanish E lem ent in Texas W ater Law

existing conditions. If the holder of de temporal land could secure water to irrigate from the river, he was entitled to do so. 4. T h e entire porcion or grant originally riparian is, there­ fore, entitled to be irrigated to the extent that irrigation is feasible. 5. By the adoption of the common law in 1840 and the R e­ linquishment A ct of 1852, the holders of lands deriving from Spanish grants secured all the benefits of the English common law, as well as retaining the advantages of the Spanish law. Another point of view concerning the nature of the water rights appurtenant to the Spanish grants has been advanced by N eal King, an attorney of Mission, Texas. In a paper presented to the 1954 W ater Law Conference at the University of Texas School of Law, K ing held that 1. Under Spanish law the waters of a public river were sub­ ject to appropriation for irrigation of either riparian or nonriparian lands, but only with the consent of the sover­ eign and only if navigation was not impeded. 2. T h e right to use waters from public rivers for irrigation could be acquired only by a specific grant from the royal patrimony. 3. T o determine how much of the land of each grant was in­ tended to be irrigated, “ one must look to the terms of the several grants, to the decrees under which they were made, and to the physical situation as the Spaniards found and decreed them to be. . . .” 71 Lands classified as de agostadero were intended to be pasture lands, and the proceedings by which they were adjudicated also adjudicated their nonirrigability. For these lands, “ there is no express grant of a right of irrigation, which is stated by the Regulations of 1761 to be a sine qua non of a right of irrigation.,,72 Lands 71 King, “Some Irrigation Law Problems Peculiar to the Lower R io Grande,” W ater Law Conferences, Proceedings, 1952-1954, p. 304. 72 Ibid., p. 303.

Spanish W ater Law in Texas, 1 8 2 1 - 1 9 5 8


classified as caballeria were to be planted, and irrigation rights were intended for these lands. In short, the Spanish grants along the Rio Grande conveyed the right to irrigate only to the caballerias and not to the entire porcion or grant abutting on the Rio Grande. 4. T h e Relinquishm ent Act of 1852 was merely a quit claim by which the state recognized the titles already granted. It did not undertake to change the nature of the title. T o hold that the Relinquishm ent A ct changed the nature of the rights attaching to the lands is to deny the rule that a grant must be construed to mean what the sovereign making the grant intended it to mean.73 A third position on the nature of Spanish water rights and their status in present Texas is that of W hite and Wilson. From an intensive study of Spanish laws, Spanish grants in Texas, Spanish irrigation practices, and the irrigation laws enacted by the state of Texas, they conclude: 1. Under the system of water rights in N ew Spain, “ the ripar­ ian had a position of substantial value including the valu­ able rights of accretion, avulsion, and probably to the use of riparian waters for domestic purposes. His location also gave him a valuable advantage of access to the watercourse for the purpose of fishing, navigating, running a mill, and even for irrigating his farm. T here is no persuasive au­ thority or practice, however, to support the position that he had a vested property right to the waters of adjoining streams for irrigation, independent of established and rec­ ognized use, superior to that of anyone else who could legally obtain access thereto, or superior to the power of the state to give such access and to regulate the distribution of 73 King notes that some attorneys take the view that by the adoption of the common law in 1840 and the Relinquishment Act of 1852, “ the law controlling the extent of the riparian rights of these grants became a mo­ saic of those doctrines of the Spanish law and of those of the common law which would, when blended, furthest extend the right of irrigation. This fielder’s choice doctrine is supported only by the ipse dixit of its utter­ ance/'— Ibid., p. 304. For King’s authorities, see ibid., pp. 294-306.


T h e Spanish E lem ent in Texas W ater Law

its public waters as it concluded in the public interest.” 74 2. T h e superior power of the state to regulate the distribution of waters and the concomitant limitations on riparian grants continued automatically after 1840 75 3. Consequently, “ so long as T exas respects the riparian’s right to waters for domestic use and perfected appropriative rights, there is nothing the State of Texas cannot constitu­ tionally do with respect to the distribution of all the waters of its streams so long as the action taken bears a reasonable relationship to the efficient and beneficial use of such waters.” 76 T h is study of W hite and W ilson suggests that a re-examination and rediscovery of the Spanish elements in Texas water law may provide the means for reconciling many of the out­ standing conflicts between riparian proprietors and appropriators. For they hold that the state of Texas inherited from the Spanish a system of lim ited and qualified riparian rights. And, they state: If the conclusions herein reached are correct concerning the quali­ fied nature of the riparian’s rights, and the inherited power of the state government over the water of its streams, the state has the right to declare its waters public subject only to perfected appro­ priations and the rights of riparians to water for domestic use.77 Defining and lim iting the unqualified rights of riparian pro74 White and Wilson, “The Flow and Underflow of Motl v. Boyd,” Southwestern Law Journal, Vol. IX, p. 431. 75 See ibid., p. 421, for authorities. 76 Ibid., p. 425. 77 Ibid. White and Wilson take the position that the adoption of the common law in 1840 did not mean that the full riparian system was in­ corporated into Texas law, since the Texas courts have consistently fol­ lowed the rule that only so much of the English common law as was con­ sistent with Texas institutions was applicable. The irrigation act of 1852 continued the basic laws regarding irrigation existing before 1840. Conse­ quently, White and Wilson hold, “what could be more reasonable and proper than for our Texas courts independently, or in construing a statute to hold that the law of riparian rights on irrigation were the same between 1840 and 1852, as they were prior to 1840, and as our early legislature in­ dicated them to be after 1852?”— Ibid., p. 424.

Spanish W ater Law in Texas, 1 8 2 1 - 1 9 5 8


prietors, long urged by advocates of water law reform, would do much to solve the problem of unused riparian rights and make it possible to establish water rights with certainty for the first time in Texas.78 T h e contrasts between the conclusions of Davenport and Canales, on the one hand, and W hite and Wilson, on the other, are striking. T h e end result of the Davenport and Canales posi­ tion would seem to be to extend riparian rights even beyond those of the English common law and to eliminate the Spanish system of water law almost entirely. T h ey justify this by the interpretation placed on the adoption of the common law in 1840 and on the Relinquishment Act of 1852. In the view of W hite and Wilson, the riparian system as known in England and the eastern United States has never been the law in Texas. Texas has retained the powers over the administration of its waters acquired from Spain. So long as it respects the riparian proprietor’s rights to water for domestic use, which was part of the Spanish as well as the English law, and vested rights of appropriators, it is free to act to regulate use of its waters. T h e first view gives almost maximum scope to private-property in­ terests in water; the second emphasizes the public interest and the role of government in administering water. T h e court in deciding what course to follow must consider not just these two positions and the others presented to it. It must weigh not only the historical evidence and the legal argu­ ments. For, as a matter of actual fact, thousands of acres of land are already being irrigated under the assumption that the entire area of each Spanish grant is entitled to riparian rights. T h e court's task is a difficult one. T h e entire state w ill be vitally affected by the decision it reaches. T h at decision could help to 78 A. W. Rollins, “The Need for a Water Inventory in Texas,” Water Law Conferences, Proceedings, 1952-1954, pp. 67-69; Carter, “The Posi­ tion of the Board of Water Engineers on the Scope of Riparian Rights,” ibid., pp. 194-205; Guy C. Jackson, Jr., “The Texas Water Problem,” ibid., pp. 103-105. California, which also has a dual system of water rights, limited riparian rights by constitutional amendment in 1928 to reasonable, beneficial use, present and prospective, against an appropriator.— See Wells A. Hutchins, The California Law of Water Rights, pp. 40-67.


T h e Spanish E lem ent in Texas W ater Law

eliminate some of the intolerable conflicts and confusion in Texas water law. It seems clear that whatever else may be true of Texas water law, the Hispanic-American laws in which it originated continue as a living and significant element. Some two centuries after the first grants were made by representatives of the king of Spain along the R io Grande, the courts of Texas are engaged in the attempt to discover what water rights were conveyed by those grants. T h e story of Spanish water laws in Texas thus reaches its clim ax not in the days of Spain’s own glory but in a time when the question of what institutions Texas frames to utilize its waters is the critical problem before the state. T here is much of drama and irony in the story. T h e Spanish laws and institu­ tions, like a piece of antiquated furniture, seemed to have been pushed aside and forgotten in the decades when the courts turned to the black-letter learning of the English common law and found in its doctrine of riparian rights their principal guide in water law matters. But, even in these decades, the Spanish heritage was shaping water-use institutions in those parts of Texas where irrigation continued in the Spanish manner with little interruption. A nd this Spanish heritage was the basis of the irrigation act of 1852, thus undergirding T exas’ statutory irrigation law. As “ artificial” uses of water expanded with the settlement of the arid and semiarid regions of Texas and with technological advances, like the development of huge pumps along the R io Grande, water law conflicts became more serious and water law cases more frequent. T h e courts at last directed their inquiries to the Spanish-Mexican past, only to misread and misunderstand it. In the 1950’s the pressures created by the T exas water problem have brought a new inquiry into the nature of Hispanic-American institutions, in the course of which many of the misconceptions and misinterpretations which had grown up are being destroyed and the Spanish system redis­ covered. T his system had among its chief characteristics: 1. It was based on an irrigation-centered agriculture. It was designed to facilitate the best possible use of lim ited sup­ plies of water.

Spanish W ater Law in Texas, 1 8 2 1 - 1 9 5 8


2. It was the outgrowth of centuries of experience in arid lands— Spain, Africa, the arid heart of North America. 3. It was to a great extent a system of communal use of water. 4. It was an administered system rather than one centered around vested property rights. Once a right was established, however, it was generally protected so long as the water was put to beneficial use. 5. It was actively concerned with the administration of waters and the development of water resources. It did not take water use for granted, nor did it allow water policy to de­ velop simply as a by-product of land law. T h is stone which the builders rejected might well prove an important part of the foundation of a unified and workable system of water law in Texas. This is not to suggest that Texas return to its Spanish past and simply reproduce Spanish institu­ tions, though it is possible that some noteworthy features of the Spanish system could be readily adopted to Texas' immediate needs. A special water court might be established, for example, which could draw upon the centuries of experience of the T r i­ bunal of Waters of Valencia in settling conflicts. But the greatest legacy from the Spanish past is the mind-set which does not take water for granted but is actively and constantly concerned with its wise utilization. If Texas is to solve its water problem and its water law problems, such an outlook must be developed through­ out the state. T o o long, thinking has been that of the humid areas, which take an abundance of water for granted, regard it often as a potential enemy, or regard it not at all. T h e system of riparian rights, for example, is primarily concerned with pro­ tecting the owner of land from trespass upon his rights. W hile the protection of individual property rights is a matter of grave import in a society, it seems clear that a system of water law based on the principle that “ water runs and ought to run as it was wont to run,” and whose core is the protection of landed property rights has grievous limitations among a water-short people. It provides no guidance or direction for the develop­ ment of new sources and often effectively blocks such develop­ ment.


