The University of Texas Publication No. 4134 September 8, 1941 THE INTERNATIONAL BOUNDARY COMMISSION UNITED STATES AND MEXICO By CHARLES A. TIMM Professor of Government Bureau of Research in the Social Sciences PUBLISHED EIY THE UNIVERSITY OF TEXAS AUSTIN Additional copies of this publication may be procured free of charge from the University Publications, The University of Texas, Austin, Texas. The University of Texas Publication No. 4134: September 8, 1941 THE INTERNATIONAL BOUNDARY COMMISSION UNITED ST A TES AND MEXICO By CHARLES A. TIMM Professor of Government Bureau of Research in the Social Sciences PUBLISHED BY THE UNIVERSITY FOUR TIMES A MONTH AND ENTERED AS SECOND·CLASS MATTER AT THE POST OFFICE AT AUSTIN, TEXAS, UNDER THE ACT OF AUGUST 24, 1912 The benefits of education and of useful knowledge, generally diffused through a community, are essential to the preservation of a free govern­ment. Sam Houston. Cultivated mind is the guardian genius of Democracy, and while guided and controlled by virtue, the noblest attribute of man. It is the only dictator that freemen acknowledge, and the only security which freemen desire. Mirabeau B. Lamar. CONTENTS PAGE Table of Abbreviations_ __ _________________________________________________________________ ___________ 7 Foreword --------------------------------------------------------------------------------------------------------11 Preface 13 CHAPTER ONE Introduction 17 1. Nature of the Boundary·---------·-------------------------------------------------------------------------------17 2. The Problem ------------------------- ------------------------------------------------------------------------------------19 3. The Plan --------------------------------------------------------------------------------------------------------------------19 CHAPTER Two The International Boundary Commission -------------------------------------------------23 1. The Antecedents of the Commission ________ _________----------------------------------------------23 2. Establishment and Later History of the Commission --------------------------------------25 3. Organization of the Commission ---------------------------------------------------------------------------29 4. Rules and Regulations________________________________ ________________________ __ __________________________________ 32 5. Procedure ------------------------------------------------------------------------------------------------------------------34 CHAPTER THREE Legal Bases of the Commission's Powers -------------------------------------------------38 1. Powers under the Treaty of 1889 -------------------------------------------------------------------------38 2. Powers under the Treaty of 1905 -------------------------------------------------------------------------40 3. The Treaty of 1933 ---------------------------------------------------------------------------------------------------44 4. The Treaty of 1906 -------------------------------------------------------------------------------------------------51 5. Special Instructions and Statutes-------------------------------------------------------------------------51 CHAPTER FOUR The Commission's Powers as Applied: Treaty of 1889 ________ __ _________________ 57 1. Interpretation of Powers According to the Language of the Negotiators ___ 57 2. The Commission's Powers in Practice ____________________ ---------------------------------------------58 CHAPTER FIVE The Treaty of 1905: Practice and Procedure of Banco Elimination 71 1. Introduction -----------------------------·--------------------------------------------------------------------------------71 2. Negotiation of the Treaty of 1905 ···-·--------··-··----------------------------------------------------------71 3. The Work of Elimination of Bancos ---------------------------------------------------------------------75 4. Procedure and Problems in the Elimination of Bancos -------------------------------------80 5. Conclusion ------------------------------------------------------------------------------------------------------------------90 CHAPTER SIX The Legal Nature of the Commission's Powers As Applied: Treaty of 1905 ----------------------------------------------------------------------------------------------------92 1. Relation of the Commission to Banco Elimination -------------------------------------------92 2. The Legal Nature of Banco Elimination _-------------------------------·---------------------------103 CHAPTER SEVEN The Relation of the Commission to Private Titles and Domestic Courts 115 1. Relation to Private Titles --------------------------------------------------------------------------------------115 2. Relation to Domestic Courts______________________________ _____ ______ _______________________________________ 124 The University of Texas Publication CHAPTER EIGHT PAGE The Case of El ChamizaL___________________________________________________________________________ 132 1. History ----------------------------------------------------------------------------------------------------------------------132 2. Arguments Presented in the Chamizal Arbitration -------------------------------------------141 a. Non-Retroactivity of the Treaty of 1884 -------------------------------------------------------141 b. Fixed Line Theory___________________ __ ______ _ _____________ _ ____ _ _______ __ _________________________________ 147 c. Analysis of the Question of Rapid Erosion ---------------------------------------------------161 d. Prescription --------------------------------------------------------------------------------------------------------167 3. Is There a Solution?