The First Observation: A General Precariousness

Litigants, both Spanish and indigenous, who sought to defend their land rights, generally performed assurance. They described their long-standing relations with the land and pretended that these had existed since time immemorial and were known and accepted by all. Litigants also insisted that it was impossible to doubt their entitlements, and that those who did, did so in bad faith and without fearing god and royal justice (con poco temor de dios nuestro señor y menosprecio de vuestra real justicia).⁴ They presented challenges to their rights as a world upside down, and as the end of the pacific and legitimate exercise of rights and the beginning of chaos. The natural order of things supported their vision, and challenges were the exception rather than the rule.

These visions were often reinforced by narratives regarding the long, almost intimate, persisting ties between people and their land. In these narratives, the land was not an abstract commodity with a certain extension or even a precise location. Instead, it was an entity, that is, a unit that had a name and an identity.⁵ It was a whole that could not or should not be dismembered, and with whom the interested parties were said to have personal relations.⁶

Yet, despite these claims, historical records show that relations with the land were highly volatile. Several were the reasons. First and foremost, in that legal universe, property rights the way we imagine them today were utterly lacking. Instead, land rights were profoundly contingent and communal.⁷ According to contemporary thought, initially, the land was given to all humans, though sometime in a mythical past, parts of it had been assigned for the exclusive use of individuals and communities. Assignation, however, was conditional. The land could be held only as long as these individuals and communities used it. If they did not, then it could be taken away and reassigned to others.

The contingent status of all land rights and their dependence on use was clear in contemporary records. Though mostly spelled out with regards to indigenous land, where it was commonly argued that the holders only had “precarious use, without action of property” because these lands were “subjected to the right of reversion”,⁸ this rule applied to everyone, Spanish individuals and communities included. It reproduced the idea that the land was essentially common and that it was granted in privative use only as long as members not only enjoyed rights but also complied with duties, here the duty to cultivate the land.

The assignment of land rights -never property rights only usage rights- and the duty to use the land, explain many of the developments that historians of Spanish America have observed, for example, processes of composición.⁹ These processes were comprehended in the past as instances that allowed the king to sell land for profit, yet, in reality, composiciones were administrative procedures that sought to discover whether individuals pretending to have usage rights were indeed entitled to them. Composiciones expressed royal duty to administer communal property by granting, refusing to grant, or revoking the grant, of rights. The lands the king administered and that he could assign for individual or communal use were identified in archival records as realengas. Despite references to them as “royal,” realengas were not royal land. Instead, they were lands under royal jurisdiction.¹⁰ They were distinguished from other lands administered by municipal bodies or encomenderos. This distinction hinged not on the question of who their proprietor was (they belonged to the community), but of who would administer them. While realengas would be administered by the king, other lands would be administered by the authorities of the community, or by those in a position of power, such as nobles in Europe, and sometimes encomenderos in Spanish America. And, while we might intuitively believe that royal jurisdiction guaranteed order -after all, the king was by definition just- the multiple meanings assigned to realengo in common parlance demonstrate the contrary. Rather than orderly, realengo was often associated in contemporary thought with the lack of a proper owner, and designated something which was idle, unattached, free, abandoned, or in a state of disorder.¹¹ In other words, at least with respect to assigning land rights, the king was not a great administrator.

Royal officials who conducted composiciones thus verified if the usage of the land was authorized by the king, and levied penalties when royal permission was lacking. Yet, both recognition of rights and penalties did not grant ownership to those in possession of the land. Instead, they sanctioned the right to use the land, a right that was still conditioned by continuous exploitation, the grants automatically ceasing (at least in theory), if such was not the case.¹²

Campaigns to verify usage rights (composiciones) could be initiated by the royal or local authorities, who considered them a source of revenue -the king had to be paid for the license to use the land to be issued- but they could also be initiated or desired by those holding the land, who generally hoped that obtaining a royal license would protect them against potential dispossession.¹³ Yet, because usage rights were always contingent rather than permanent, most composiciones failed to produce the certainty that the interested parties hoped to obtain. As the situation on the ground constantly mutated, so did usage rights and, as a result, even those who received a license in the past could be deprived of it later. One composición could easily follow the other, often producing -what historians have identified as- contradictory results.