T h e Spanish E lem ent in Texas W ater Law

In most of Texas today— whether arid or humid— water is no longer free, but a manufactured good. Thousands of dollars are invested in the capital goods— dams, reservoirs, purifying plants, pum ping works, pipe lines— which make it available to users. A m ultiplicity of institutions— municipal water works, water improvement districts, river authorities, the State Board of W ater Engineers, the federal Bureau of Reclamation, the Soil Conservation Service, the U nited States Arm y Engineers— are concerned with the direction and operation of these physical works. In short, water is not free, nor can Texas rely on nature, unaided, to provide it. Like the Spaniard, the T exan must give his best thought and best action to create and maintain efficient and effective institutions to provide and administer water. T h e great need in Texas is for a system of water law and adminis­ tration which w ill maintain individual rights and sufficient flexibility to encourage growth, while providing efficient ad­ ministration of water and just solutions to conflicts. It seems clear that the future w ill bring increasing public controls over water use, as demands for water continue to rise. Laissez faire in water law was a workable policy so long as supplies were abun­ dant enough that every man could appropriate sufficient water for his own needs and so long as technology was simple enough that he could master the requisite contrivances. T h at day seems to be gone in most of the Western world. T h e prospect is, con­ sequently, that individual appropriation of water— under either the riparian system or that of prior appropriation— w ill be re­ placed by some system of administered water rights. T h e ques­ tion is not whether there shall be controls over water use, but how intelligent and efficient and democratic those institutions of control shall be. Texas could do far worse in attempting to create institutions adequate to its needs than to draw upon its Spanish institutional heritage, with its inbred respect for water.

VI. Rulings on Spanish Grants in Texas v. Valmont Plantations I therefore conclude that when the government of Spain made the original grants of land in question in this case, that such grants did not, as an appurtenance thereto, carry with them a right of irrigation upon the lands involved. Ju d g e

W. R . B l a l o c k ,

State of Texas et al. vs. Valmont Plantations et al.

J u d g e B la lo c k

handed down his opinion in State

of Texas et al. v. Valmont Plantations et al. in May, 1959, though the formal judgment of the court was not entered at that date. T h e opinion is some eighty pages in length, and ap­ proximately a third of it is devoted to the question of whether the Spanish grants gave riparian owners a right to irrigate as an appurtenance to the grant. T h e plaintiffs in the Valmont case contended that there was no riparian right to irrigate appurte­ nant to the Spanish grants; the defendants contended that all Spanish grants abutting on the R io Grande, and some not abutting, carried the riparian right to irrigate. T h e defendants contended further that the right to irrigate exists because of Texas’ adoption of the common law in 1840, the patenting of lands by the State of Texas, and by previous Texas decisions, including M o tl v. Boyd. T h e plaintiffs argued that the adoption of the common law by Texas in 1840 did not extend riparian rights to irrigate land abutting upon streams such as the Rio Grande and that the patenting of lands by the state did not extend such a right. In his opinion, Judge Blalock holds that no previous Texas case— including M o tl v. Boyd, which dealt with Mexican but


T h e Spanish E lem ent in Texas W ater Law

not Spanish grants— had settled the question of what the Spanish law provided concerning the right of riparian owners to irrigate. H e then undertakes to decide the question and examines in some detail the features of Spanish water law at the time the grants were made. He concludes that under Spanish law (1) the water of the R io Grande was the property of the king; (2) its common use was available to all men for ordinary purposes; (3) its use for special purposes, such as irrigating or operating a m ill, was possible only with a permit from the Crown; (4) offi­ cials of the Crown examined lands when grants were made to see whether the lands were susceptible of irrigation; and (5) the lands in question in the case were held to be unfitted for irriga­ tion. Consequently, the Judge holds, “ I therefore conclude that when the government of Spain made the original grants of land in question in this case, that such grants did not, as an appurte­ nance thereto, carry with them a right of irrigation upon the lands involved/’ 1 In reaching these conclusions regarding the Spanish system of water law, Judge Blalock relies to a consider­ able extent on the provisions of the “ Reglamento General de las Medidas de Aguas” of Lasso de la Vega, provisions of the Recopilacion relating to grants of lands and waters, the Actas de Visita General of 1767, and the expert opinion of Lie. Santi­ ago Onate. T h e Judge notes also that the Spanish documents .refer to “ lands and waters” not simply “ land” and regards this as evidence that Spanish law dealt with water and land sepa­ rately, and did not consider water an appurtenance to the land. He calls attention to the fact that investigation of lands for irri­ gation possibilities was not confined to riparian lands. Escriche’s rules, dictated by “ equity and the interests of agriculture” and to be followed when there was no applicable law, the Judge re­ gards as of no bearing in the case because there were rules of law in effect when the grants were made. Judge Blalock has found, then, in this first Texas case specifi­ cally dealing with the question of the water rights attaching to 1 State of Texas et al. vs. Valmont Plantations et al. No. B-20791, District Court of Hidalgo County, Texas, for the 93rd Judicial District of Texas. Opinion of the Trial Court, p. 30.

R ulings on Spanish Grants


Spanish grants that such grants did not carry a riparian right of irrigation as an appurtenance to the land. But the Judge goes ahead in the opinion to hold that lands abutting the Rio Grande do have a riparian right of irrigation. This right stems not from the Spanish grants but from the fact that the Texas courts have in the past consistently held that lands abutting on a stream such as the R io Grande have a riparian right of irrigation. T h e trial court, Judge Blalock states, is obligated to abide by the doctrine of stare decisis and he holds, therefore, that “a riparian right to irrigate does attach to all lands abutting upon the Rio Grande River, regardless of whatever reasons may be assigned for such decisions.” 2 If previous Texas decisions have been in error, then it is, according to Judge Blalock, the province of the Supreme Court, not the trial court, to correct those errors. Other points in the decision which touch upon the Spanish lands include the holding that to have riparian rights land must be within the watershed of the stream. Much of the land which has been irrigated in the Rio Grande Valley lies outside the R io Grande’s watershed, and this ruling would deny lands in Cameron, Willacy, and most of Hidalgo counties any claim to riparian waters for irrigation. Judge Blalock finds that no clear pronouncement has ever been made in Texas regarding the question of whether the partitioning or subdivision of tracts originally riparian to the river destroyed the riparian rights attaching to the severed lands. In the absence of any ruling on the question a great deal of land in this category has been de­ veloped and is being irrigated, and Judge Blalock holds that it would be inequitable for the trial court to rule that these lands were not entitled to riparian rights at this late date. He rules, therefore, that these interior tracts retain their riparian rights.3 T h e opinion deals with other important aspects of Texas water law but the above rulings are the chief ones which touch upon the Spanish background of the case. Since the decision in

State of Texas et al. v. Valm ont Plantations et al. is certain to be appealed, it is impossible to say what the final holdings re2 Ibid., p. 34. 3 Ibid., p. 51.


T h e Spanish E lem ent in Texas W ater Law

garding the Spanish element in Texas water law w ill be. In his opinion Judge Blalock repeatedly calls attention to questions where the trial court could only follow stare decisis, leaving to the appellate courts the possibility of correcting errors that may have occurred in past decisions, and it is entirely possible that the appellate courts w ill reverse some of the holdings of the trial court. T h e decision of the trial court in dealing directly with the Spanish background of Texas water law has helped to eluci­ date the past and it should provide useful guides for the future. W hile much conflict and controversy remain in Texas water law, the prospects are good that there w ill be less confusion as a result of this case.

Bibliography o t e .— The Bibliography is arranged by topic. The major divisions include works on (/) water, (2) water law, (3) history, (4) law, and (5) a list of the cases cited. Under each category except that of law, the Texas items are listed separately from the general ones. The section on Texas history lists the manuscript sources and printed works separately. Works of special signifi­ cance or value are marked with an asterisk.


I. W orks on W ater T


Baker, Riley E. “Water Development as an Important Factor in the Utilization of the High Plains of Texas,” Southwestern Social Science Quarterly, Vol. 34 (September, 1953), PP* 21_34Broadhurst, W. L. “ Ground-Water Hydrology,” in University of Texas, School of Law, Water Law Conferences, Proceedings, 1952l 954>PPEnright, Robert J. “West Texas Needs Water,” Oil and Gas Jour­ nal, Vol. 54 (November 26, 1956), pp. 50-51. Jackson, Guy C., Jr. “The Texas Water Problem,” in University of Texas, School of Law, Water Law Conferences, Proceedings, 1952J954> PP- 103-105. Jessen, Frank W. “Industrial Water— Uses and Needs in Texas,” in University of Texas, School of Law, Water Law Conferences, Pro­ ceedings, 1952-1954, pp. 70-78. Johnson, Corwin W. “The Water Problems of Texas: A Summary,” in Public Affairs Comment, Vol. I, No. 4 (July, 1955). University of Texas, Institute of Public Affairs. Lowry, Robert L., Jr. Excessive Rainfall in Texas. Texas Reclama­ tion Department Bulletin No. 25, November, 1934. Rollins, A. W. “The Need for a Water Inventory in Texas,” in Uni­ versity of Texas, School of Law, Water Law Conferences, Pro­ ceedings, 1952-1954, pp. 67-69. Southwest Texas State College. Summary of Conference on Texas Water Problems and Possible Solutions (San Marcos, Texas, July