--------------------------------------------------------------------------------------------------169 CHAPTER NINE The Problem of Apportionment and Control of Boundary Waters ___ _____ __ 175 1. Introduction --------------------------------------------------------------------------------------------------------------175 2. The Upper Rio Grande -------------------------------------------------------------------------------------------176 3. Early Efforts to Secure an Agreement Regarding the Colorado ---------------------190 4. Early Efforts to Secure an Agreement on the Lower Rio Grande -----------------196 5. The Problem to the Present_ __________________________________________________________________________________ 197 6. Flood Control Projects_______________ __ ____________________________________________________________________________ 214 7. International Practice on Diversion from Boundary and Interstate Streams 220 CHAPTER TEN Summary and Conclusions ---------------------------------------------------------------------------224 1. Summary --------------------------------------------------------------------------------------------------------------------224 2. Comparisons, Contrasts, and Conclusions -----------------------------------------------------------229 APPENDICES I. The Treaty of Guadalupe Hidalgo (extract) ------------------------------244 II. The Gadsden Treaty (extract) ____________________________________________________ 246 III. The Treaty of November 12, 1884 (extract) ------------------------------248 IV. The Treaty of March 1, 1889 (extract) ______________________________________ 250 V. The Treaty of March 20, 1905 (extract) ------------------------------------252 VI. The Treaty of May 21, 1906 __ ------------------------------------------------------255 VII. The Treaty of February 1, 1933, and Annex -----------------------------257 VIII. Rules and Regulations of the Commis~ion ---------------------------------264 IX. List of Bancos Eliminated ____________________________________________________________ 266 X. Bibliogra phy ________________________ ______________________ __________________ __________________ 269 XI. Map: Relative Positions of Rio Grande near El Paso Between 1852 and 1907 ________________________ _______ ______________________ _______following 280 XII. Map of the Rio Grande, El Paso-Juarez Valley Rectification Project ------------------------------------------------------------------------!allowing 280 XIII. Map of the Rio Grande Valley Gravity Canal and Storage Project -----------------------------------------------------------------------!allowing 280 Index ---------------------------------------------------------------------------------------------------------------281 LIST OF MAPS AND CHARTS PAGE Projects of the International Boundary Commission ___________________ _______________________ f acing 29 International Boundary Commission, American Section: Organization Chart ________ _ -----------------------------------------------------------------------------------------------------------------------------------facing 31 Comision Internacional de Limites y Ag uas, Secci6n Mexicana: Organization Chart ----------------------------------------------------------------------------------------------------------------------------------facing 32 The Rio Grande, El Paso to Gulf of Mexico________________________________________________________ _ _Jacing 71 San Lorenzo Banco Number 302 -----------------------------------------------------------------------------------------98 The Rio Gr ande Basin_______ __________________________________________________________________________________________________ _ 177 Colorado River Basin________________________________________________________________ ______________________________________________ 191 Relative Positions of Rio Grande Near El Paso Between 1852 and 1907___ _ following 280 Rio Grande, El Paso-Juarez Valley Rectification Project .____________________________ -follo wing 280 Rio Grande Valley Gravity Canal and Storage Project ____________________________ ______ following 280 ILLUSTRATIONS PAGE Personnel of International Boundary Commis~ion__________________________ _ __________________ Frontispiece Cordova Island ------------------------------------------------------------------------------------------------------------------------46 Flood Control Project, Nogales, Mexico_ ________ _ ________________________ ______________ ______ _____ ___ __ _ ______ 53 Canyon of Rio Grande : Santa Helena -------------------------------------------------------------------------------55 Horcon Tract --------------------------------------------------------------------------------------------------------------------------60 Canyon of Rio Grande: Quitman -----------------------------------------------------------------------------------------74 Canyon of Rio Grande : Presidio ________________________ -----------------------------------------------------------------77 A Boundary Monument on Cordova Island -----------------------------------------------------------------------145 Old river bed around Cordova Island ____________________ -----------------------------------------------------------173 Elephant Butte Dam: Spillway and Power Plant -----------------------------------------------------------184 International (Mexican) Dam, El Paso-Juarez ---------------------------------------------------------------187 Drainage Gana! near El Paso ---------------------------------------------------------------------------------------------188 Covered Section of Irrigation Canal -----------------------------------------------------------------------------------189 Don Martin Dam and Reservoir on Rio Salado, Mexico -------------------------------------------------210 Flood Control Project, Nogales, Mexico-----------------------------------------------------------------------------215 Flood waters near Mission, Texas, September, 1932 -------------------------------------------------------216 Mission Floodway ------------------------------------------------------------------------------------------------------------------217 Canalization Work above El Paso ______ -------------------------------------------------------------------------------219 Mouth of Rio Grande.