Water Rights in Mexico, 1875–1890: Communities of Landowners and Ayuntamientos, and Networks of Judge-Made Law

Saturday, January 7, 2012: 3:10 PM
Michigan Room A (Sheraton Chicago Hotel & Towers)
Alejandra Nez-Luna, Harvard Law School
Prior to 1888, when Congress passed a statute to empower the Executive to regulate navigable watercourses, water in Mexico was managed by landowners and ayuntamientos, which followed colonial practices that remained in effect well into late-nineteenth century.  The historiography of water focuses on these communities by contrasting the economic power of landowners and businessmen against the weaknesses of ayuntamientos.  From the legal perspective, this account has not paid proper attention to the development of private law after the passage of state civil codes from 1870 onwards.  It has also failed to recognize the role of another community –the Judiciary– in making property rules that acted as networks among landowners and ayuntamientos seeking to defend their water rights.

This paper describes the rules of private and public law applicable to water resources “in action,” through the description and analysis of state and federal court decisions published between 1875 and 1890 in the liberal legal periodical El Foro and in the Semanario Judicial de la Federación.  It also explains how landowners and ayuntamientos interacted while using those rules in the context of private and constitutional litigation.  Private law decisions were rendered in two major types of proceedings, injunction suits and ordinary civil trials involving competing property regimes: mercedes of “waters” and public use of “rivers.”  Public law decisions concerned amparo proceedings alleging violation of the 1857 Constitution by ayuntamientos’ actions that restricted landowners’ private property rights.  The analysis of these decisions shows that courts were making their own rules when constructing interpretations of the Partidas, civil codes and constitutional provisions, where those legal frameworks could not have provided the answers that supported their decisions, which privileged private property over the public interest.