T h e Spanish E lem ent in Texas W ater Law

20, 1954). Southwest Texas State College, Bulletin XX, No. 4, December, 1954. Texas. Board of Water Engineers. Report. 1913/1914----- . Austin, Board of Water Engineers. (Issued biennially since 1913/14.) -------- . Board of Water Engineers. Rules, Regulations, and Modes of Procedure. 1955 revision. Austin, Board of Water Engineers, 1955- (Processed.) — . Bureau of Sanitary Engineering. Water Quality in Texas: Past, Present, Future. [Austin?], Texas State Department of Health [1950]. — . Governor’s Committee on Water Conservation. Report. Austin, 1953. ------- . University of Texas, Bureau of Business Research. Water Requirements Survey: A Study of Resource Utilization, Indus­ trial Development Potentials, Population Growth, and Water Use. Austin, University of Texas, 1949-1953. (Processed.) 4 vols. Texas Legislative Council. Inventory of Water Problems and Agen­ cies in Texas. Austin, Texas Legislative Council, 1952. (Mimeo­ graphed.) Texas Society of Professional Engineers. Water! A Plain Statement of Some of the Problems Involved in the Development of Texas Water Resources, with Some Recommendations for Their Solu­ tion. Austin, Texas Society of Professional Engineers [1954]. Texas Water. Official publication of the Texas Water Conservation Association. Austin. Published irregularly up to January, 1951; published monthly after that date. Texas Water Conservation Association. Water for Texas: Your No. 1 Problem. Austin, Texas Water Conservation Association [1956]. Texas Water Report. A factual weekly newsletter on Texas water and soil conservation, ed. Stuart Long. Drawer O, Capitol Station, Austin. Vol. 1—— . October 29, 1953----- . Torrey, Paul D. “Needs and Uses of Water in the Production of Oil," Petroleum Engineer, Vol. X X IX (January, 1957), B-83-B-98. Twichell, Trigg. “Interrelation of Surface and Ground Water of Texas,” in University of Texas, School of Law, Water Law Con­ ferences, Proceedings, 1952-1954, pp. 30-37. #United States Department of the Interior. Bureau of Reclamation, Austin Area Planning Office. Water Supply and the Texas Econ­ omy: An Appraisal of the Texas Water Problem (reprinted in Washington as Sen. Doc. 57, 83d Cong., 1st sess. [1953]). Washing­ ton, Government Printing Office, 1953. -------- . Bureau of Reclamation. Elements of the Texas Water Prob­ lem: The Background and Basis of a Solution to the Problem of



Water Supply in Texas. [Austin?], Bureau of Reclamation, 1957. (Processed.) * Webb, Walter Prescott. More Water for Texas: The Problem and the Plan. Austin, University of Texas Press, 1954. White, Walter N. “Summary Report on the Survey of the Under­ ground Waters of Texas.” [Austin], 1935. (Mimeographed.) G eneral

Baker, Donald M., and Harold Conkling. Water Supply and Utili­ zation: An Outline of Hydrology from the Viewpoint of the Arid Section of the United States together with an Outline of Water Law and Its Administration as It Has Developed in the Arid States. New York, John Wiley & Sons, Inc., 1930. Baker, M. N. The Quest for Pure Water. New York, American Water Works Association, Inc., 1949. Blake, Nelson Manfred. Water for the Cities: A History of the Ur­ ban Water Supply Problem in the United States. Syracuse, Syra­ cuse University Press, 1956. Brittain, Robert. Let There Be Bread. New York, Simon and Schus­ ter, Inc., 1952. Garhart, Arthur H. Water— or Your Life. Philadelphia, J. B. Lippincott Company, 1951. Collis, John Stewart. The Moving Waters. New York, William Sloane Associates, Inc., 1955. Dewhurst, J. Frederick, and Associates. America's Needs and Re­ sources: A New Survey. New York, The Twentieth Century Fund,


Fleming, Roscoe. “The Problem of Water: Increasing Demands on a Vital United States Resource Call for a New National Policy,” in Walter Yust (ed.), Britannica Book of the Year, 1957. Chicago, Encyclopedia Britannica Inc., 1957. Pp. 1-32. Forbes, R. J. Man the Maker: A History of Technology and Engi­ neering. New York, Henry Schuman, Inc., Publishers, 1950. Frank, Bernard, and Anthony Netboy. Water, Land, and People. New York, Alfred A. Knopf, Inc., 1950. Huffman, Roy E. Irrigation Development and Public Water Policy. New York, The Ronald Press Company, 1953. King, Thomson. Water, Miracle of Nature. New York, The Mac­ millan Company, 1953. Kohler, Karl O., Jr. “Trends in the Utilization of Water,” in U.S. Department of Agriculture, Water: The Yearbook of Agriculturey x955• Washington, Government Printing Office, 1952. Pp. 35-40.


T h e Spanish E lem ent in Texas W ater Law

#Kuenen, P. H. Realms of Water: Some Aspects of Its Cycle in Na­ ture. New York, John Wiley & Sons, Inc. [1955]. Nadeau, Remi A. The Water Seekers. Garden City, Doubleday 8c Company, Inc., 1950. Newell, Frederick Haynes. Water Resources: Present and Future Uses. New Haven, Yale University Press, 1920. New York Times. “Water Shortage Threatens Nation's Dream of Unlimited Expansion, Survey Finds.,, March 3, 1957. P. 104. Ostrom, Vincent. Water and Politics: A Study of Water Policies and Administration in the Development of Los Angeles. Los Angeles, The Haynes Foundation, 1953. Pryor, William Clayton, and Helen Sloman Pryor. Water— Wealth or Waste. New York, Harcourt, Brace and Company, Inc., 1939. Robins, F. W. The Story of Water Supply. London, Oxford Univer­ sity Press, 1946. State Administration of Water Resources. Chicago, The Council of State Government, 1957. (Processed.) Tannehill, Ivan Ray. Drought: Its Causes and Effects. Princeton, Princeton University Press, 1947. Thomas, William L., Jr. (ed.). Man's Role in Changing the Face of the Earth. Chicago, University of Chicago Press, 1956. United States Commission on Organization of the Executive Branch of the Government. Water Resources and Power: A Report to the Congress. Washington, Government Printing Office, 1955. 2 vols. in 1. #United States Department of Agriculture. Water: The Yearbook of Agriculture, 1955. Washington, Government Printing Office, *955United States President’s Materials Policy Commission. Resources for Freedom. Washington, Government Printing Office, 1952. 5 vols. United States President’s Water Resources Policy Commission. A Water Policy for the American People. Washington, Government Printing Office, 1950. 3 vols. Van Hise, Charles Richard. The Conservation of Natural Resources in the United States. New York, The Macmillan Company, 1923. Williams, Albert N. The Water and the Power: Development of the Five Great Rivers of the West. New York, Duell, Sloan 8c Pearce, Inc., 1951. * Wittfogel, Karl A. “The Hydraulic Civilizations,” in William L. Thomas, Jr. (ed.), Man's Role in Changing the Face of the Earth. Chicago, University of Chicago Press, 1956. Pp. 152-164.



--------- . Oriental Despotism : A Comparative Study of T ota l Power.

New Haven, Yale University Press, 1957. Zimmermann, Erich W. “What We Mean by Resources/’ in Texas Looks A head , Vol. I: T h e Resources of Texas . Austin, University of Texas Press, 1944. Pp. 1-16. --------- . W orld Resources and Industries: A Functional Appraisal of the Availability of Agricultural and Industrial Materials. Rev. ed. New York, Harper 8c Brothers, Publishers, 1951. II. W orks on W ater L aw T


Beckwith, H. A. “Irrigation Water Rights in Texas.” Paper pre­ sented at the spring meeting of the American Society of Civil En­ gineers, Houston, Texas, February 20-23, 1951. (Mimeographed.) Bouldin, Victor M. “The Law of Surface Water Rights in Texas,” in University of Texas, School of Law, Water Law Conferences, Proceedings, 1952-1954, pp. 96-102. Carter, Joe D. “The Position of the Board of Water Engineers on the Scope of Riparian Rights,” in University of Texas, School of Law, Water Law Conferences, Proceedings, 1952-1954, pp. 194205. Cox, F. Joyce. “The Texas Board of Water Engineers,” Texas Law R eview , Vol. VII (December, 1928), pp. 86-102; Vol. VII (Feb­ ruary, 1929), pp. 245-257; Vol. VIII (February, 1930), pp. 238248. #Davenport, Harbert. “Development of the Texas Law of Waters,” in Vernon's Annotated Revised C ivil Statutes of the State of Texas, Vol. XXI, pp. xiii-xxxix. Kansas City, Mo., Vernon Law Book Company, 1925----- . 22 vols. # 0 “Riparian vs. Appropriative Rights: The Texas Experi­ ence,” in University of Texas, School of Law, Water Law Confer­ ences, Proceedings, 1952-1954, pp. 138-168. #Davenport, Harbert, and J. T . Canales. T h e Texas Law of Flow ­ ing Waters with Special R eference to Irrigation from the Low er R io Grande. [Brownsville, privately printed, 1949?]

# . “The Texas Law of Flowing Waters with Special Refer­ ence to Irrigation from the Lower Rio Grande,” Baylor Law R e ­ view, Vol. VIII (Spring, 1956), pp. 138-184 (Summer, 1956), pp. 283-319. (A revised version, bringing up to date the 1949 edition.) Hildebrand, Ira P. “The Rights of Riparian Owners at Common Law in Texas,” Texas Law Review , Vol. VI (December, 1927), PP- i 9~49-

T h e Spanish E lem ent in Texas W ater Law


Johnson, Corwin W. “Riparian Rights from the Appropriator's Viewpoint,” in University of Texas, School of Law, Water Law Conferences, Proceedings, 1952-1954, pp. 188-193. -------- (comp.). Cases and M aterials on Texas W ater Law . Austin, Hemphill’s Book Stores, 1949. (Processed.) *King, Neal. “Some Irrigation Law Problems Peculiar to the Lower Rio Grande,” in University of Texas, School of Law, Water Law Conferences, Proceedings , 1952-1954 , pp. 294-307. Lewis, Yancey. “The Rights of Riparian Owners in the Matter of Irrigation,” in Texas Bar Association, Proceedings, Twentieth Annual Session. Austin, printed by order of the Association, 1901. Pp. 96-112. Sturrock, J. E. “Discussion on Legislative Problems in the Field of Riparian and Appropriative Rights,” in University of Texas, School of Law, Water Law Conferences, Proceedings, 1952-1954, pp. 242-247. #University of Texas, School of Law. Water Law Conferences. P ro­ ceedings, 1952------ . Austin, School of Law, 1952------ . (None is­ sued for 1953.) *White, A. A. “The Flow and Underflow of Motl v. Boyd,” in Uni­ versity of Texas, School of Law, Water Law Conferences, Proceedings, 1955, pp. 44-60. # , and W ill Wilson. “The Flow and Underflow of Motl v. Boyd,” in Southwestern Law Journal, Vol. IX (Winter, 1955), pp. 1-26, (Fall, 1955), pp. 377 - 433 #Wilson, Will. “A Reappraisal of Motl v. Boyd,” in University of Texas, School of Law, Water Law Conferences, Proceedings, 1955,

PP- 38~43-

G eneral

Angell, Joseph K. A Treatise on the Law of Watercourses with an A p p en d ix containing Statutes of Flowing, and Forms of Declara­ tion. 6th ed. Rev. and enl. J. C. Perkins. Boston, Little, Brown and