__________________________________________________________ ___________ _ _______ _ ________ _ __________ 234 Palm Forest near Brownsville ___ __ ___ ___ -------------------------------------------------------------------------------237 Rectified Channel of Rio Grande -----------------------------------------------------------------------------------------242 TABLE OF ABBREVIATIONS This table does not include titles that are sufficiently described in the notes. A. J. Arbitraje del Chamizal £.ancos, First Series Bancos, Second Series Bancos, Third Series Bancos, Fourth Series Bartlett Chacko Chamizul, U.S. App. Chamizal, Award Chamizal, U.S. Arg. Chamiizal, U. S. Case Chamizal, U.S. Countercase Emory Ex. Doc. American Journal of International Law Memoda Documentada del Juicio de Al'l1i­traje del Chamizal Proceedings of the International Dounda1'y Commission, Elimincition of Fifty-Seven Old Bancos, Specifically Described in the Treaty of 1905, 1910 Proceedings of the International Boundary Commission, Elimination of Bancos, Treaty of 1905, Second Series, Nos. 59-89 Proceedings of the International Boundary Commission, United States and Mexico, Elimination of Bancos under Convention of March 20, 1905, Colorado River Nos. 501 a.nd 502. Rio Grande Nos. 90 to 131, Inclusive, 1929 Proceedings of the International Boundary Commission, United States and Mexico, Elimination of Dancos under Convention of 111arch 20, 1905, El Paso-Juarez Valley, Rio Grande Nos. 301 to 319 Inclusive, 1931 John Bartlett, Personal Nan·ative of Ex­plorations and Incidents in Texas, New Mexico, California, Sonora, and Chihua­hua, 1854 C. J. Chacko, The International Joint Com­mission Between the United States of America and the Dominion of Canada, 1932 Dept. of State, Chamizal Arbitration, Ap­pendix to the Case of the United States ------, Chamizal Arbitration, Min­utes of the International Boundary Commission, A ward, Dissenting Opinions, Protest of the Agent of the United States ------, Cha11iizal Arbit1·ation, Argu­ment of the United States -----, Chamizal Arbitration, Case of the United States ------, Chromizal Arbitration, Coim­tercase of the United States Report of William H. Emory, Ex. Doc., 34 Cong., 1 sess., XIV (861-862), No. 135 Executive Document The University of Texas Publication F. Fenwick For. Rels. Garber Grotius Hearings on H. R. 8871 Hearings on H. R. 9998 and H. R . 11768 H. Doc. H. Ex. Doc. H. Misc. Doc. H. Rep. Hyde Joint Journal Joint Report League Malloy M. B., Env. Mills Minute Moore Ops. Atty. Gen. Oppenheim P1·ess Release Federal Reporter C. G. Fenwick, Cases on International Law, 1935 Dept. of State, Papers Relating to the Foreign Relations of the United States P. N. Garber, The Gadsden Treaty, 1923 Hu~o Grotius, De Jure Belli ac Pacis (ed. Scott, trans. Kelsey), Classics of Inter­national Law, Publications of the Carne­gie Endowment for International Peace, I, 1913, II, 1925 Hearings before the Committee on Foreign Affairs, House of Representatives, on H. R. 8871, April 17, 1924, 68th Congress, 2d session, 1924 Hearings before the Committee on Foreign Affairs, House of Representatives, on H. R. 9998 and H. R. 11768, 74th Congress, 2d session, 1936 House Document House Executive Document House Miscellaneous Document House Report C. C. Hyde, International Law Chiefly as Interpreted and Applied by the United States, 1922 Joint Journal of the International Bound­ary Commission Joint Report of the Consulting Engineers of the International Boundary Commis­sion League of Nations, Treaty Series Malloy, Treaties, Conventions, etc., between the United States and other Powers Mexican Boundary, Envelopes, Archives of the Department of State Anson Mills, My Story, 2d ed., 1921 Minute of the International Boundary Com­mission J. B. Moore, A Digest of International Law Opinions of the Attorneys General of the United States L. L. Oppenheim, International Law, 5th ed. (Lauterpacht), 1935 Press Release of the Department of State Boundary Commission, United States a.nd Mexico Proceedings Proceedings, Horc6n Case Report of the American Section Report of the Commissioner S. Doc. S. Ex. Doc. S. Misc. Doc. S. Rep. Stat. S.W.(2d) Transcript of Record U.S. Vattel Water Bulletin Wilson Proceedings of the International (Water) Boundary Commission, United States and Mexico, 1903 Department of State, Proceedings of the International Boundary Com1nission Re­lating to the Diversion of Rio Grande by American Rio Grande Land and In-iga­tian Co. near Horc6n Ranch, Tamaulipas, Mexico; U.S. v. American Rio Grande Land and Irrigation Co., Equity No. 41 Report of the American Section of the In­ternational Water Commission, United States and Mexico, 1930. H. Doc., 71 Cong., 2 sess. (9255), No. 359 International Boundary Commission, Amer­ican Section, Unpublished Report of the Comniissioner for the Fiscal Year Ending June 30, 19­ Senate Docmnent Senate Executive Document Senate Miscellaneous Document Senate Report United States, Statutes at Large Southwestern Reporter, Second Series Transcript of Record in the United States Circuit Court of Appeals for the Fifth Circuit. Willis v. First Real Estate and Investment Co. United States Reports E. de Vattel, Le Droit des Gens, ou Princi­pes de la Loi Naturelle Appliques a la Conduite et a.ux Affaires des Nations et de Soiwerains (ed. Scott, trans. Fen­wick), Classics of International Law, Publications of the Carnegie Endowment for International Peace, 1916 International Boundary Commission, Water Dulletins, Nos. 1-9, Flow of the Rio Grande and Tributary Contributions G. G. Wilson, Handbook of International Law, 2d ed., 1927 INTERNATIONAL BOUNDARY COMMISSION UNITED STATES AND MEXICO Left to right: George C. Robinson, Assistant Secretary, United States Section; Mervin B. Moore, Chief Clerk and Secretary, United States Section; Culver M. Ainsworth, Consulting Engineer, United States Section; Lawrence M. Lawson, Commissioner for the United States; Ing. Gustavo P. Serrano, Comm:ssioner for Mexico; Ing. Rafael Fernandez MacGregor, Consulting Engineer, Mexican Section, Waters; •Ing. Joaquin C. Bustamante, Consulting Engineer, Mexican Section, Boundaries; Jose Hernandez Ojeda, Secretary, Mexican Section; Horacio G. de Partearroyo, Assistant Secretary and Translator, Mexican Section. El