When those administering land rights, or the interested parties, reached the conclusion that those pretending to have rights did not sufficiently use the land, it could be declared “vacant.” Returning to the pool of plots that the king could administer, this land was again identified as realenga and could be redistributed.¹⁴ As a result of these structures, most conflicts regarding land rights involved the question whether the land was free, or whether rights over it were already granted to a person or a community who used it continuously.¹⁵ To answer these questions, those suggesting that the land was free either because undistributed or because abandoned, usually found it easiest to argue that the state of the land itself demonstrated that such was the case. To do so, petitioners mentioned the visible lack of care, or the presence of wild or ferocious animals, which was comprehended as a sign for abandonment.¹⁶ Indirect circumstantial evidence was also proposed, for example, the observation that the land was remote and therefore necessarily abandoned. Questions were also asked regarding its possible users. Were they young or old, female or male, capable of agricultural labor or perhaps occupied in other offices?¹⁷ Equally debated was the question of what happened when the person having rights was old and/or poor and therefore could no longer use the land?¹⁸ Did these conditions automatically imply abandonment, or were his rights left untouched because the lack of use was involuntary, and was not accompanied by the intention to renounce rights? Lands could also be classified as vacant because their previous users were said to have perished without having known heirs or without leaving a valid testament.¹⁹ As “things that belong to no one”, they could (and had to) be reassigned by the king (^{Cerutti, 2007}).

In their portrayal of abandonment, interested parties also used several key terms that were supposed to be telling. It was as if, once these terms were invoked, nothing else needed saying. A land identified as mountainous (montañosa) or monte, or classified as yerma or erisa, was one such case.²⁰ Similarly, unused lands were titled wasteland (baldías) or even abandoned lands (desamparadas) and as such were considered vacant.²¹ Looming at the background was the conviction that, even in the absence of proof, it was possible to assume that these lands had never been distributed because most would have considered them useless and would show no interest in exploiting them. As powerful was also the idea that, even in the late 18^th century, it was still possible to discover “new lands” that had never been inhabited or used. Paradoxically, these assertions could easily be accompanied by the indication that the “recently discovered” land nevertheless bordered with existing farms or had immediate neighbors or could be located next to an indigenous community.²²

Those claiming rights over not-yet-distributed or abandoned land tended to justify their requests by invoking both private and communal interest. They pretended to need the land for their survival, and the survival of their families, or for tax payment, but they also mentioned the protection of royal interests and the common good. After all, the reassignment of rights allowed the royal treasury to receive certain fees, but it also assured economic improvement, as it converted abandoned land into useful land. By the 18^th century, the struggle against uncultivated land would also be described in moral terms as a struggle to impose civilization on barbarism and chaos. Alongside came the argument that petitioners were the correct persons to remedy this state of affairs, as they were both able and committed.

Yet even after they were assigned, re-assigned or appropriated, land rights continued to be extremely precarious. Conflicts regarding who could use the land were often both ancient and repetitious and could easily happen with almost a certain regularity every several years, with a favorable decision not necessarily ensuring that there would be no additional challenges in the future, sometimes by the same party, sometimes by others, sometimes in the same generation, sometimes in later periods. On occasions, both conflict and the lack of clarity could be explained by precarious or infrequent use, which led to doubts or even oblivion.²³ On others, clarity seemed to have lacked from the beginning as, often, parties to land conflicts could not agree on whether certain lands had been received in inheritance, or were included in a certain land grant, which were their boundaries or even where they were located.²⁴ The lack of clarity could be such that, called to resolved such conflicts, magistrates could be reduced to implementing decisions based not on the particular circumstances of the case but on the “customary extension” or the “customary belonging” of land plots.²⁵

These continuous challenges required that litigants certify not only how they obtained the use of the land but also how did those who preceded them. This often implied remembering previous transactions, in theory, all the way back to the first possessor as, to produce a just title (justo título), all these past transfers had to have been done correctly. As a result, if the land was first assigned by a cacique who sold land (usage) rights to a plot that was not under his jurisdiction, or that he could not assign, then everything that had transpired since was invalid, and nothing could be pretended.²⁶ For precisely this reason, when meeting a challenge, purchasers often demanded that previous users personify in the courts and defend their entitlements.²⁷

Because going back in time to the first assignment was difficult, not to say impossible, parties to land disputes often argued that their rights were based on immemorial possession. It is possible that most were ignorant of how and why immemoriality operated, yet they were all aware that its invocation was a powerful tool. Jurists understood immemoriality to be a legal presumption, that is, a juridical mechanism allowing to claim certain things without having to prove them first.²⁸ Presumptions were usually adopted in hard cases, where the need to solve a certain situation was important, but relaying on actual proof was impossible. Not only was immemoriality a presumption, that is a rule that solved cases in which knowledge was utterly lacking and evidence did not exist, but it was also a special presumption that did not admit proof to the contrary (such a presumption was called in Latin praesumptio juris et de jure). That is, regardless of what was known or ignored, and even regardless of evidence that contradicted the presumption, the facts that were allegedly immemorial could not be juridically questioned.