Company, 1869. Caponera, Dante A. Water Laws in Italy, f a o Development Paper No. 22. Rome, Food and Agriculture Organization of the United Nations, 1953. --------- . Water Laws in M oslem Countries, f a o Development Paper No. 43, Agriculture. Rome, Food and Agriculture Organization of the United Nations, 1954. (Lithoprinted.) Grimes, Marcene. Governm ent and N atural Resources in Kansas:



Water. Lawrence, Kansas, University of Kansas Governmental Re­ search Center [1957]. #HalI, William Hamilton. Irrigation Development: History, Cus­ toms, Laws, and Administrative Systems Relating to Irrigation, Water-Courses, and Waters in France, Italy, and Spain. The Intro­ ductory Part of the Report of the State Engineer of California on Irrigation and the Irrigation Question. Sacramento, State Office of Printing, 1886. Hutchins, Wells A. The California Law of Water Rights. Sacra­ mento, State of California Printing Division, 1956. * . “A Comparison of Riparian and Appropriative Rights,” U.S. Department of Agriculture, Agricultural Research Service. Paper presented at meeting of Southwestern Social Science Asso­ ciation, Dallas, Texas, April 8-9, 1955. (Processed.) * # “History of the Conflict between Riparian and Appropri­ ative Rights in the Western States,” in University of Texas, School of Law, Water Law Conferences, Proceedings, 1952-1954, pp. 106137-------- . “Outline of Water Law Doctrines in the Seventeen Western States.” Prepared for use by Department personnel engaged in ad­ ministration of the Water Facilities Program of the U.S. Depart­ ment of Agriculture. U.S. Department of Agriculture, Soil Con­ servation Service. Washington, U.S. Department of Agriculture, 1941. (Mimeographed.) # . Selected Problems in the Law of Water Rights in the West. U.S. Department of Agriculture, Miscellaneous Publication No. 418. Washington, Government Printing Office, 1942. #Kinney, Clesson S. A Treatise on the Law of Irrigation and Water Rights and the Arid Region Doctrine of Appropriation of Waters. 2d ed. San Francisco, Bender-Moss Company, 1912. 4 vols. Martmez-Lopez, Ramon. Concerning the Ownership of the Beds of Creeks in the Civil Law [Austin, privately printed, 1954]. *Mead, Elwood. Irrigation Institutions. New York, The Macmillan Company, 1910. Trelease, Frank J. “Co-ordination of Riparian and Appropriative Rights to the Use of Water,” Texas Law Review, Vol. X X X III (November, 1954), pp. 24-69. -------- . “Trends in the Law of Prior Appropriation,” in University of Texas, School of Law, Water Law Conferences, Proceedings, 1952-1954, pp. 206-220. United States National Resources Planning Board. Water Resources

T h e Spanish E lem ent in Texas W ater Law


Committee. State Water Law in the Development of the West. Washington, Government Printing Office, 1943. *Ware, Eugene F. Roman Water Law Translated from the Pandects of Justinian. St. Paul, West Publishing Company, 1905. #Wiel, Samuel C. “Origin and Comparative Development of the Law of Watercourses in the Common Law and in the Civil Law,” California Law Review, Vol. VI (May, 1918), pp. 245-267, and (July, 1918), pp. 342-371. * . “Theories of Water Law,” Harvard Law Review, Vol. X XVII (April, 1914), pp. 530-544. * . Water Rights in the Western States. 3d ed. San Francisco, Bancroft-Whitney Company, 1911. 2 vols. * . “Waters: American Law and French Authority,” Harvard Law Review, Vol. X X X III (December, 1919), pp. 133-167. III.

W orks on H istory

T h e A n c ie n t W o r ld

Baly, Denis. The Geography of the Bible: A Study in Historical Ge­ ography. New York, Harper 8c Brothers, Publishers, 1957. Breasted, James Henry. A History of Egypt from the Earliest Times to the Persian Conquest. New York, Charles Scribner’s Sons, 1905. Bury, J. B., S. A . Cook, and F. E. Adcock (eds.). The Cambridge Ancient History. Cambridge, The University Press, 1923-1939. 12 vols. Childe, V. Gordon. New Light on the Most Ancient East. 4th ed. New York, Frederick A. Praeger, Inc., 1953. Frankfort, Henri. The Birth of Civilization in the Near East. Lon­ don, Williams Sc Norgate, Ltd. [1951]. Frontinus, Sextus Julius. Two Books on the Water Supply of the City of Rome. Trans, and ed. Clemens Herschel. Boston, n.p., *899. Glanville, S. R. K. The Legacy of Egypt. Oxford, The Clarendon Press, 1942. Jastrow, Morris, Jr. The Civilization of Babylonia and Assyria. Phila­ delphia, J. B. Lippincott Company, 1915. Parker, John Henry. The Aqueducts of Ancient Rome, Traced from Their Sources to Their Mouths, Chiefly by the Works of Fron­ tinus. Oxford, James Parker Sc Co., 1876. Rawlinson, George. History of Ancient Egypt. Boston, S. E. Cassino, Publisher, 1882. 2 vols. --------- (trans. and ed.). The History of Herodotus. New York, D. Ap­ pleton & Company, Inc., 1861-1868. 4 vols.



Reid, James S. The Municipalities of the Roman Empire. Cam­ bridge, The University Press, 1913. Rostovtzeff, M. A History of the Ancient World. Oxford, The Clar­ endon Press, 1926. 2 vols. Semple, Ellen Churchill. The Geography of the Mediterranean Re­ gion: Its Relation to Ancient History. London, Constable 8c Co., Ltd., 1932. -------- . Influences of Geographic Environment on the Basis of RatzeVs System of Anthropo-Geography. New York, Henry Holt and Company, 1911. Toynbee, Arnold. A Study of History. Issued under auspices of the Royal Institute of International Affairs, London, Oxford Univer­ sity Press, 1889----- . 50 vols. Trever, Albert A. History of Ancient Civilization. Vol. I, The An­ cient Near East and Greece. New York, Harcourt, Brace and Com­ pany, Inc., 1936. 2 vols. Wilson, John A. The Burden of Egypt: An Interpretation of Ancient Egyptian Culture. Chicago, University of Chicago Press, 1951.

S p a in

Altamira y Crevea, Rafael. Historia de Espana y de la Civilizacion Espanola. Barcelona, Liberia de Juan Gili, 1900-1930. 5 vols. in 6. -------- . A History of Spain from the Beginnings to the Present Day. Trans, Muna Lee. New York, Van Nostrand Company, Inc., 1949. Arnold, Thomas, and Alfred Guillaume (eds.). The Legacy of Islam. Oxford, The Clarendon Press, 1931. Botella y de Hornos, Federico de. “Inundaciones y Sequias,” in Sociedad Geografica de Madrid, Boletin, Vol. X (1881), pp. 7-32, 81-98. Castro, Americo. The Structure of Spanish History. Trans. Edmund L. King. Princeton, Princeton University Press, 1954. Giner Boira, Vicente. El Tribunal de las Aguas de la Vega de Va­ lencia. Valencia, n.p., 1953. Laborde, E. D. Western Europe. London, University of London Press, 1955. Levi-Proven^al, £. “La Vie ficonomique de L ’Espagne Musulmane au X e Siecle,” in Revue Historique, Vol. 167 (1931), pp. 305-323. --------. La Civilisation Arabe en Espagne. Nouvelle edition. Paris, G. P. Maisonneuve 8c Cie., 1948. Madriaga, Salvador de. Spain. New York, Creative Age Press, Inc., 1943-

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Madden, Marie R. Political Theory and Law in Medieval Spain. New York, Fordham University Press, 1930. Menendez-Pidal, Ramon. Historia de Espana. Madrid, Espasa-Calpe, 1 935- Series in progress. Vol. 1 appeared in 1947 * -------- . The Spaniards in Their History. Trans, with a prefatory essay on the author’s work by Walter Starkie. London, Hollis & Carter, 1950. Pike, Frederick B. “Antecedents of the Spanish Municipality in America.,, Unpublished Master’s Thesis. University of Texas, 1951* Pitt-Rivers, J. A. The People of the Sierra. London, Weidenfeld and Nicolson, 1954. Santillana, D. de. “Law and Society,” in Arnold Thomas and Alfred Guillaume (eds.) The Legacy of Islam. Oxford, The Clarendon Press, 1931. Scott, S. P. History of the Moorish Empire in Europe. Philadelphia, J. B. Lippincott Company, 1904. 3 vols.



S p a in

Bancroft, Hubert Howe. History of Mexico. San Francisco, The His­ tory Company, Publishers, 1886-1887. 5 vols. Barker, F. C. Irrigation in Mesilla Valley, New Mexico. U.S. Geo­ logical Survey, Water Supply and Irrigation Papers, No. 10. Wash­ ington, Government Printing Office, 1898. Blackmar, Frank W. Spanish Institutions of the Southwest Extra volume X of the Johns Hopkins University “Studies in Historical and Political Science,” ed. Herbert B. Adams. Baltimore, The Johns Hopkins Press, 1891. Cline, Howard F. The United States and Mexico. Cambridge, Har­ vard University Press, 1953. Gruening, Ernest. Mexico and Its Heritage. New York, The Century Company, 1928. Guthrie, Chester L. “Colonial Economy: Trade, Industry, and Labor in Seventeenth Century Mexico City,” Revista de Historia de America, No. 7 (December, 1939), pp. 103-134. Haring, C. H. The Spanish Empire in America. New York, Oxford University Press, 1947. Humboldt, Alexander von. Political Essay on the Kingdom of New Spain. Trans, from the original French by John Black. London, Longman, Hurst, Rees, Orme, and Brown, 1811. 4 vols, * Hutchins, Wells A. “The Community Acequia: Its Origin and De-



velopment,” Southwestern Historical Quarterly, Vol. X X X I (Janu­ ary, 1928), pp. 261-284. Jones, O. Garfield. “Local Government in the Spanish Colonies as Provided by the Recopilacion de Leyes de los Reynos de las Indias,” Southwestern Historical Quarterly, Vol. X IX (July, 1915), pp. 65-90. McBride, George McCutchen. The Land Systems of Mexico. Ameri­ can Geographical Society Research Series No. 12. L, G. Joerg (ed.). New York, American Geographical Society, 1923. Phipps, Helen. Some Aspects of the Agrarian Question in Mexico, A Historical Study. University of Texas Bulletin, No. 2515. Austin, University of Texas, 1925. Priestley, Herbert Ingram. The Mexican Nation, a History. New York, The Macmillan Company, 1938. Retinger, J. H. Tierra Mexicana: The History of Land and Agricul­ ture in Ancient and Modern Mexico. London, Noel Douglas [X926]. Simpson, Eyler N. The Ejido: Mexico's Way Out. Chapel Hill, Uni­ versity of North Carolina Press, 1937. Tannenbaum, Frank. The Mexican Agrarian Revolution. New York, T he Macmillan Company, 1929. Texas State Gazette. 1852.