Paso, Texas, February 2, 1941. Photograph supplied by L. M. Lawson, Commiasioner for the United States. FOREWORD The Bureau of Research in the Social Sciences Studies are an expres­sion of a community of interests in the social sciences. The publication of these Studies is one of the results of a comprehensive program of research which has been undertaken since 1927 with the assistance of substantial grants from one of the national foundations and liberal appropriations from the Texas Legislature. For the most part the Studies deal with social-science problems of Texas and the Southwest region and represent specific investigations, the findings of which are published under the direction of the Bureau for the purpose of furnishing information of a non-propaganda character to the end that facts about T'exas and the Southwest may be more widely disseminated and more generally known. The report of the work of the International Boundary Commission, United States and Mexico, which is included in this bulletin, is the first definitive treatment of the subject to reach publication and is the tangi­ble result of several years' investigation by Professor Timm into the history and complex administrative business of the Commission over a period of nearly half a century. For the first time there is made avail­able, in this study, the fascinating and significant story of a phase of international relations heretofore little known and appreciated by the average citizen on both sides of the United States-Mexican border. Involved therein is a suggestion of the political, economic, and cultural importance of one of the most intractable river systems in the western hemisphere-the meandering, vagrant Rio Grande. Water-now a mere trickle and then a raging torrent-is the chief "actor" in the drama as the author makes it unfold, with the "supers" cast in the roles of ranchers, fruit growers, truck gardeners, power companies, city, state, and Fed­eral officials and boundary commissioners. W. E. GETTYS, Director. ERRATUM th r t of the personnel of the Commiss~on, front~spiece, _pagesl\the I_n e is B kh ld Senior Engineer, Umted States ec ion, name of Josep: tL. u~ha~ o;rCulver M. Ainsworth, Consultin~ ~ngineer, ho:iid appear e t'Yeen d that of Lawrence M. Lawson, Comm1ss1oner for United ~tes sec 10n, an the United States. PREFACE The International Boundary Commission, United States and Mexico, was first authorized by the Treaty of March 1, 1889. Actually set up in 1894 it is therefore at the present time (1941) forty-seven years old. It was created for the special purpose of administering the Treaty of 1884, which adopted for the water boundary between the United States and Mexico the commonly accepted rules or principles of accretion, avul­sion, and the tha.lweg. The number and frequency of avulsive changes in the boundary rivers soon convinced those conversant with the situation that the only feasible solution was a conventional arrangement for the mutual transfer of areas cut off by such changes. Tbe result was the Treaty of 1905 for the elimination of the cutoffs or bancos. Tbe admin­istration of this treaty, also, was assigned to the Boundary Commission. Still a third treaty directly conferring powers and duties upon the Commission was that of 1933 providing for flood control and river recti­fication in the El Paso-Juarez Valley. In addition to the treaties named above the Commission has become the successor of the special commissions provided by the treaties of 1848, 1853, and 1882 for the surveying and marking of all or parts of the land and water boundary between the United States and Mexico. The functions of the United States Section in relation to the land boundary are conferred now by the Statute of 1935, which in reality is a codification of the functions of the section as they have been exercised under the authority of executive instructions. Finally, after the two governments had sought for three decades to find a solution for the vexing problem of the control and division of the water in boundary streams and their tributaries, now by assigning the task to special water commissions and again by making it a special duty of the Boundary Commission, both countries have concluded that this Commission is best adapted and equipped to assist in discovering the bases of a water convention. A related function, the execution of great public works, such as flood control and river rectification projects requir­ing the cooperative efforts of the two governments, is performed, on the American side, by the United States Section of the Boundary Commis­sion. In Mexico practice varies. It is confidently believed that the Commission occupies, in some respects, a unique place among boundary commissions, not merely because of its permanence but even more because of its character, its functions, and the peculiar legal problems arising from its position and operations. Yet, in spite of its age, the variety of its tasks, and the importance of its achieve­ments, little has been written about it. The present study seeks, in some small measure, to fill that gap. A preliminary survey quickly showed the impracticability of an attempt to write a complete account of the history and work of the Commission; consequently, certain topics, largely of a The University of Texas Pu,blication legal nature, were selected for study. Added to these are certain factual treatments of the subjects of banco elimination and control and division of water. In planning the method of treatment of the selected topics emphasis was laid upon the topical rather than upon the chronological approach. The effort has been chiefly to clarify legal issues and general position rather than to give a complete record of the Commission's activities. At the same time enough of the historical has been presented to afford a reasonably accurate view of the origin and development of the Commis­sion and of the larger aspects of its work. The material available and used in the research on the project is, for the most part, documentary in character. No secondary works of any particular value