To establish that the possession of rights was immemorial, all that the parties had to do was to argue that such was the case. Claims for immemoriality were often accompanied by the allegation that those holding the land suffered no opposition and that this silence demonstrated the justness of their cause.²⁹ These allegations referenced yet another juridical presumption, based on a commonsense observation according to which those suffering challenges to their rights usually protested. As a result, if they did not, the conclusion jurists adopted by way of presumption, was that either no one was hurt by what had transpired, or these suffering challenges implicitly agreed to abandon their rights (^{Herzog, 2024a}). Silence, in other words, constituted juridically a proof for consent.

Together, these juridical mechanisms could easily transform those who could not prove their rights into legitimate possessors of the land. They allowed them to argue that the situation at the present time should continue simply because no one knew or remembered a previous time, when other claimants existed.³⁰ Adopted by jurists in order to solve cases that would otherwise be impossible to determine, the combined operation of these presumptions also helped conserve the status quo, another mission that late medieval and early modern jurists sought as their own. Perhaps unaware of how well they were defended by these presumptions, petitioners often sought to excuse their inability to supply evidence. They explained that it was normal not to have proof of their entitlements given the passage of time. They suggested that, as was well known, records were consumed over the years, and actors often did not take sufficient care to guard them. Interested parties could also mention fires that consumed their houses, or the seizure of town records during rebellions, or wars.³¹

On occasions, lacking the correct documentation, the parties attempted to replace it by supplying alternative records, such as the land being included in a testament, or it being auctioned for debts. Some litigants requested authorized copies of existing documentation so that their rights would not be questioned in the future.³² Others petitioned to receive a mandamiento de amparo, which was a judicial decision that included an injunction (an amparo). Rather than acknowledging their rights, the injunction mandated, theoretically as a temporary measure, not to change the status quo.³³ As precarious and as partial as it was, amparo often served as a powerful tool if not for recognizing rights, at least for bestowing the right not to suffer immediate challenges.³⁴

The end result of all this, as the Corregidor of Chimbo argued in 1784, was the presence of “infinite conflicts” regarding land rights that were very difficult to resolve.³⁵ The Corregidor explained that the frequent inability to decide who had a better right resulted in arbitrary decisions. This, he argued, justified his order that prohibited the sale and purchase of land rights in the future, and that threatened local judges who had authorized them with punishments, venders with the loss of the payment they had received, and purchasers with the loss of possession.

A Second Observation: Family and Community

Many litigants argued their case by mentioning the rights of their forefathers, near or remote. They pretended to succeed their parents or, often, grandparents and great grandparents.³⁶ Or, they suggested that “since very ancient times this land passed from fathers to sons in continuous succession”.³⁷ This implied that litigants involved in land conflicts were required not only to show their land use but also to prove legitimate filiation or, alternatively, to show that family relations were recognized in a testament, which in the absence of other proof, could act to legitimize both the possession, and family belonging.³⁸ To sustain such claims, on occasions, litigants expressed their vision of both what a family was, and who had the right to inherit. For example, in 1780 Tomás de Cepeda argued that the person currently using the land had no right to it because he was the grandson of Bernardo Guerrero, but the lands belonged to Guerrero’s wife, who was not his grandmother.³⁹ As a result, once the wife died without ascendents nor descendants, nor known heirs, nor had written a will, the land use belonged to no one and the pretended heir, who was not part of the family, had no rights at all.

