ALBUQUERQUE DISPUTE OVER NEW ACEQUIA; INJURIES FEARED FOR FAMILY
 

August 1-November 9, 1732. Source:SANM II #372.

S ynopsis and editor's notes: This document is one of several cases in the Spanish Colonial archives that address disagreements over water rights. In this instance, Cristóbal Gárcia wanted to dig an acequia take-out from the Rio Grande with the acequia running through the property of Joseph Montaño before it got to his. There was an existing acequia nearby, but Gárcia wanted to dig another one close to Montaño's house. Montaño quibbled, citing difficult access to his fields for himself and his livestock and danger to his house and family because of the proximity of the ditch. Alcalde Juan Gonzales Bas ordered the two men to meet. After some arguing and finger-pointing, they agreed in writing that Gárcia could dig the acequia and would build a bridge over it for Montaño, with maintenance by both pares. Gárcia was not to be liable for any damages to Montañs property. The governor, Cruzat y Gongóra, added to the agreement that if there was any additional dissension, each would be fined fifty pesos.

The basis for the decision of the governor and the alcalde seems to be a determination that, if a settler wanted an additional take-out of water, then the water from that source was to be shared with the owners of the property through which it ran (see also Doc. 52). In this document, as in others, the alcalde and the governor act as arbitrators, pushing for a compromise that would benefit both parties. Note that Montaño is careful about the final determination, asking the governor for a juridical,or formal legal statement. This statement is provided by the governor with a list of written conditions.

Villa of Alburquerque August 19, 1732 and I rubricated it

Alcalde mayor and war captain (rubric)

[I] Cristóbal Garcia,resident of this villa of San Francisco Xavier of Alburquerque, present myself before the Christian judgment of your honor in the best form which there is and in which I come forth and say that,I find myself below a piece of land belonging to Joseph Montaño,and it being most necessary to take out an acequia for the maintenance of my family, which was denied by the said Joseph Montaño,telling me that he does not want to leave any possible damages to his sons, by my causing damages to his entrances and exits. For this reason, I petition your honor to attend to my request through which I shall receive mercy, and I swear according to my proper form not to be of any malice but for what isnecessary, etc.

Cristóbal Gárcia (rubric)

It [the petition] herein contained was presented to me, and upon my review, and according to his [Gárcia's] rights, I ordered him and Joseph Montaño to get together at the home of Juan Griego so that verbally they can hear his petition, and according to their individual arguments they can in justice determine what is most convenient. I thus decreed, ordered, and signed it acting as pre siding judge along with my assisting witnesses in the present month of August of the year of 1732.

Juan Gonzales Bas (rubric)
Witnesses: Francisco Antonio Gonzales (rubric) Ysidro Sánchez (rubric)

In this villa of San Felipe de Alburquerque on the fourth day of the month of September of 1732, I, Captain Juan Gonzales Bas, alcalde mayor and war captain of the said villa and of its jurisdiction, ordered Joseph Montaño and Cristóbal Gárcia to appear at the home of Juan Griego so that they can verbally agree to the petition presented by the said individual. Because Joseph Montaño did not want to agree to of the juridical proceedings be sent to the superior government [the governor] for the continuation of the arguments. For this purpose, I ordered that a copy be sent to Joseph Montaño so that he can respond to it within the three days following, so that he can answer to his rights in whichever way he wants. I thus approved, ordered, and signed it with my two assisting witnesses due to the lack of a public or royal scribe because there is none in this kingdom, on the said day, month, and year, etc.

before me as presiding judge Juan Gonzales Bas (rubric)

Witness: Francisco Antonio Gonzales (rubric) Ysidro Sánchez (rubric)