Manuscript Sources * Actas de Visita General, 1767. [Acts of the visit or the charter founding the towns of Mier, Reynosa, Guerrero, Laredo, and Camargo.] Transcript and translation by John L. Haynes, 1872. Spanish Archives, General Land Office, Austin, Texas. Bexar Archives. Archives Collection, University of Texas Library, Austin, Texas, #Blake Collection, Archives, University of Texas Library, Austin, Texas. Vol. 62. Documents relating to irrigation and riparian rights in Texas collected from the Bexar Archives, the Nacog­ doches Archives, and the record books of the city of San Antonio. Mexico. Archivo General de la Nacion. Historia. University of Texas Archives Transcripts. -------- . Archivo General de la Nacion. Provincias Internas. Univer­ sity of Texas Archives Transcripts.


T h e Spanish E lem ent in Texas W ater Law

Printed Works #Arneson, Edwin P. “Early Irrigation in Texas,” Southwestern His­ torical Quarterly, Vol. X X V (October, 1921), pp. 121-130. Austin, Mattie Alice. “The Municipal Government of San Fernando de Bexar, 1730-1800,” Southwestern Historical Quarterly, Vol. VIII (April, 1905), pp. 276-352. Bolton, Herbert Eugene. Texas in the Middle Eighteenth Century: Studies in Spanish Colonial History and Administration. Berkeley, University of California Press, 1915. -------- (trans. and ed.). “Tienda de Cuervo’s Ynspeccion of Laredo, i757,” Southwestern Historical Quarterly, Vol. VI (January, 1903), pp. 187-203. Bowie, Augustus Jesse, Jr. Irrigation in Southern Texas. Annual Re­ port of Irrigation and Drainage Investigations, 1904. Separate No. 6, U.S. Department of Agriculture, Office of Experiment Sta­ tions. Washington, Government Printing Office, 1905. Castaneda, Carlos E. Our Catholic Heritage in Texas, 1519-1936. Paul S. Foik (ed.). Austin, VonBoeckmann-Jones Company, 1936 ----- . In progress. 7 vols. Corner, William (comp, and ed.). San Antonio de Bexar: A Guide and History. San Antonio, Bainbridge 8c Corner, 1890. Hall, Ford W. “An Account of the Adoption of the Common Law by Texas,” Texas Law Review, Vol. XXVIII (June, 1950), pp. 801-826. Hill, Lawrence Francis. Jose de Escandon and the Founding of Nuevo Santander: A Study in Spanish Colonization. Columbus, The Ohio State University Press, 1926. Hoffman, Harold. “Texas Land Titles and Vested Rights,” Texas Law Review, Vol. X X V (May, 1947), pp. 508-529. Horgan, Paul. Great River: The Rio Grande in North American History. New York, Rinehart 8c Company, Inc., 1954. 2 vols. Huson, Hobart. Refugio: A Comprehensive History of Refugio County from Aboriginal Times to 1955. Woodsboro, Texas, The Rooke Foundation, 1953-1955. 2 vols. #Hutson, William Ferguson. Irrigation Systems in Texas. U.S. Geo­ logical Survey Water-Supply and Irrigation Papers, No. 13. Wash­ ington, Government Printing Office, 1898. Lang, Aldon Socrates. Financial History of the Public Lands in Texas. The Baylor Bulletin, Vol. XXXV, No. 3 (July, 1932). Waco, Texas, Baylor University, 1932. McCormick, Charles T . “The Revival of the Pioneer Spirit in Texas



Procedure,” Texas Law Review, Vol. XVIII (June, 1940), pp. 426-

435- # McKitrick, Reuben. The Public Land System of Texas, 1823-1910. University of Wisconsin Bulletin, No. 905. “Economics and Politi­ cal Science Series,” Vol. IX, No. 1, pp. 1-172. Madison, University of Wisconsin, 1918. Miller, Sidney L. Tomorrow in West Texas: Economic Opportuni­ ties along the Texas and Pacific Railway. Lubbock, Texas, Texas Tech Press, 1956. Nagle, J. C. Irrigation in Texas. U.S. Department of Agriculture. Office of Experiment Stations. Bulletin 222. Washington, Govern­ ment Printing Office, 1910. Reasonover, J. Roy. Land Measurements. Houston, privately printed, 1946. Roemer, Ferdinand. Texas with Particular Reference to German Immigration and the Physical Appearance of the Country [1849]. Trans, from the German by Oswald Mueller. San Antonio, Stand­ ard Printing Company, 1935. Scott, Florence Johnson. Historical Heritage of the Lower Rio Grande:A Historical Record of Spanish Exploration, Subjugation and Colonization of the Lower Rio Grande Valley and the Activi­ ties of Jose Escandon, Count of Sierra Gorda together with the Development of Towns and Ranches under Spanish, Mexican and Texas Sovereignties, 1747-1848. San Antonio, The Naylor Com­ pany, 1937. Stambaugh, J. Lee, and Lillian J. Stambaugh. The Lower Rio Grande Valley of Texas. San Antonio, The Naylor Company, 1 954Taylor, Thomas U. Irrigation Systems of Texas. Department of the Interior. U.S. Geological Survey. Water Supply and Irrigation Papers, No. 71. Washington, Government Printing Office, 1902. Taylor, Virginia H. The Spanish Archives of the General Land Office of Texas. Austin, The Lone Star Press, 1955. Texas. Fourth Legislature. House Journal. Austin, Printed by Cushney 8c Hampton, “State Gazette” Office, 1852. -------- . Fourth Legislature. Senate Journal. Austin, Printed by Cushney & Hampton, “State Gazette” Office, 1852. Texas Bar Journal, Vol. I ll (May, 1940), pp. 188-190, 194. Townes, John C. Pleading in the District and County Courts of Texas. 2d ed. Kansas City, Mo., Vernon Law Book Company, 1913. Webb, Walter Prescott. “The Cultural Resources of Texas,” in

T h e Spanish E lem ent in Texas W ater Law


Texas Looks Ahead, I: The Resources of Texas. Austin, Univer­ sity of Texas Press, 1944. Pp. 341_355Wharton, Clarence. “Early Judicial History of Texas,” Texas Law Review, Vol. X II (April, 1934), 311-325. Wooten, Dudley G. (ed.). A Comprehensive History of Texas, 1685 to 1897. Dallas, William G. Scarff, 1898. 2 vols.

G eneral

*Powell, John Wesley. Report on the Lands of the Arid Region of the United States with a More Detailed Account of the Lands of Utah. 2d ed. Washington, Government Printing Office, 1879. Stegner, Wallace. Beyond the Hundredth Meridian: John Wesley Powell and the Second Opening of the West. Boston, Houghton Mifflin Company, 1954. United States Congress. Report of the Special Committee on Irriga­ tion and Reclamation of Arid Lands. Sen. Report No. 928, 1890. 51st Cong., 1st sess. Washington, Government Printing Office, 1890. 4 vols. in 2. -------- . The Treaty between the United States and Mexico. Sen. Exec. Doc. No. 52. 30th Cong., 1st sess., 1848. *Webb, Walter Prescott. The Great Plains. Boston, Houghton Mif­ flin Company, 1936.

IV .

L aw

W o r k s on L a w and L e g a l H is to r y

#Altamira y Crevea, Rafael. “Spain,” Pt. VIII of A General Survey of Events, Sources, Persons>and Movements in Continental Legal History. Vol. I of the “Continental Legal History Series” of the Association of American Law Schools. Boston, Little, Brown and Company, 1912. 11 vols. Buckland, W. W. A Manual of Roman Private Law. 2d ed. Cam­ bridge, England, The University Press, 1947. Mackeldey, Ferdinand. Handbook of the Roman Law. Trans, and ed. Moses A. Dropsie. Philadelphia, T . 8c J. W. Johnson & Co., 1?83* Muirhead, James. Historical Introduction to the Private Law of Rome. London, A. 8c C. Black, Ltd., 1916. Neufeld, E. The Hittite Laws. London, Luzac and Company, 1951. Palmer, Thomas W., Jr. Guide to the Law and Legal Literature of Spain. Vol. 3 in Library of Congress “ Guides to Foreign Law Series.” Washington, Government Printing Office, 1915.



Radin, Max. The Law and You. New York, New American Library, 1 9 4 .8 *

Schmidt, Gustavus. T h e Civil Law of Spain and M exico arranged on the Principles of the Modern Codes, with Notes and Refer­ ences. Preceded by a Historical Introduction to the Spanish and Mexican Law. . . . New Orleans, privately printed, 1851. Vance, John Thomas. The Background of Hispanic-American Law: Legal Sources and Juridical Literature of Spain. New York, Cen­ tral Book Company, 1943. -------- , and Helen L, Clagett. A Guide to the Law and Legal L it­ erature of Mexico. Washington, Library of Congress, 1945. Wolff, Hans Julius. Roman Law: An Historical Introduction. Nor­ man, University of Oklahoma Press, 1951.

C o l l e c t io n s o f L a w s a n d C o m m e n t a r ie s

Blackstone, W illiam . Commentaries on the Laws of England. Ed. W illiam Carey Jones. San Francisco, Bancroft-Whitney Company, 1916. 2 vols. Cora, S. Moreno. Las Leyes Federales Vigentes sobre Tierras, Bos­ ques, Aguas, Ejidos, Colonización y el Gran Registro de la Pro­ piedad. 2d ed. Mexico, Herrero Hermanos, 1910. Driver, C. R., and John C. Miles (eds. and trans.). The Babylonian Laws. Vol. I, Legal Commentary. Oxford, T h e Clarendon Press, 195.2,

*Escriche, Joaquín y Martín. Diccionario Razonado de Legislación y Jurisprudencia. Nueva ed. reformada y considerablemente au­ mentada . . . por José Vicente y Caravantes y Leon Galindo y de Vera. Madrid, Eduardo Cuesta, 1874-1876. 4 vols. Galván Rivera, Mariano. Ordenanzas de Tierras y Aguas: ó Sea Formulario Geométrico-judicial para la Designación Estableci­ miento, Mensura, . . . de las Poblaciones y Todas Suertes de Tier­ ras, Sitios, Caballerías y Criaderos de Ganados Mayores y Menores, y Mercedes de Agua . . . 5th ed., corr. y aum. París, Liberia de Rosa y Bouret, 1868. Gammel, H. P. N. (ed.). The Laws of Texas, 1822-189*]. Austin, T h e Gammel Book Company, 1898. 10 vols. *H all, Frederic. The Laws of Mexico: A Compilation and Treatise relating to Real Property, Mines, Water Rights, Personal Rights, Contracts, and Inheritances. San Francisco, A. L, Bancroft and Company, 1885. *Hamilton, Leonidas (ed.). Hamilton's Mexican Law: A Compila­ tion of Mexican Legislation affecting Foreigners, Rights of For-


T h e Spanish E lem ent in Texas W ater Law

eigners, Commercial Law, Property R ea l and Personal . . . Land Laws and Water Rights— M exican Constitution— Jurisdiction of Courts . . . and M exican M ining Law . San Francisco, n.p., 1882. Johns, C, H. W. (trans.). T h e O ldest Code of Laws in the W orld: T h e Code of Laws Prom ulgated by H am m urabi, K in g of Babylon B . C. 2285-2242. Edinburgh, T . & T . Clark, 1905. Kimball, J. P. (trans.). Laws and Decrees of the State of Coahuila and Texas in Spanish and English to W hich Is A d d ed the Consti­ tution of Said State; A lso, the Colonization Law of the State of Tam aulipas, and Naturalization Law of the General Congress.