Though family relations were clearly important to explaining land rights, even more common were references to membership in the community. These references centered on three issues: what was a community, which were communal rights, and who were communal members. Discussions regarding communities demonstrate that, while we tend to imagine that communities had commons, contemporaries often established these relations on the inverse, believing that commons made communities rather than communities made commons. For example, it was generally argued that settlements that lacked commons or their commons were useless, could not be considered a “proper” community. According to this vision, the possession of communal land enabled communal life, including the participation in social, religious, and political activities.⁴⁰ Without commons, this would be impossible. The lack of commons also disabled communal life in other ways as, without commons, members would be scattered geographically and would be constantly on the move, begging for their livelihood.⁴¹ The use of commons, in other words, both enabled community life, as well as allowed individuals to settle in the community permanently, participate in communal life, and be employed in agriculture pursuits.⁴²

Archival documentation thus testifies that the use of commons during various generations was often understood as a manifestation for the existence and continuity of the community. Among other things, this use enabled both economic survival and the formation of identities, including the cultivation of communal memory and an ongoing relation with ancestors.⁴³ Often considered as an inheritance received from the past, the commons were an important asset that had to be kept intact for the benefit of future generations.⁴⁴

The existence of proper communities thus hinged on having communal land. Yet, the question of how to identify communal lands haunted contemporaries. The default answer was often that the land was communal rather than individual. To attest that such was the case, no proof was needed. It was sufficient to observe the law.⁴⁵ Afterall, the right to have commons was absolute, either because royal instructions so mandated, or because in practice all communities did receive common land.⁴⁶ As a result, no other rights, including individual rights, could exist where the commons were located. Those who disagreed with such statements argued on the contrary that, unless there was concrete proof for entitlement, the land must be considered free.⁴⁷ Concrete proof could be demanded because it was logical to assume that communities guarded their titles and would be able to produce them when required. The lack of proof could therefore be construed as evidence that the community had no rights.⁴⁸

While many litigants focused on the question of whether the community had received communal lands, others engaged with another aspect, namely, whether the lands received should be conserved if and when they were no longer needed, or if and when they were no longer used. Insisting that the assignation of land was always reversible, interested parties affirmed that lands granted as commons could be taken away and returned to the king who could reassign them if they were no longer necessary or they were no longer used.⁴⁹ While usage could be attested by observing the terrain or in other ways described above, deciding on necessity required observing the community. For example, if communal membership has dwindled, the number of members smaller than it had been, there were good reasons to revise the allocation and relinquish the part that could be viewed as superfluous (sobras).⁵⁰ While for some litigants at stake was the number of persons living in the community, for others, need depended on whom they were.⁵¹ Were they able to work the land? Were they present or mostly absent? Were they prone to work, or only pursued their leisure?

When land granted to indigenous communities for their use was considered unnecessary, litigants argued that those who continued to hold to it committed usurpation (usurpación), which harmed the royal treasury and the community at large.⁵² They pretended to have denounced (denunciar) this usurpation because it was both illegal and harmful.⁵³ While many such denunciations came from individuals who wanted the land and requested it be reassigned to them instead, on occasions, the Spanish authorities pretended to have noticed usurpations and acted upon them because of considerations of common good. Such was the case, for example, in 1783 when the corregidor of Guayaquil argued that the village of Baba had no more than 200 members but that, besides the legal one league of commons, it had plenty of additionally “precious” land (tierras preciosas) for cultivation and pasture. According to the corregidor, even the one league mandated by royal orders was in reality too much because of the 200 inhabitants, only 33 paid tribute, which in theory indicated that only they were able to work (eran hábiles para el trabajo).⁵⁴ If this was not enough, next to their village was another one that also had a league of commons. It would be advisable, the corregidor concluded, to combine both villages and assign them both a single league. The present situation, he argued, not only left the land unattended and unused, but it also enabled locals to live a life of leisure (ocio) rather than work. The corregidor also complained that similar observations could be made regarding many other villages of the jurisdiction, a situation that clarified why the province was poor and depopulated. While it was important to grant indigenous communities and individuals sufficient land to survive, there was no reason to give them a large territory that they could and would not want to work and that others could profit.⁵⁵ Nor should they be able to sell what they did not need because all the law allocated to them was the right to occupy the land by using it (ocupar útilmente) not pretend to be its proprietors (dueños).

In many of these discussions, the burden of proof was not on the party that claimed abandonment, but on those who wished to conserve their possession.⁵⁶ On occasions, the indigenous inhabitants were asked to agree to the loss of their land. In one such case, transpiring in 1675, the president of the audiencia of Quito ordered to gather the members of an indigenous community during religious instruction (doctrina) and inform them of the request to reassign parts of their territory.⁵⁷ A minister then visited the village and, having concluded that it indeed had superfluous extension, requested (and received) the consent of the local indigenous leaders (principales) to the reassignment. Though we have no way of knowing whether this consent was free or coerced, we do know that indigenous communities often contested such conclusions arguing that the redistribution of the land was in fact a violent dispossession (violento despojo).