[I] Joseph Montaño, resident of this Villa of San Felipe de Alburquerque, appear before your honor in the best form and manner in which I have a right and say that, having seen the document of Cristóbal Gárcia and it being my obligation to respond to it, he asking to take out an acequia through my lands, for which I gave him my permission to do so, with the agreement that I could have access to it, agreeing to help with the work to maintain it.  But he did not want to agree to this. I [then] objected to it because I recognized the great damage that could be caused by the acequia, where some of my sheep, chickens, calves, or even one of my sons through an accident, could fall into the acequia and drown, since the acequia which he plans to take out is so near my home. Cristóbal Gárcia did not want to be obligated to compensate me if any of the above accidents or damages occurred. I also was to partake in the use of the said acequia by irrigating whatever it was that I planted, being obligated to assist in the cleaning of the acequia, but not to the actual taking-out of the said, all of which was to be juridically agreed to according to both parties. Under these conditions, I agreed that he could take out the acequia without any issues arising during th e coming time period and without questions being asked, but agreeing to live in accord and compliance.

For all of this, I petition and ask that your honor be pleased to approve what I have asked for, as it is just that I should receive the mercy and benefit to which I swear in the proper form that this document is not done in malice, protesting the costs, but for what is necessary, etc.

Jose Montaño (rubric)

In this villa of San Felipe de Alburquerque on the 7th day of September, 1732, I, Captain Juan Gonzales Bas, alcalde mayor and war captain of the said villa and its jurisdiction, reviewed what was presented and contained within it, and ordered that a copy be given to Cristóbal Gárcia, resident of this villa, so that he, upon reviewing the response of Joseph Montaño, can respond to it within the time allowed by law, according to his right and in the manner that would be more convenient and favorable to him . I thus approved, ordered, and signed it with my assisting witnesses, acting as presiding judge, on the said day, month, and year, etc.

Juan Gonzales Bas (rubric)

Alcalde mayor

[I] Cristóbal Gárcia, resident of the this villa of San Felipe de Alburquerque, one of its original founders, appear before your honor in the best form according to my rights and say that, upon having read the response and charges that Joseph Montaño makes against me regarding that which I have justifiably asked for, and in response to the various clauses answer as follows.

Witness:
Joseph Gonzales Bas (rubric)

Ysidro Sánchez (rubric)

Alcalde mayor

[I] Cristóbal Gárcia, resident of the this villa of San Felipe de Alburquerque, one of its original founders, appear before your honor in the best form according to my rights and say that, upon having read the response and charges that Joseph Montaño makes against me regarding that which I have justifiably asked for, and in response to the various clauses answer as follows.

Regarding what he says about me seeing him in order to take out an acequia, I say that I, with proper respect, did ask him for permission to do so, indicating to him his right to use the said acequia and that he should benefit from its use. It is not as he says, that I had denied him the aforesaid. This is totally wrong, void, and false, and I prove it by what I stated before your honor at the house of Juan Griego on the 19th of the past August, when I told him that I would not disallow him to irrigate all of the lands which the acequia would cover. In addition, I told him that he did not need to assist in the taking-out of the acequia, but he would be obligated to assist in the cleanings which were required of the acequia, which is only right. The said Joseph Montaño is confused by saying that I denied him that right, when I was the one who brought up the issue; and not by saying that I denied him that right.

Regarding the charges in which he talks about the grave damages that can come about by me taking out the acequia, I responded that the most damage that can result is that he cannot make use of his lands by not consenting to its taking-out. It is not good to disallow this, as it is seen that others have taken out acequias through other person's lands, and there have not ever been any impediments, as I can offer evidence to prove this. As charges the charges regarding the calves, sheep, and chickens, which can be drowned, I say that the said Joseph Montaño is to give me the evidence that a chicken, sheep, or calf was drowned, leaving the said in the water, and to let me see how it was drowned (because due to his malice he will state that it so happened, in order to avoid my taking out the acequia), at which time I will judiciously pay him whatever he seeks for these and the other grave damages which occurred, excepting those which could happen to his children, as I do not know what they would be worth and thus would be left up to his mercy, if he can place a value on them. As such, I hope that he does not lose any children by being drowned. But why, I ask, should I be obligated to pay him for such, when others are not obligated to do so, as I have stated, when others have taken out acequias in other person's lands and neither they nor the owners are charged for anything. It is up to each one to care for what they have, hoping to avoid accidents, as nothing which they own is immortal.

