Water Rights Registration: Key Distinctions & Processes

Water Use Rights vs. Organization Membership Registration

When referring to registrations, both primary and derivative, a distinction was made between those concerning the right of use as such or the rights of a member in a user organization, and those related to a user organization itself.

Note that within the first case, two kinds of situations were sub-distinguished:

1. Concerning the right to use itself.
2. Concerning the rights of a member within a user organization.

Why this sub-distinction? Because there are entries made in the Land Registry of Water that are not the right to use itself (formerly known as a water grant or 'merced') issued by the authority.

These entries pertain not to the right to use, but to the rights of a member within a user organization, as noted in the classifications above. They originate from two completely different situations:

• First (older): Derived from primary registrations conducted before the validity of the 1951 Water Code (CA), stemming from the Canal Associations Act of 1908. These involved the shares ('regadores', later called actions) held by respective members of an organization. This was their registered title, subject to property registration rules by express provision of the aforementioned law. In this case, there is indeed a registered title, a registered right, and the possibility of acquisitive prescription.
• Second (more recent): As per Article 114 No. 8 (discussed previously). Here, we witness an original registration stating that someone owns X shares, rather than stating ownership of a specific water use right. In this scenario, some (including myself) doubt whether this constitutes genuine registered possession. This situation also creates the possibility of double registration.

The 1981 Water Code, in Article 118, last paragraph, imposes a special duty on the Registrar (Conservador) aimed at preventing not double registration itself, but its harmful consequences. The Registrar must note in the margin of the primary registrations of a user organization any entries of transfer or transmission of rights that are made. However, these marginal notes sometimes cannot be fully executed when the registration of the transferred or transmitted water use rights fails to mention the organization to which they belong.

On this topic, I cited a Supreme Court (CS) ruling regarding a double registration issue in the Aconcagua area.

Primitive vs. Original Registration Explained

Why did I speak of primitive registrations?

The clearest example is Article 114 No. 4: the deeds (escrituras) which contain the granting of a right to use... In fact, a more appropriate name might be originating registration. Why not use it?

Because Article 119 uses the term 'originating registrations' to refer to a special class of registrations, now superseded by the same code's system. These were the registrations required for members of canal associations under the 1908 law to practice and transfer their rights. If one examines the text of Article 119, it is almost identical to the Rules of the Canal Associations Act, which was also copied almost verbatim into the 1951 Code.

Today, aligning with the 2005 reform, we could perhaps say that the originating registrations referred to in Article 119 correspond to those that must be practiced under the provisions of Article 114 No. 8.

The Role of the Cadastre in Water Rights

When studying the perfection (improvement) of water use rights, we saw that part of the process involved formulating, through a judicial procedure, the full description of the right, detailing all its essential or defining elements ('notas tipificantes'), especially when such details are missing.

This truly complementary description of the title is registered in the Cadastre. However, the law says nothing about this information being noted in the margin of the corresponding registry entry. This omission violates the legal principle of publicity inherent in the registry system, which I believe is pertinent to highlight.