While deciding which communities existed and whether they had commons which they used and needed was essential, identifying communal members was equally important, as only they could benefit from the commons, which non-members could not. The members were said to hold the land jointly by agreement (in mancomún). They could use it together (for example, by all of them letting their animals pasture on the same territory), or the authorities could distribute the commons into plots of privative usage assigned for individual members who would cultivate these plots and have exclusive rights to them during a certain period.⁵⁸

Perhaps because they were charged with administrating communal land, caciques were frequently accused of treating communal lands as their own, by giving them in inheritance to their offspring or selling them to outsiders.⁵⁹ Various caciques writing in 1792 complained against such practices by their predecessors in previous centuries. The ancient (antiguos) caciques, they argued, were “absolutist men who considered the members of their community a hindrance.”⁶⁰ Acting capriciously, they sold communal land, sales that the present caciques asked to reverse because they were illegal.

Though presenting such behavior as clearly abusive, distinguishing lands held by caciques from those that were communal, was not a simple affair. Colonial documentation employed a variety of legal formulations to refer to communal lands. During the early colonial period, it was possible to imagine that, like the king, caciques had as their own (tenía por suya y como suya) both the land and the people, of whom they could dispose of as they wished.⁶¹ Or, alternatively, that, also like the king or the nobility and sometimes encomenderos, caciques had jurisdiction over the land, and could assign its use to individual members.⁶² Or, it could be assumed that caciques held the land and passed it to their heirs with the intention that it remained communal and that the heirs would defend it, as they did.⁶³ According to some contemporaries, usage rights granted by caciques to community members could be given permanently and be inherited; according to others, they were temporary and personal and persisted only as long as the cacique was still in place and the person to whom these lands had been assigned was still alive.⁶⁴ After both had died, the land automatically returned to the common lot and could be reassigned. Also asked was the question of which was the correct procedure for land sales by caciques. Could caciques sell communal land rights without the agreement of all community members, or must all members consent (and perhaps participate in the revenue)? Sometime, lands were classified as belonging to “the cacique and his subjects.” On other occasions, they were identified as part of an entailed estate belonging to him in person.⁶⁵

While the sale of commons could lead to protests, sometimes at stake was not the sale itself but the identity of the seller or purchaser. Was the seller indeed the cacique and could he legitimately take decisions for the community?⁶⁶ Could, for example, someone who was native of the village, but whose father was a mulato, be a legitimate cacique, or did he impose himself as such without having the right to do so, and could therefore not take decisions that would bind the community, among other things, by selling its land usage rights?

The identity of purchasers was just as important. Was the land sold to communal members or outsiders, including individuals classified in the records as mestizos, negros and mulatos who were not only foreign to the community but also persons who should not reside there, nor enjoy usage rights in the commons?⁶⁷ And how should one verify whether purchasers were indigenous (as they pretended) or mestizos (as community members attested)?⁶⁸ What would happen when an indigenous woman, member of the community, married an outside, classified as a mestizo? Could he inherit her rights or were her usage rights limited to her lifetime or, at least, to successors who were also indigenous and members of the community?⁶⁹ Particularly troublesome, according to the records, were cases in which communal lands were rented or sold to “whites” (sic) who resided in the village (when they should not have been allowed to do so). Some litigants also insisted that the privative use of communal land should be limited to the lifetime of the grantee or could pass in inheritance only as long as heirs were also members of the community.

Indigenous individuals who protested these sales often argued that because they were not favored by the caciques, they were left without usage rights. They demanded to be given their fair share of the use of communal land and insisted that this was what the law instructed. Any other solution would be absurd because it would allow, gradually, the elimination of communal land, which would gradually accumulate at the hands of nonmembers.⁷⁰