This, senor alcalde, is what I have to respond, and as I have stated, I obligate myself (if it is consented by the said Joseph Montaño) to allow him to irrigate from the said acequia, assisting in the cleanings, but not in the taking-out, and not to have to pay him any damages as he asks. For all of this, I ask and petition your honor to do as I have asked, which is all within reason, and I swear in my proper form that it is not done in malice, but only to maintain, with much desire, my family which is large, protesting the charges, but for what is necessary, etc.
Cristóbal Gárcia (rubric)

In this villa of San Felipe de Alburquerque on the 20th of September of 1732, I, Captain Juan Gonzales Bas, alcalde mayor and war captain of the said villa and its jurisdiction, reviewed that which was contained in what was presented and argued, and I ordered that a copy be given to Joseph Montaño, resident of the said villa, so that upon him seeing the response and the charges made by Cristóbal Garcia, he can within three days respond to that which is convenient and in his favor. I thus approved, ordered, and signed it, acting as presiding judge with my two assisting witnesses due to the lack of a public or royal scribe , which there is none in this kingdom, on the said day, month, and year, etc.

Juan Gonzales Bas (rubric)

Witness:
Joseph Gonzales Bas (rubric)

Ysidro Sánchez (rubric)

Alcalde mayor and war captain

[I] Joseph Montaño, resident of this villa of San Felipe de Albuquerque, one of its original founders, appear before your honor in the best form which I have through my right and say that upon having seen the response of Cristóbal Gárcia say, first of all, that I am not confused in what I have stated, as the first time that he went to see me in order to take out the said acequia, he did not allow what I was planning to do with it. As from the very beginning, he agreed with my having conceded to it being taken out, but because he had denied me the use, I did not consent. If he had not denied me the use, I would have consented to having him take it out. But as he had denied me the use, as he had , I did not consent. Then later at the home of Juan Griego he agreed for me to have access to the acequia and would not agree to what he stated in the presence of the said Juan Griego, adding that in the coming summer he and his sons would do the work required for th e said ace quia . But I was not very confident in what was said. Secondly, upon being assured by the said Cristóbal Gárcia that from this time on they [we?] would live in agreement and accord with the said acequia, I allowed it to be tak en out. In regard to what h e states, that I maliciously was apt to put in the water anything that died, saying that it had drowned, afterwards charging him for what had died, I do not have such a bad conscience that I could do such a thing . As is already seen, as through his heart he accuses mine, particularly through the example of the acequia s as stated, he already has another acequia which run s through my land s and to which I did not deny him the right. It should be noted that the one which he wants to take out is very close to my home , thus the reason for the damages to be considered. There are other reasons which I have not to allow him to take out the acequia, one being that his son has had a disagreement with Juan Griego.

For the above reasons, I have been reluctant to allow him the right to take out the acequia, but if we can live agreeably and conform, sharing equally from the acequia, I will allow him to do so, juridically allowing him permission. As such, I ask and petition your honor to approve it as agreed, and I swear that this, my petition, is not done in malice but for what is necessary, etc .

Joseph Montaño (rubric)

In this villa of San Felipe of Alburquerque on the 30th of September, 1732, I, 6

Captain Juan Gonzales Bas, alcalde mayor and war captain of the said puesto and its jurisdiction, say that I took it as it was presented and in the manner that it was argued in their rights, and sent a copy to Cristóbal Gárcia so that he can respond to the charges

which are made by the said Joseph Montaño in this said document, compelling him to complete his argument, so that upon it being finalized, I can submit it to the superior government, or to sentence the case as required. I thus approved, ordered, and signed it acting as presiding judge with my two assisting witnesses due to the lack of a public or royal scribe, which there is none in these parts, on this said day, month, and year, etc.

Juan Gonzales Bas (rubric)

Witness:
Bernardo Vallejo (rubric)

Ysidro Sánchez (rubric)

Alcalde mayor and war captain

[I] Cristóbal Garcia, resident and founder of this said villa of San Felipe de Alburquerque, appear before the Christian and upright judgment of our majesty in the best and most proper form with which I come forth. And [I] say, that understanding everything, verbo ad verbum [word for word], that was spoken against me by Joseph Montaño, and not being charged with everything as was stated, I see that in the third point or clause, he allows me full power to proceed and begin the work of taking out the acequia, applying what the law orders that no one can do anything without the consent of the owner, which I have, as he has given me the permission to proceed with the work.