have been published on the subjects of bancos and water apportionment along the United States-Mexican boundary. A few articles in magazines and learned journals have been helpful, as have the New York Times and Texas newspapers. The general texts on international law were essential insofar as the statement of legal principles was concerned. Fortunately, however, the amount and quality of documentary data available is adequate for most of the topics considered in this study. The volumes of Foreign Relations of the United States contain material on several phases of the subject, but in the main they are, though useful, not indispensable. For one thing, the published material on the Chamizal arbitration is itself a documentary history of the boundary, not complete, but in some respects more adequate than Foreign Relations. There is almost a surfeit of public documents on the early boundary surveys, but they are of value chiefly in assisting to a understanding of the back­ground of the present Commission and of boundary problems in general. For the period since 1889 there is no lack of reasonably satisfactory documentation. The Boundary Commission published in 1903 a measur­ably complete report, in two volumes, of its work since it was organized in 1894. It includes not only the actual cases and questions that came before the Commission but also much pertinent correspondence. Since 1903 the regular printed reports of the United States Section of the Commission have dealt almost entirely with banco elimination. Special reports cover miscellaneous activities, such as work along the land bound­ary, monumentation on international bridges, and investigations for flood control projects. These activities serve chiefly to illustrate certain points of legal procedure and sources of authority. On the problem of use and control of water the amount of documentary material of a technical nature is well-nigh inexhaustible. Of particular value is the report of the American Section of the special international commission set up in 1927. The United States Geological Survey and the United States Bureau of Reclamation have also published many special reports on most phases of the water problems of the two river basins­the Colorado and the Rio Grande. The Boundary Commission now pub­ Boundary Commission, United States and Mexico lishes a series of water bulletins dealing with the Rio Grande. All of this material contributes to a correct understanding of the factors under­lying the legal and diplomatic angles of boundary relations. Special mention should be made of the court reports. It is probable that no other international boundary represents such a tangle of accretion and avulsion cases as does the one under review. The study of these cases provides, in large measure, the distinctive contribution, if there be one, of this study. Unhappily, only one case has thus far reached the United States Supreme Court.1 Liberal use has been made of man­uscript records in the District Court of Texas at El Paso and in the archives of El Paso County. The archives of the two national sections of the Commission contain much material; but, except for the annual reports of the United States Section, begun in 1925, most of it that has value for this study appears also in the published documents. Insofar as they have been made avail­able, the original minutes have been examined. In the archives of the Department of State in Washington are some sixty envelopes containing primary material relating to this boundary. These data have been checked against published documents, but they appear to contain little of special value to this study of primarily legal topics. The letter press books, kept by Commissioner Mills and preserved, for the most part, in the archives of the United States Section in El Paso, were studied. As for Mexican material certain observations may be made. First, all official minutes and reports of the Commission are prepared and gen­erally published in both Spanish and English and in every ca~e one is the translation of the other. Second, since the Mexican courts have taken almost no part in boundary controversies or even in litigation over bancos, no important documentation from their records will appear. Insofar as is essential, reference will be made to Mexican laws, constitutions, official publications, and secondary works! Taking the investigation as a whole, it is not believed that any documentary material, essential to these selected topics, has escaped attention. Certain difficulties encountered in carrying forward this research project deserve a word of explanation. For one thing, it was not possible to give adequate attention to the Mexican Section. Under the circum­stances the title of the study might well bear this explanatory phrase: 1Shapleigh v. Mier (1937), 299 U.S. 468. This related only indirectly to accretion and avulsion, the main issue being the legality of an expropriation on the part of the Mexican Government. Cordova v. Grant (1918), 248 U.S. 413, involved the special issue of jurisdiction of the United States District Court in the El Paso district over a tract in El Chamizal and did not touch on the major problems under consideration here (see below, Ch. VIII, n. 23). See Ch. VI, n. 50, for a case decided by the United States Circuit Court of Appeals, Fifth Circuit. Certiorari was refused by the Supreme Court. 