Houston, Telegraph Power Press, 1839. Maza, Francisco F. de la. Codigo de Colonizacion y Terrenos Baldtos de la R ep u blica M exicana. Publicado segun acuerdo del Presidente de la Republica. Anos de 1451 a 1892. Mexico, Oficina Tip. de la Secretaria de Fomento, 1893. Pharr, Clyde (trans. and ed.). T h e Theodosian Code and N ovels and the Sirmondian Constitutions. Princeton, Princeton Univer­ sity Press, 1952. mR ecopilacion de Leyes de los Reynos de las Indias. 5th ed. Madrid, Boix, Impresor y Librero, 1841. 4 vols, Reynolds, Matthew G. Spanish and M exican L a n d Laws: New Spain and M exico. St. Louis, Buxton and Skinner Stationery Co., 1895. #Sandars, Thomas Collett (ed.). T h e Institutes of Justinian with English In troduction, Translation and Notes. London, Longmans, Green & Co., Ltd. [1948]. Sayles, John, and Henry Sayles (comp.). Early Laws of Texas. St. Louis, The Gilbert Book Company, 1888. 3 vols. *Scott, Samuel Parsons (trans. and ed.). T h e C iv il Law including the Tw elve Tables, the Institutes of Gains, the R u les of U lpian, the O pinions of Paulus, the Enactm ents of Justinian, and the Consti­ tutions of Leo. Cincinnati, The Central Trust Company, 1932. 17

vols. in 7. #-------- (trans. and ed.). Las Siete Partidas. Chicago, The Compara­ tive Law Bureau of the American Bar Association, 1931. --------- (trans, and ed.). T h e Visigothic Code (Forum Judicum ). Boston, The Boston Book Company, 1910. Texas Legislature. 21st Legis., reg. sess. General Laws. Austin, State Printing Office, 1889. --------- . 24th Legis., reg. sess. General Laws. Austin, Ben C. Jones & Co., State Printers, 1895. --------- . 33d Legis., reg. sess. General Laws. Austin, VonBoeckmannJones Co., Printers, 1913.


B ib lio g ra p h y

--------- . 35th Legis., reg. sess. General Laws. A ustin, A. C. B aldw in &

Sons, State Printers [1917]. W hite, Joseph M. A New Collection of Laws, Charters and Local Ordinances of the Governments of Great Britain, France, and Spain relating to the Concessions of L and in T h eir R espective Colonies together with the Laws of M exico and Texas on the Same Subject to W hich Is Prefixed Judge Johnson's Translation of A zo and ManueVs Institutes of the C ivil Laxu of Spain. P h ila­ delphia, T . and J. W . Johnson, 1839. 2 vols.

V. Cases Cited T e x a s C ases

F lem ing v. Davis. 37 T e x . 173 (1872). Haas and another v. Choussard. 17 T e x . 588 (1856). M cCurdy et al. v. Morgan et al. (No. 12,626 C ourt o f C ivil Appeals for F ourth Supreme Judicial D istrict of Texas.) B rief for Appellees (1954). Manry v. R obison. 122 T e x . 213 (1932). M iller v. L etzerich. 121 T e x . 248 (1932). M o tl v. Boyd. 116 T e x . 82 (1926). R hod es v. W hitehead. 27 T e x . 304 (1863). San Juan D itch Co. v. Cassin et al. (Court of C iv il Appeals of T exas.) 141 S.W. 815 (1911). State of Texas et al. v. Hidalgo County Water Control and Im prove­ m ent District N o. 18 et al. 93rd District Cou rt (Case filed June 23, 1956. Decision pending). State of Texas et al. v. Valmont Plantations et al. B-20791, 93rd Dis­ trict C ourt, H id algo County, T ex a s ( 1959). T exas-M exican Railway Co. v. Locke. 74 T e x . 370 (1889). T o lle v. Correth. 31 T e x . 362 (1868). W atkins Land Company et al. v. E. Clements. 98 T e x . 578 (1905).

M is c e l l a n e o u s C ases

Clough v. Wing. 2 Ariz. 371 (1880). Hagerman Irrigation Co. v. M cM urry. 16 N .M . 172 (1911)* M ason v. H ill. 5 Barn. & A dol. 1, 110 Eng. R ep rin t 692 (1833). W ood v. Waud. 3 Exch. 748, 154 Eng. R ep. 1047 (1 8 4 9 )*


Index Abrevaduas (places for watering cat­ tle), 71 Ace quia de la Espada. See Espada ditch Acequia de San Juan. See San Juan ditch Acequias: 69, 79, 100, 101; con­ struction of, 112-113, 117, 118, ll9 Aces River (Persia), 40 Actas de Visita General of 1767, 127, 160 Act of 1871, on property rights and land titles, 131 Administrative system, of water law, 16, 23, 153-155 Africa, influence of, on Spain, 58 Agriculture: in Egypt, 35; in Greece, 35; in M esopotam ia, 37; in Mexico, 92-93 Aguas (waters and water courses for irrigation), 71 Akkadians, 39 Alamo Madre ditch, 111 Alarc6n, Martin de, 108 Alaska, adoption of dual system by, 22 n. 46 Alfonso X of Castile, 74 Almanzora (Spain), siphon at, 64 Amarillas, Marquis de las, 87 Anahuac, Texas, 6 Angelina County, land grants in, 128 Angell, Joseph K., cited, 133 Anglo-Am ericans, conflict with Spanish-American culture, 26 Antoninus (Emperor), 49, 50 Appropriation. See Prior appropria­ tion, system of A quae ductus (servitude), 50

Aquae educendae s. immittendae (servitude), 50 Aquaehaustus (servitude), 50 Aqueducts: 41; supplying Rome, 42; care of, 54; of the Moors, 64 Arizona: system of prior appropria­ tion in, 22 n. 45; law regulating acequias in, 137 n. 39; courts of, 144 Arneson, Edwin P., quoted, 61 Arredondo, Joaquin de, 124 n. Arroyos (streams whose flow disap­ pears in summer), 62 Asinais Indians, mentioned, 102 n. Augustus (Emperor), 42 Avendano, Andres de, doctrine of, 96, 150 n. Ayuntamiento, 98, 101, 119 Babylonians, in Mesopotamia, 36, 37

Baetic Mountains, 59 Bahia del Espiritu Santo Presidio, 102 Balli, Juan Antonio, 125 n. Barker, F. C., quoted, 70 n. Basque Mountains, 59 Berban, Manuel, 120 Bexar Archives, 113 n., 120 Blackmar, Frank W., quoted, 72 Blackstone, William, 19 n., 20 n.,

133 Blake, R. B., 86 n. Blalock, W. R., 148 n.; decision of, in State of Texas et al. v. Val­ mont Plantations et al., 159162 Board of Water Engineers (Texas), 29, 147,158 Boyd, R. W., 140 n.


T he Spanish Element in Texas Water Law

Browder, B. M., 137 Burgess-Glasscock Act of 1913, 29

priation in, 22 n. 45; law regulat­ ing acequias in, 137 n. 39 Comal River, 135

Caballerías, 129 C ad od ach es In d ian s, m en tio n ed , 102 n. California, water-rights system in, 22 n., 155 n. Camargo (Spanish Texas), 107, 124, 129, 131 Cameron County, land grants in, 125, 131; claims to riparian irri­ gation rights denied in, 161 Canales, J. T ., riparian system ad­ vocate, 148-155 passim Canary Island settlers, 114-120 pas­ sim

Common law: riparian rights, 2021; T exas’ adoption of, 26-27; influence of, on Texas water law, 132-136; effects of adoption on T exas water rights, 148-149, 151, 152, 15411. 77, 159 Communal rights: in water of Span­ ish towns, 71-72, 76, 78-79, 81; in land among Indians, 93; in New Spain, 94, 97-98 Concepción (Pajalache) ditch, 111 Concho River, irrigation system on,

*39 Conquistadors, 26, 61, 96, 102

Candelaria and San Lorenzo Mis­ sion, 105

Conservation Amendment of 1917,

Carthaginians, in Spain, 59

Constitution of 1836, Texas, 27

Cassius, on Roman water-law term,

Constitution of 1876, Texas, 131



Castañeda, C. E., quoted, 106

Corner, 118

Catalan Coast Range, 59

Corpus Juris Civilis, 43, 45, 52, 74,

Celsus, on Roman water-law term,

48 Celts, in Spain, 59 Cities: Roman, water supplies for, 54, 55, 56; Spanish, water use in, 72 C ivil law, establishment of riparian rights in, 20. See also Roman water law Clarksville, Texas, 6 Coahuila and Texas, state of, 27

W illiam :

ii4 n .;


75 Cuervo, T ien d a de, 107 Cureton, Calvin Maples: opinion on M otl v. Boyd, 140-142, 145; personal history, 14 m . Daphne, palace at, 55 Davenport, Harbert, riparian sys­ tem advocate, 148-155 passim De abrevadero. See D e agostadero lands

Code of Hammurabi, 37

De agostadero lands (lands suitable for grazing), 125, 126, 128, 130,

Code of Justinian. See Corpus Juris Civilis

Dehesas (pastures), 97


45> l49

Code of Napoleon. See Napoleonic Code

D el Rio, Texas, irrigation ditch at,

Codex Repetitae Praelectionis, 45 Codex Theodosianus, 45, 53

De regadío lands

Colorado: system of prior appro­

De riego lands (permanently irrig-

139 lands.

