Water in New Mexico, like much of the arid West, is a critical, if not limiting, resource. Today, users competing for water range from parciantes dependent on small acequias, to municipalities like Albuquerque, to manufacturing heavyweights like Intel. Yet, the contemporary legal process whereby water is allocated among competing users traces its origin to the arrival of Spanish colonists in 1598.

Baxter’s book documents the process whereby Spanish legal precedents became incorporated as part of New Mexico’s legal customs. The book is confined to the period 1700-1912. The period prior to 1700 cannot be examined since most records were destroyed in the 1680 Pueblo Revolt. This discussion concludes in 1912, coinciding with the appearance of large federal irrigation projects (such as the Lower Rio Grande Irrigation Project) in the state. What makes Baxter’s study unique is its exploration of the manner in which the U.S. legal system has been superimposed onto preexisting Spanish legal theories regarding water allocation.

Baxter identifies two major intervals during which methods for apportioning water became established. The first, with roots in the Spanish colonial period, involved a mixture of informal and, less commonly, formal or legal means of resolving water disputes. In the first instance, individual farmers resolved disputes through mediation or consensus, while in the latter local alcaldes arbitrated disputes. In addition, Baxter traces the now-pivotal concept of “prior appropriation”—that those who used irrigation water earlier in time have rights antecedent to the rights of those who first used water later in time—to decisions made as early as 1695. Baxter finds that the Kearny Code (1846) retained the role of alcaldes and allowed existing Spanish laws regarding water to remain in force. Accompanied by the election of (mostly) Hispanic judges cognizant of prior customs, the early territorial years saw few changes in the administration of water law across New Mexico.

The second phase in the development of water law occurred in the late nineteenth century with the appearance of numerous private, large-scale irrigation projects. While most never came to fruition, they prompted a reconsideration of potential conflicts between Spanish-derived means of allocating irrigation water and those necessary for large-scale irrigation projects serving many farmers. Laws were passed permitting irrigation companies to obtain ditch easements across private lands, subject to the constraint that the prior rights of landowners were not affected. Following Spanish custom, disputes continued to be resolved by panels of experts. However, adjudications began to require that streamflows and allocations of water to different users actually be measured—a requirement without precedent in Spanish or Mexican custom. Moreover, court decisions began to sever the link between ownership of land and rights to irrigation water. This, too, was a move without precedent in Spanish or Mexican custom, which normally viewed water rights as being part of land ownership. This culminated in 1907 with passage of explicit state water laws regulating the community acequias that formed the backbone of most of the state’s towns and villages. As part of these new regulations, parciantes had to petition the Territorial (later State) Engineer Office for approval to use their water and, if necessary, litigate their priority claims. In some instances, individual cases have remained unresolved for decades.

What makes Baxter’s narrative particularly appealing is his interweaving of case studies—specific legal cases heard and adjudicated by Spanish, Mexican, and, finally, American authorities. These admirably illustrate the legal intent and implications of decisions concerning water allocation over the centuries. They also illustrate episodic inconsistencies in decisions that, in turn, underscore problems associated with relying on customs that may vary from village to village or basin to basin. Finally, Baxter makes clear the overriding importance of nonlegal means for resolving water disputes that characterized much Spanish and Mexican legal theory. In our era of hyper-litigation, these early approaches for resolving water issues—most of which required (indeed, assumed) negotiation—may profitably be revisited.