2Mexican documentation on El Chamizal is reasonably complete and is easily com­parable to that of the United States. It has the important advantage of containing the hearings on the case whereas the United States documentation lacks that important element. The University of Texas Publication "With Special Reference to the United States Section." Furthermore, circumstances did not permit a continuous, thorough-going study of the several angles of the project at any given time; consequently, it was necessary to extend the work over a period of several years. Finally, a constant source of doubt and even confusion in the matter of termi­nology has presented itself. This arises from the inaccuracy of the term "Commission" when reference is made to many activities on one or the other side of the frontier. The two national sections cooperate where possible, as in the rectification program in the El Paso-Juarez Valley; yet it is not the Commission as a unit that executes projects. This problem is even further complicated by the fact that the functions of the two commissions (water and boundary) have not always been combined in one or the other state. Acknowledgment is gladly and gratefully made of assistance and encouragement received at various times and places during the past several years in the preparation of this study: to Dr. George Grafton Wilson, of Harvard University, for inspiration as a teacher in the field of international law and for patient, helpful criticism of the first draft of a doctoral dissertation, of which this study is a continuation; to Dr. Charles Wilson Hackett, of The University of Texas, for the interest he created in Latin American affairs and specifically for having first suggested the United States-Mexican boundary as a fruitful subject of study; to the Bureau of Research in the Social Sciences of The Uni­versity of Texas, with Dr. Warner E. Gettys as Director, for funds used in travel and in securing clerical and research assistance; to officials in the Department of State of the United States for permission to examine the archives; to Commissioner L. M. Lawson and former Commissioner Armando Santacruz, Jr., and their corps of able, efficient, friendly assistants in the two national sections of the Commission, for their unfailing courtesy and generosity in giving freely of their time and their facilities in helping forward this study; to my former student assistants in The University of Texas, C. B. Marshall, J. M. Ray, and R. L. Thurston, for much efficient help in the routine of research and writing; to Commissioner L. M. Lawson for reading the entire manu­script; and to Dr. J.C. Eckert for preparing the material for the press. The United States-Mexican frontier has, indeed, so profoundly im­pressed me that I anticipate with eagerness the early resumption of my travel and research along the two thousand miles of rivers. desert, and irrigated valleys between the two states from the Gulf of Mexico to the Pacific Ocean. It is not merely a political frontier ; it is the meeting place of two, and in some places three, cultures; and the International Boundary Commission, United States and Mexico, is fair evidence that these cultures can mingle in the spirit of harmony and cooperation. CHARLES A. TIMM Austin, Texas June, 1941 CHAPTER ONE INTRODUCTION 1. NATURE OF THE BOUNDARY For nearly two thousand miles the United States of America and the United States of Mexico have a common boundary. As defined by the treaties of 1848,1 1853,2 and 1884,3 it follows the Rio Grande for 1,2004 miles between the Gulf of Mexico and a point near El Paso. From this river it runs about 535 miles overland to the Colorado River, up the Colorado some 20 miles, and thence about 140 miles overland, striking the Pacific Ocean at a point a short distance south of San Diego, California.5 At the time the boundary line was first surveyed and marked in accordance with the treaties of 1848 and 1853, it ran through terri­tories containing few inhabitants except at isolated points such as Paso del Norte, the present Juarez, Chihuahua. A few other settlements were found lower down on the Rio Grande, but west from Paso del Norte to the Pacific the region was for the most part treeless, waterless, and uninhabited. Between 1848 and the present day many changes have been wrought. Ciudad Juarez now has a population of 40,000; Nogales, Sonora, 14,500; Mexicali, Baja California, 7,400; Matamoros, 11,400; Nuevo Laredo, 17,500; and Piedras Negras, 15,900. On the United States side Browns­ville has 22,000 inhabitants; Laredo, 40,000; El Paso, 97,000; and San Diego, 202,000. These few illustrations reveal that large areas which only a few years ago were either wholly undeveloped or were at most occupied by scattered ranches are today the centers of considerable agricultural, mining, commercial, and industrial developments. Hence, it is obvious that whereas in former years the exact locus of the boundary for long stretches was a matter of small or no importance, today it is of vital concern even though population is still relatively sparse along most of its extent. The development of mines, irrigated farms, and oil fields makes it highly essential that the governments and private indi­viduals know the precise location of the line. As for cutoffs, or bancos, along the rivers, they were scarcely a problem until the last quarter of the nineteenth century. No one seriously cared whether or not the Boundary Commission surveyed them. In respect of the use and control of boundary waters the contrast between the past and the present is equally striking. When the treaties of 1848 and 1853 were negotiated, the chief official concern was the 19 Stat. 922; App. I. 210 Stat. 1031; App. II. 324 Stat. 1011; App. III. 4Prior to the rectification program this figure would have read 1,300. See Ch. III. ssee map facing p. 29. The University of Texas Publication preservation and protection of the right of navigation. True, the old porciones6 usually ran to the rivers and sometimes across them, but the purpose was to assure a water supply for the cattle on the ranches, not for irrigation. Aside from Pueblo developments up the river, small tracts were then and had been for a century or more under irrigation at several places along the Rio Grande, especially in the EI Paso and MesiIIa valleys, but there was no thought of a time when the Rio Grande would supply water for nearly two million acres. The Colorado River was then even less used than was the Rio Grande. What is the situation today in respect to irrigation? Except as a legal point in argument, navigation is tacitly ignored. Instead, the governments are seeking the bases of an agreement covering the conser­vation, storage, and apportionment of the waters of the two major