See De


Index able arable land), 125, 126, 127, 128, 145, 149 De temporal lands (arable land de­ pendent upon rainfall), 125, 126, 127, 128, 130, 145, 149 Diccionario (Escriche), 78, 145 Digest (Pandects), 45, 47, 48, 49, 52 Diocletian (Emperor), 53 Doane, Rufus, 137 Dolores (Spanish Texas), 107 Dolores y Viana, Francisco Mariano de los, 105 and n. 55 Drought, in Texas, 4 Ebro River (Spain), 62 Egypt: 33; rivers of, 33, 34; govern­ ment and law in, 35, 36 Elche, Spain, 69 Elche dam, 64 El Paso, Texas: rainfall at, 6; in 1760, 104; irrigation system at, i34» *37> 139 England, riparian-rights doctrine in, 20 English common law: adopted in Texas, 26, 27, 28 and n. 57, 151, 153 n., 154 n. 77, 155, 159; dominance of, 132, 161 Escand6n, Jos£ de: 106, 107; col­ onies of, 125 Escriche y Martin, Joaquin: quoted, 78, 79, 80, 81, 83; use of, in Texas courts, 80, 81; cited, 145, 146, 160 Espada ditch, 112, 135 Espada Ditch Company, ii2 n . 68 Espada Mission. See San Francisco de la Espada Mission

183 Ferae bestiae (right to ownership of captured wild animals), 51 Ferae naturae (right to ownership of captured water), 51 Fertile Crescent, 39, 41 Flavius Recesvintus, law issued by, 73 Fleming v. Davis, case of, 134 Flores, Geronimo, 117 Fort Quitman, mentioned, 147 Fort Stockton, irrigation develop­ ment at, 139 Frontinus, Sextus Julius, 42, 56 Fuente, Toribio de la, n g n . 88 Fuentes (springs for domestic use and irrigation), 71 Fuero Juzgo (early Visigothic code), 73 Fueros (grants of privileges), 71 Galvan Rivera, Mariano, 95 n. 22 Gammel, H. P. N., quoted, i26n. 10 Garza y Cantu, Franc0 de la, 125 n. 4 Goliad, land grants near, 124 Greece, dependence upon rainfall, 35 Greeks: concern for water, 40; in Spain, 59 Guadalupe Hidalgo, Treaty of, 131 Guadalupe River, 102, 105, 106 Guerrero (Spanish Texas), 107, 124, 127, 131 Gulf Coast, Texas, ion. 20

Espiritu Santo, Bay of, 102 n.

Haas v. Choussard, case of, 133

Euphrates River, 36, 37

Hacienda, of New Spain, 93

Exido (land for town use), 97

Hall, Frederic: 81; cited, 145

Falcon Dam, 147

Hall, William Hamilton, quoted, 47, 70-71, 81, 82 Hammurabi, 37, 38, 39

Falcon Reservoir, 147


T h e Spanish E lem ent in Texas W ater Law

Hawkins, Walace, quoted, 14m . Haynes, J. L., 131 Herodotus, 34, 35, 37, 40 Hidalgo County, 125, 146; claims to riparian irrigation rights denied in, 161 High Plains: n n .; irrigation on,

139 Hispanic-American water law, cen­ tral concept of, 98-99, 143 Hittites, and irrigation, 40 Hutchins, Wells A., quoted 69, 100 Hydrophylacas (Roman water cus­ todians), 54 Iberian Peninsula, description of,

58.59 Iberians, blood lines of, 59 Idaho, system of prior appropria­ tion in, 22 n. 45 Indians: of central Mexico, 93; Texas, use in constructing irri­ gation works, 105, 106, 113. See also Asinais; Cadodaches; Pueblo Indians; Yuma Institutes of Justinian, 45, 46, 48,

5i Irrigated land, Texas, 10, 124, 139 Irrigation: amount of water used for, in United States, 9; use of prior-appropriation system in, 18, 19; legislative acts concerning, 28, 29; early use of, 33, 34; in Mesopotamia, 37, 38; by Hittites, 40; by Persians, 40; in North Africa, 43; under Romans, 42, 43; in Spain, 63-77 passim; Span­ ish law largely of Moorish origin, 69; of Visigoths, 73; in Mexico, 92-93; in New Spain, 94, 100, 101; Spanish concern with, in New Spain, 102-103; in Spanish Texas, 103-113; work of mission­ aries in, 105, 106; lands classified as to possibility for, 125-130;

large-scale development in Texas,

139 Irrigation ditches. See Acequias Irrigation legislation: Act of 1852, 28, 139; Act of 1889, 28; Act of *895, 29; Burgess-Glasscock Act of 1913, 29; conservation amend­ ment of 1917, 29; mentioned, 161 Irrigation rights in Moslem law,

65-67 Irrigation works: early, construction of, in Texas, 105; from 1868 to present, 139. See also Acequias Israelites, 35 Jefferson County, rice cultivation in, 139 Jews, concern of, for water, 39 Jus civile, 43 Jus gentium, 44 Jus honorarium (jus praetorium), 44

Jus naturale, 44 Justinian, 43 Justinian’s Code. See Corpus Juris Civilis Kansas, dual system in, 22 n. 46 Kent, James, 20, 133 Kimball, J. P., quoted, i26n. 10 King, Neal, on water rights, 152-

153 Kinney, Clesson S., quoted, 63, 6970 Kinney County, land grants in, 131 Koran, as basis of Moslem law, 65 Kuenen, P. H., 3, 4 La Bahia del Espi'ritu Santo Mis­ sion, 105 Labeo (Roman legal quoted, 49, 53-54


In d ex


Labor de Nuestra Senora de los Dolores, 118 La Mancha, 61 Land grants, in Texas, four govern­ ments granting, 28 n. 57 Land grants, Spanish: 87, 96, 123132; types of, 97, 124-125; court test determining rights attached to, 146 Land-holding system: of central Mexico, 93; in New Spain, 93, 94 Lands: Spanish classification of, in Texas, 87-89, 100, 125-130; com­ munal, in New Spain, 97-98; municipal, in New Spain, 97-98; Spanish division of, in Texas, 114, 115; distributed by Spanish officials in Texas, 114, 115, 118 Land titles and property rights: 28 n. 57, 124-125. See also Treaty of Guadalupe Hidalgo; Relin­ quishment Act of 1852; Act of 1871; Constitution of 1876 Laredo, Texas, 107, 124, 127, 131 Las Siete Partidas: compilation of, 74; provisions relating to water, 74-77 passim; mentioned, 89, 90 Lasso, Domingo, de la Vega, quoted, 94-95, 96, 99; mentioned, 161 Law of the Twelve Tables, 43, 50 Laws of Mexico (F. Hall), 81; cited,

145 Leyes de Toro, 77 Llano River, irrigation system on,

m Lorca, Spain, 69 Los Adaes presidio, 102 McCormick,

Charles T.,


132, 133 Madriaga, 60-61



Magic Valley, 124 Mason v. H ill, case of, 20


Maverick, Samuel Augustus, 138 Maximian (Emperor), 53 Mead, Elwood, 18 Mediterranean region, 39


Mesa del Norte, 92 Meseta (Spain), 59, 60 Mesilla Valley (New Mexico), 70 n.

30 Mesopotamia: 33, 36, 37; rivers of,

33> 34 Mexican law, in land classification,

145 Mexico: independence of, 26; land grants from, 28 n.; agriculture in, 92-93; central, land system of, 93

Mexico, Valley of, 126 Mier (Spanish Texas), 107, 124, 127, 129, 131 Missionaries, work of, in irrigation, 105, 106 Mohammed, teachings of, on water,

65 Montana, system of prior appropri­ ation in, 22 n. 45 Montes de Oca, Juan Jose, 119 n. 88 Moors: in Spain, 59; irrigation by, in Spain, 63-70 passim Moses, 35 Moslem water law: 65-70 passim; basis of, 69 Motl v. Boyd, case of: 30 n. 65; sig­ nificance of, 139-146; background of, i4on. 47 Murcia (Spain) dam, 64 Nacogdoches, Texas, land grants near, 124 Nacogdoches Archives, ii4 n . 71 Nacogdoches County, land grants in, 128 Napoleonic Code, 20, 81

T h e Spanish E lem ent in Texas W ater Law


Nebraska: dual system in, 22 n. 46; mentioned, 29 Neighbors, Roberts., 173 Neolithic man, effects of climate upon, 33 Nevada, prior-appropriation system in, 22 n. 45 New Mexico: system of prior appro­ priation in, 22 n. 45; operation of an acequia in, 101 n. 46; law regu­ lating acequia in, 137 n. 39; de­ cision of courts of, on riparian ownership, 144 New Spain: water laws and institu­ tions of, 85-86, 94, 95, 143; law of, 89-90; private property in, 90-91; boundaries of, 92; de­ scription of, 92; towns established in, 97, 98; irrigation in, 94, 100, 101 Nile River, 33, 36 Ninety-third District Court, case before, 147; decision in, 159^162 Niz, Manuel de, i2on. 90 Nomarch, Egyptian, 36 North Africa, Roman irrigation in, 43

North Dakota, dual system in, 22 n. 46 Novisima Recopilacion, 77 Nueces


land grants in,

! 3! Nueces drainage area, irrigation sys­ tem in, 139 Nueces River, 105, 106, 131 Nuestra Senora de la Purisima Concepci6n de Acuna Mission, 111 Nuestra Senora del Refugio Mis­ sion, 105 Nueva Recopilacion, 77 Nuevo Santander, province of, 106, 107 Oconitrillo, Pedro de, i2on. 90

Oil industry, water requirements of, 9, 10 Oklahoma, dual system in, 22 n. 46 Olivares, Antonio de San Buena­ ventura, 108 Onate, Lie Santiago, 160 Ordenamiento de Alcala, 77 Oregon, dual system in, 22 n. 46 Orobio y Basterra, Joaquin, 106 Papirius Justus, quoted, 49 Pecoris ad aquam appulsus (servi­ tude), 50 Pecos River, irrigation systems on,

139 Pena, Manuel de la, 91 Persia, empire of, 41 Persians, irrigation by, 40, 64 Philippine Civil Code, 145 Philippines, water rights in, 144-145 Piedras Creek, 112 Pindar, quoted, 40 Plan of Pictic, 101 Pomponius, quoted, 49, 52, 54 Porciones (individual assignments of land): 124, 125; laying out of, in Rio Grande Valley in 1767, 128-131 Powell, John Wesley, on classifica­ tion of arid lands, 22, i29n. 18 Praetors (Roman), 44 Prior appropriation, system of: 16, origin and development of, 1719; states adopting, 22 n. 45; con­ flict with riparian rights, 23; Texas adoption of, 28-29; ele­ mental principles of, 46; in Ro­ man law, 56-57; victories in Texas legislature, 139 Proculus, 54 Procurador (mayordomo), 98 Propios (land set aside for use by town councils), 97