If, on the one hand, only legitimate caciques could sell or divide communal land, and if only communal members could inherit or be assigned its use, on the other hand, ties between rights and membership also operated on the inverse. On multiple occasions, exercising the right to use the commons allowed individuals to claim status as members, while those who lacked access to the commons could easily be classified as outsiders (forasteros).⁷¹ The relations between usage right and membership was also evident in other ways. To substantiate their rights, those who wished to make use of the land often built a house.⁷² Or, alternatively, they argued that their possession of the land was clear because they already had a house, where they had resided for many years.⁷³ Yet, while the building or the residence in a house could easily be comprehended as an act of possession taking, it was also an act of establishing membership in the community (avecindamiento). Such was the case because, to become a member, it was necessary to reside in the community with the intention to remain there, and building and inhabiting a house, most particularly, an “open house,” or “populated house” (casa abierta or casa poblada), where the family also resided, was generally understood to be an excellent proof for such an intention.⁷⁴ In order to take possession of the land, as well as in order to become a member, the house had to be fit for habitation (casa de vivienda), and be clearly distinguishable from other structures instead meant for animal keeping or for momentary refuge. The house having a corridor and a proper thatched roof could be proof of the intention to reside. So would having a vegetable garden, or a wall demarcating the property (cercado).

If conditions for taking possession or land rights and becoming a citizen were in fact identical, contemporary terminology further proved the close association between possession taking and membership. They identified the act of possession as an “entry” (entrada), a term often used to denote conquest, and challenging it as de-population (despoblado), a term that usually affirmed that the place was not only uninhabited but also lacking a proper community.⁷⁵ Because conditions for possession taking and avecindamiento were similar and could be accomplished by the very same act, those who wished to deny the possession or membership of others often moved to destroy or burn the houses they built, or where they resided, making them unhabitable.⁷⁶ Alternatively, those whose house had been abandoned after fire feared that the lack of temporary habitation, however justifiable it might be, would be understood as abandonment of both land and membership.⁷⁷

The fear that the construction of houses would indeed prove both land rights and membership and the wish to curb such pretensions was often clear in orders that prohibited Spaniards, for example, from building houses on lands located in indigenous communities, where they were not supposed to reside, nor become members. This explained why in 1698 Captain Juan Cerezos needed a special permission to construct a house in Daule, an indigenous community in the jurisdiction of Guayaquil.⁷⁸ According to his version, he resided in Guayaquil, but had land usage rights in the village. Because the village was distanced from where he resided, to ensure that he and his family could hear mass and receive sacraments in Daule, which they habitually did, it was vital that they had a house there. This was particularly important in the winter when the roads from Daule to Guayaquil were dangerous, especially for his wife and children. His aim, he argued, was no other. The authorities allowed the construction of the house yet under the condition that it would be outside the village, that he would reside there only when he was present in Daule to hear mass, and that he did so without disturbing the indigenous inhabitants, warning him that if the indigenous inhabitants would complain against him, his family, or his servants (criados), the house would be immediately demolished.

Thus, while on many occasions the presence on the land, even its use, could be tolerated, what could not be tolerated was the construction of a house.⁷⁹ A house was dangerous because of what it could come to symbolize and what it could allow to acquire: not only land rights but also membership. The fears that such would be the case were not farfetched: the documentation shows that, on occasions, allowing someone to temporarily build a house on the land was indeed risky as, thereafter, the heirs could claim that the land was theirs and/or that they were members of the community.⁸⁰

Given the close ties between land use and membership, it is not surprising that, on occasions, those who represented indigenous communities complained against members who collaborated with rivals, when it was expected that they would be loyal to the community.⁸¹ Membership in the community, of course, could also protect locals by allowing them to recruit witnesses who would be favorable to their cause and could attest to what “usually happened,” or to a long communal memory regarding the possession of rights.⁸² The tying of land rights to membership was such that, on occasions, litigants had to justify how they came to use land in a community to which they did not belong.⁸³

Conclusions

Although historians have placed private property at the center of the colonial enterprise and most focused on investigating how it operated and on stressing the differences between Spanish and indigenous practices, contemporary documentation testifies that both Spaniards and indigenous peoples related to land in ways that were not radically dissimilar. Rather than private property, they debated the right to use the land; rather than concentrating on the rights of individuals, they centered on the rights of families and, most importantly, of communities and their members. Here and there, commons were the norm, and privative use of the land was considered by definition conditional. Conflict over land thus mostly involved situations, in which individuals used the land, with or without contestation, with or without rights, for a short or a long period, until others wished to do the same and confrontations took place. Contestation often confronted individuals, but they were mostly anchored in allegations that some protected communal land, while others abused it.

In colonial Spanish America, land rights were extremely precarious and depended on constantly showing who used the land and on demonstrating that this use was both necessary and sufficient. The civil regime of property that was instituted did not entail the presence of private property. Instead, as was often the case in Europe, it upheld the pervasive persistence of lands that individuals could use, exclusively or with others, permanently or temporarily, because they were members of the community.