rivers, and even of the diminutive Tia Juana, for municipal, domestic, industrial, irrigation, and power requirements. It is estimated that the total water resources of the Colorado River basin are about 19,700,­000 acre-feet. Already some 2,600,000 acres in this basin are under irrigation, with 8,500,000 acres ultimately irrigable. In the Rio Grande basin about 1,700,000 acres are now being irrigated, and an additional 1,700,000 acres are easily irrigable; yet the entire river yield of this basin is probably less than 8,000,000 acre-feet per year.7 Nor are the present boundary problems concerned entirely with water. The character of the rivers themselves, as the source of constantly recurring difficulties, warrants a brief description of the two river sys­tems and their basins in order to clarify the general nature of the ques­tions created by these boundary streams. Both rise in the Rocky Moun­tains, the Rio Grande flowing toward the Gulf of Mexico and the Colo­rado toward the Gulf of California. The Colorado system includes the Colorado, the Green, the Gila, and their tributaries. The whole basin covers an area of 244,000 square miles and includes portions of seven States of the United States and 2,000 square miles of Baja California and Sonora in Mexico. 8 Its water comes almost entirely from snow and rain in the mountainous area of the head-waters. The Rio Grande, a stream 2,000 miles long, has a drainage area of about 180,000 square miles, but its sources of water supply are more varied than are those of the Colorado. It rises in southern Colorado not far from the Colorado River; hence, it, too, receives water from the mountainous regions of the western States; but it also is fed by tributaries in Texas and Mexico, the principal ones being the Pecos, Devil's, Conchos, Salado, and San Juan rivers.!\ The rainfall is widely distributed and varies from twenty­ 6Porci6n is the name applied to the old Spanish grants. •These data are gathered from Report of the American Section, passim. An acre­ foot is the quantity of water covering one acre to the depth of one foot. ssee map p. 191. "See map p. 177. Boundary Commission, United States and Me;rico five inches or more at Brownsville, to seven or eight inches at El Paso, to thirty-five inches in the high mountains at the head-waters. Both streams are alluvial in nature, especially in the lower sections, and both carry enormous quantities of silt. To illustrate: The silt deposit in Lake Mead at Boulder Dam will likely be between 100,000 and 140,000 acre-feet per year; and in the Elephant Butte reservoir the annual average deposit (January, 1915, to April, 1935) was 18,034 acre­feet. This means that the beds in the lower sections tend constantly to aggrade. Below Yuma the Colorado River bed aggraded nine feet from 1922 to 1928.10 The plane of the Rio Grande at El Paso aggraded equally as much between 1914 and the completion of the river rectifi­cation project. Furthermore, both streams are subject to violent and destructive floods." As a result of these factors, the rivers are unruly and, as is characteristic of alluvial streams, tend to wander about over their flood plains. They are subject to both accretive and avulsive changes and, except where the banks and bed are of rock, are in a constant state of disequilibrium. 2. THE PROBLEM It was to deal with these rivers, insofar as they form the international boundary, that the present International Boundary Commission was created by the Treaty of March 1, 1889.12 This body and its activities constitute the subject matter of this study. Its more important phases are divided into several groups: one, the legal or juridic nature of the Commission itself; two, the legal character of its powers, in theory and in practice; three, special legal and technical questions arising in the work of banco elimination, boundary surveying and marking, and water control and apportionment; four, the relation of the Commission to domestic courts and to private titles; and, five, the special topic of El Chamizal. These several aspects of the general theme are interrelated; yet they are sufficiently distinct to warrant separate discussions. 3. THE PLAN In attacking the problem an examination will be made of the history and organization of the Commission. Included in this preliminary sur­vey will be brief descriptions of the antecedents of the Commission, of ioReport of the American Section, p. 20; Colorado River Develo')Ylnent, S. Doc., 70 Cong., 2 sess., VI (8989), No. 186, pp. 51, 52. National Resources Committee, Regional Planning, Part VI-The Rio Grande Joint Investigation in the Upper Rio Grande Basin in Colorado, New Mexico, and Texas, 1936-1937, p. 108. 11The information regarding the aggradation at El Paso came from personal inter­views. In the cloudbursts that occurred in September of 1932 both in the Big Bend section of Texas and on the Mexican tributaries, the Rio Grande rose to 52.20 feet at Laredo, the highest measurement on record there; the Devil's River, ordinarily a small creek, flowed 597,000 second-feet for a period of several hours. 'Water Bulletin, No. 9, 1939, pp. 25, 34. i225 Stat. 1512; App. IV. The University of Texas Publication its functions and powers, and of its procedure. The legal bases of its powers will then be studied, partly by a historical, partly by an analytical, process. The treaties of 1884, 1889, 1905, and 1933 will receive special emphasis; but other sources of the Commission's authority-instruc­tions, protocols, statutes-will also be considered. The discussion of the legal bases may be viewed as a point of departure for all succeeding chapters. In carrying out the general plan a chapter will then be devoted to the jural character of the work of the Commission under the Treaty of 1889. As will be seen, this treaty had for its main purpose the crea­tion of a joint commission to administer the provisions of the Treaty of 1884, especially in regard to avulsive and other alluvial changes of the rivers and to the enforcement of treaty provisions regarding works in, along, and over the