In d ex Pueblo*, role of, in Spain, 71, 72; water law of, 83; in New Spain,

90 Pueblo Indians, 104 Pyrenees, 58, 59 Que hubiera de regadio (lands “sus­ ceptible of irrigation”), 126, 160 Radin, Max, quoted, 147 Rainfall, Texas, variability of, 4, 6, 8

Rebolledo, Juan de Olivan, 102 n. Recopilacion de Leyes de los Reynos de las Indias, 89, 93, 101, 115, 160 Red River Basin, 11 n. Religions: of Spain, 59; Moslem, 65 Relinquishment Act of 1852, 131, 151, 153 n., 155 Retinger, J. H., quoted, 93 R evilla. See Guerrero (Spanish Texas) Reynosa (Spanish Texas), 107, 124, 127, 131 Rhodes v. Whitehead, case of, 133—

134 Rice cultivation, irrigation in, 139 Right of thirst, 65-66 Right of transferring water rights, 65-66, 161 Rio Grande: irrigation works on, 104; land rush along, in 1749, 106; land grants along, 124, 128, 159; as boundary, 130; expansion of irrigation system on, 139; men­ tioned, 131, 147; riparian rights on land abutting, 161, 162 Rio Grande settlements, inspection of, in 1757, 87 Rio Grande Valley; 28, 125, 146; land grants in, 128-131 passim; riparian irrigation rights denied outside watershed of, 161

187 Rios (streams with constant and regular flow), 62 Riparian rights, system of: 16, 17; origin of, 19, 20; development of, 21; problems of, 22; arid states recognizing, 22 n. 45; conflict with prior-appropriation system, 23, 139; in Roman law, 56-57; in Spain, 80-83; early Texas deci­ sions involving, 132-136, 159, 160; not mentioned in Irrigation Act of 1852, 138-139; decision in Motl v. Boyd regarding, 142-143, 145146, 159-160; as recognized in New Mexico, 144; as recognized in Arizona, 144; pending Texas cases involving, 146-148, 161-162; Davenport-Canales position on, 148-152, 155; Neal King position on, 152-153; White-Wilson posi­ tion on, 153-154, 155; primary concern of, 157; decision concern­ ing, in State of Texas et al v. Valmont Plantations et al., 160162 passim Ripperda, Juan Maria Vicencio, Baron de: 117; decree of, ii4 n . 71

Rivera, Mariano Galvan, 95 n. 22 Rivera, Pedro de, 104 Rivers: important role in history, 33, 34; “public,” 46, 48, 49, 56, 95; “private,” 48, 56, 95; of Spain, 61, 62 Roemer, Ferdinand, 121 Roman, Felipe Sdnchez, 128 Roman irrigation, in Spain, 63 Roman law: basis of, 43-44; in­ fluence of emperors on, 44; codi­ fication of, 45; reintroduced into Spain, 74 Romans, in Spain, 59 Roman water law, 45-57 Roman Water Law (Ware), 52 Roman water system, 41, 42

T h e Spanish E lem ent in Texas W ater Law

188 Rome: greatness of, works of, 42 Rosario Mission, 105



Running water, fundamental legal concepts concerning, 15, 46, 47, 56 > 75 > 7 8 > 79 >

8 0

San Antonio: irrigation systems of, 108-112, 134, 137; water adminis­ tration in, 121; land grants near, 124 San Antonio de Padua, 108 San Antonio de Valero Mission, 108, 111-112 San Antonio River, 106-120 passim, 136 San Antonio Spring, 102 n. San Fernando de Bexar, villa, 108, 111, 114, 116 San Francisco de la Espada Mis­ sion, 111, 112, 136 San Jose ditch, 112 San Jos£ y San Miguel de Aguayo Mission, 111 San Juan Capistrano Mission, 111, 136 San Juan ditch, 112, 135, 136 San Juan Ditch Company, 136 San Juan River, 108 San Pedro Creek, 113, 114, 116, 117, 120 San Pedro ditch, 111 San Pedro Spring, 108, 111 San Saba Mission, 105 San Saba River, irrigation system on, 139 Santa Dorotea, 106 San Xavier Mission, 105 Scott, S. P., quoted, 64 Secondary recovery, oil, water re­ quirements for, 10 Seguin, Santiago, 120 Segura River (Spain), 64

Servitudes: conception of, 10; in Roman law, 50-51; in Spanish law, 75-76, 82, 148 Sierra Gorda, map of, 87 South Dakota, dual system in, 22 n. 46 Spain: land grants by, 28 n. 57; cul­ tures of, 58-59; terrain of, 59; climates of, 59-61; rivers of, 61, 62; irrigation in, 63-77 passim; legal codes of, 72 Spanish, in Texas, 25, 26 Spanish-American culture, conflict with Anglo-American, 26 Spanish Civil law: in Texas, 26, 27, 28; roots of, 31; waning of influ­ ence of, in Texas, 132 Spanish legal system, Roman foun­ dation for, 74 Spanish water law: concerning irri­ gation, 69; riparian owners under, 81, 82, 83; development sum­ marized, 83-84; in Texas, 1958, 147-158; principal findings con­ cerning, in State of Texas et al. v. Valmont Plantations et al., 160 Spanish water-rights system: 26; characteristics of, 156-157 Spring Creek, i4on. 47 Stare decisis, 161, 162 Starr County: 125; land grants in, State Board of Water Engineers. See Board of Water Engineers (Texas) State of Texas et al. v. Hidalgo County Water Control and Im­ provement District No. 18 et al., 146-147 State of Texas et al. v. Valmont Plantations et al., 148; decision in, 159-162 passim Story, Joseph, 20



Suertes (irrigable land distributed by lot), 97, 114, 118, 120 Sumerians, in Mesopotamia, 36, 37 Surface waters, laws relating to, 29 Syndic (chief irrigation official, Va­ lencia), 68

Towns, establishment of, in New Spain, 97-98 Trans-Pecos region, irrigation in, 103 Trelease, Frank J., 23 n. 48 Tribunal of Waters of Valencia, 68,

Tamar6n, Pedro, 104 Tamaulipas, land grants by, 151

Trinity River, 86 Tulianus (Roman), 50

Teran de los Rio, Domingo, 102, 108

Ulpian (Roman), quoted, 48, 49, 52,


Terminos (land contiguous to, and under jurisdiction of, a city), 71, 72 Texas: drought in, 4; water prob­ lem in, 4, 6, 12, 13; rainfall vari­ ability of, 4, 6, 8; urbanization of, 9; irrigated land in, 10; dual sys­ tem of water rights in, 22 n. 46; diversity of, 25, 26; early Spanish explorations in, 102; Spanish ir­ rigation in, 103-113; Spanish in­ fluence in, 123 Texas Supreme Court, 138, 140, 143; mentioned, 161 Texas water law: origin of, 26; legislative actions, 28, 29; Span­ ish heritage of, 58; major devel­ opments in (1836-1926), 132-139. See also Irrigation legislation; Riparian rights, system of: Water law Thales, 4 Theodosian Code. See Codex Theodosianus Thesarus Indicus, 96, 150 n. 68 Tierras de regadio (irrigable land), 126 Tigris-Euphrates Valley, 33 Tigris River, 36-37 Tolle v. Correth, case of, 134, 135 Tom Green County, i4on. 47 Torrentes (intermittent streams), 62 Townes, John C., 26

57 United States, systems of water law in, 16 United States Army Engineers, 158 United States Bureau of Reclama­ tion, 12, 158 United States Public Health Serv­ ice, 9 United States Service, 158



Upper Labor ditch (San Antonio), 101 n. 46, 111, 112, 117, 119 Usufructuary right, 15, 51 Utah, prior-appropriation system in, 22 n. 45 Valencia, influence of, on Spanish water law, 68, 70, 71, 157 Vega, Domingo Lasso de la, quoted, 94-95, 96, 99; mentioned, 160 Verus (Emperor), 49 Visigoths: in Spain, 59, 71; irriga­ tion by, 63; water laws of, 73 Von Humboldt, Alexander, 92 Ware, Eugene F., 38, 52, 77 n. 56 Washington (state), dual system in, 22 n. 46 Water: properties of, 3, 4, 13; im­ portance of, in Texas, 3; use in agriculture and industry, 9; in­ crease in demand for, 9; average


T h e Spanish E lem ent in Texas W ater Law

use per person in United States, 9; use in Texas refineries, 9; regulation of use in Roman cities, 54 * 55 > 56» transporting by siphon, 64; Mohammed’s teach­ ings on, 65; sale of, 66; use in Spanish towns, 72 Water code, present, adopted in Texas, 29 Watercourses (Angell), 133 Water grants, Spanish, 99-100 Water-injection process, 9 Water law: growth of, 15; basis for, 15; systems of, in United States, 16; present trend in, 23; earliest known, 38, 39; principles of, in Roman law, 41; modern, Roman contribution to, 56-57; based on ancient custom and practice, 83; in Spain, development summar­ ized, 83-84; of New Spain, 90; Spanish administration of, in Texas, 113-122; system in New Spain, 143. See also Moslem water law; Roman water law; Spanish water law; Texas water law Water Law Conference of 1954, 152 Water problem, Texas: 4, 6; crux of, 11, 12; suggested solutions, 12,

13’ 157 Water rights: 15; dual system of, in Texas, 22 n. 46; acquired by us­ age, 52; acquired as ancient cus­ tom, 53; sale of, 69, 120; in Phil­ ippines, 144-145

Watkins Land Co. et al. v. E. Clements, case of, 134 Webb County: 125; land grants in,

131 West Texas counties, estimated water needs of, 11 n. White, A. A.: 30 n. 65; study by, 128; quoted, 138-139, 143; on M otl v. Boyd, 146; position on Spanish water rights, 153-154 White, H. C., 140 n. 47 Wiel, Samuel C., quoted, 17-21 passim, 51, 57, 82 Willacy County, grants in, 125; claims to riparian irrigation rights denied in, 161 Wilson, Will: quoted, 20n. 41, 138!39, 143; study by, 30 n. 65, 128; on Motl v. Boyd, 146; position on Spanish water rights, 153-154 Winthuysen, Thomas Phelipe de, 103 n. 48, 111 n. 66 Wood v. Waud, case of, 20 Wyoming, prior-appropriation sys­ tem in, 22 n. 45; mentioned, 29 Ysamendi, Pedro, i05n. 55 Ysleta, Texas: rainfall of, 6; irriga­ tion system in, 104 Yuma Indians, mentioned, 104 Zapata County, grants in, 125 Zimmermann, Erich W., quoted, i2n. 22