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The Mission Inn in Riverside, California, is a luxury hotel constructed in 1902 to evoke "the Old California of missions and ranchos," according to its promotional pamphlet. Consistent with this image, the builders filled an entire city block with arches, bell towers, flying buttresses, domes, fountains, wrought-iron balconies, and Tiffany stained-glass windows. An ornate, turn-of-the-century fantasy of Hispanic architecture, the Inn is completely unlike the unornamented adobe structures that existed in the Southwest before the Americans came.
Similarly, late nineteenth- and early twentieth-century state courts developed elaborate theories of water rights ostensibly based on Hispanic law, but which bore no resemblance to actual Spanish and Mexican legal traditions. Despite their awareness of the historical reality of communal water-sharing practices, American judges asserted that municipal and riparian water rights originating in the Hispanic period were absolute and exclusive.' These doctrines of absolute water rights, legitimated water monopoly and accumulation in the hands of a few cities and landowners. In some states, this version of Hispanic law persists: in 1975, the California Supreme Court reaffirmed Los Angeles's paramount "pueblo water right" to its local watershed on the basis of stare decisis, despite extensive trial court findings that the right had no historical basis.'
In contrast to the common law water regime of riparian and prior appropriation rights emphasizing individual property interests, a communal water system prevailed in the Hispanic Southwest. Legal historians of the Spanish and Mexican periods have shown that far from being absolute and exclusive, water rights were shared between municipalities and other users, especially in times of shortage. This communal water system also restricted the private sector, for riparian owners did not automatically have the right to irrigate their own property, but needed an express or implied grant of water in addition to land. These communal water use patterns can be traced back to regional sharing arrangements in medieval Spain and are still practiced in parts of the contemporary Southwest. Based on this historical evidence, many scholars of western water law in the American period have criticized nineteenth- and twentieth-century state courts for distorting Hispanic traditions. However, the legal historians who have attempted to explain this distortion have attributed it to a judicial "loss of Hispanic learning" or to parties failing to present documents on Spanish and Mexican water law to the courts. None of these scholars has examined the contemporary background of the key nineteenth- and early twentieth century cases to evaluate the context of these decisions, and none has researched court files to determine the extent to which judges knowingly misused Hispanic law.
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