Your honor can proceed to make final the argument as is consented to by Jose Montaño in his response and to prepare a juridical sentence as is asked for by the said; and I will agree to it as he asks (as long as he does not put a stop to the permission). I will obligate myself to do the work of taking out the acequia, and will not require him to assist in any way. I will also take it upon myself to build a bridge so that his animals can go across it. This is not done by any obligation or custom, but only to live in agreement and conform and to avoid problems. I also obligate myself to the cleaning with his assistance, as he is a participant in the acequia, which obligation should be noted down juridically as the said wishes and as justice requires and is promised with full rigor to fulfill. For all of this, I ask and petition your honor to do as I ask so that everything is done right. I swear in my proper form that it is not done in malice but for what is necessary, etc.

Cristobal Gárcia (rubric)

Order of remission

In this villa of San Felipe de Alburquerque on the 9th of November, 1732, I, Captain Juan Gonzales Bas, alcalde mayor and war captain of the said villa and its jurisdiction, upon seeing the request of Cristobal Gárcia and the oppositions of Joseph Montaño, both residents of this villa and settlers of this kingdom, and the conclusions of both of their arguments being placed in the act of sentencing, with Joseph Montaño consenting to allow the said Cristobal Gárcia to take out the said acequia, with the stipulation that Cristobal Gárcia does not accept the damages, which could result from any accident that could be caused to Joseph Montaño , I submit the proceedings to the superior government, so that upon that review, the proper judgment will be made. I thus approved, ordered, and signed it, acting as presiding judge with my two assisting witnesses due to the lack of a public or royal scribe, there being none in these parts, on the said day, month, and year, etc.

Witness:
Joseph Gonzales Bas (rubric)

Ysidro Sánchez (rubric)

Final Decree

In this villa of Santa Fe, on the 12th of November, 1732, I, Colonel don Gervasio Cruzat y Góngora, governor and captain general of this kingdom of New Mexico and of its provinces, say that Captain Juan Gonzales Bas, alcalde mayor of the villa of Alburquerque and of its jurisdiction, has submitted to me the proceedings which he has completed in the case of Cristóbal Gárcia, resident of the said villa, against Joseph Montaño, also a resident of the same villa, requesting to take out an acequia through the lands of the said Joseph Montaño so that he can benefit from the irrigation of his lands. After going through a number of delays and opposition on the part of Joseph Montaño, he finally,after careful consideration, voluntarily consented to allow the said Cristóbal Gárcia to take out the acequia which he requested under the condition that they remain in agreement and Gárcia comply equally by sharing the said acequia.

He [Montaño] also desires a juridical agreement for the purpose of complying with certain conditions, for which reason and for the conclusion of these proceedings, I declare the following: that the said Cristóbal Gárcia is to take out the said acequia at his expense as agreed to by both parties and is also to build the bridge which he offers in his document, and as such both Cristóbal Gárcia and the mentioned Joseph Montaño are to benefit from the use of the said acequia. Both parties are in agreement to clean out the acequia without any dissensions or problems, with the proviso that whoever might cause a problem I will fine them in the sum of fifty pesos in reales, of which one-half will be immediately applied to the royal treasury of his majesty and the rest to the expenses of the judge. As to that which reflects upon the said Cristóbal Gárcia and his obligation of paying the damages which said acequia could cause to the stated Joseph Montaño, I declare and state that he is not obligated to pay them, as they are considered remote accidents that as such are not considered by executive justice. I thus determined, declared,and signed it with my assisting witnesses due to the lack of a public or royal scribe, which there is none in this kingdom. Santa Fe,

November 12, 1732.

Don Gervasio Cruzat y Góngora (rubric)

Gaspar Bitton (rubric)

Juan Antonio Unanue (rubric)