channels. The goal of the chapter, however, will not be so much to describe the work of the Commission under the Treaty of 1889 as to discover the real meaning in theory and practice of the stipulations conferring power upon it. A special effort will be made to ascertain whether the general grant in Article I of "exclusive juris­diction" over all water boundary questions remains in practice limited to the narrowly, specifically stated powers granted by that same treaty. The special problems of the bancos, or cutoffs, caused by avulsion, i.e., violent shifting of the channel, is so unique and so important in its relation to the study of the Commission as to warrant the inclusion of a chapter dealing exclusively with them. Therein will be considered the character of the rivers and of river changes, the topographical features of bancos, the actual work of elimination, and the procedure followed by the Commission in such work. The subject has special interest because the Treaty of 1905 is, it is believed, unique in its treat­ment of cutoffs. Public law is familiar with the principles of accretion and avulsion, but it so happens that no other sovereign states must con­tend with constantly shifting boundary rivers. Tbe States of the United States, especially those in the Mississippi basin, are often faced with the problem, in the solution of which the courts have uniformly applied the generally accepted rules in regard to accretion and avulsion.13 In the case of the Colorado River and the Rio Grande, however, the United States and Mexico by the Treaty of 1905 have adopted a different rule, that of the transfer of cutoffs. Perhaps other independent states would do likewise if they had to struggle with similarly vexatious questions on their frontiers. Be that as it may, it is apparent that, by virtue of the Treaty of 1905, the United States-Mexican Boundary Commission occupies a distinctive place in international law. The legal and practical nature of the Commission's powers under the Treaty of 1905 will likewise require a separate chapter. It will consider such legal situations as arise in the work of surveying and eliminating 1a1owa v. Illinois (1893), 147 U.S. 1; Nebraska v. Iowa (1892), 143 U.S. 359; Arkansas v. Tennessee (1918), 246 U.S. 158. Boundary Commission, United States and Mexico bancos. For example, what is the legal relation of the Commission to the elimination of bancos? Does the treaty or the Commission transfer sovereignty? Is the transfer an act of cession or merely the settlement of a question of disputed sovereignty? Also, whether it be cession or a mere relinquishment of a claim by one state in favor of the other state over a disputed area, what is the date on which the change takes effect? These questions and their answers have a vital bearing upon the relation of the Commission to courts and to private titles. In the actual work of banco elimination the Commission found itself entangled in a maze of disputes over land titles, controversies that brought the work of the Commission before the domestic courts of the United States. Hence it was deemed advisable to devote a chapter to this phase of the general problem. It is clear that the Commission is not, per se, a court to try land-title cases. Yet the indirect effects of the determination of the boundary by the Commission, of the elimination of bancos by it, and of its decisions as to the nature of river changes at given times and places may well determine the relative merits of con­flicting private titles. The general rule of international and of consti­tutional law is clear: The settlement of boundary questions is a polit­ical matter, and the decision of the political departments is binding upon the domestic courts,14 but the problem in the case at hand is not so simple as that. May the courts interpret the boundary treaties and decide for themselves the legal nature of banco eliminatioJJ.? May the courts take evidence independently of the Commission regarding the location of the river and the nature of a river change at a given time and place in the past? If the courts do these things-and they have done them-where does this leave the Commission and the treaty stipu­lations on the protection of private property? The whole topic has many ramifications, and some of them have not yet been fully explored. The one great failure of the Commission was in its effort to dispose of the case of "El Chamizal" in accordance with the rules set forth in the T'reaty of 1884. In an endeavor to settle the dispute the governments enlarged the Commission by adding a Canadian jurist and gave it arbitral powers for that one controversy. The attempt to arbitrate failed, but the documentary material relating to the area throws light on much of the history of the boundary and the boundary treaties; furthermore, the matter is still unadjusted and sometimes has been a thorn in the side of the Commission. For these reasons a special chapter is devoted to it. At the present time the most important question facing the two nations is that of the use and control of boundary waters. For at least four decades the governments have sought, through both the Boundary Com­mission and special water commissions, to solve this problem. Mean­while, year by year, the condition grows more acute as increasing HFoster v. Neilson (1829), 2 Peters 253. The University of Texas Publication diversions take place. The banco situation will probably be settled permanently by devising means to control the river channels; but the difficulty regarding water will remain indefinitely. Amicable settlements of a provisional nature or for special areas can be made; but the whole subject becomes constantly more rather than less formidable and com­plex. What legal rules apply? Is the doctrine of prior appropriation a part of international law? Do the states have unrestricted use of the tributaries and even of the non-boundary portions of the main stream? What are the possible bases of a satisfactory solution? Or, is the only hope the achievement of one temporary adjustment after another? A volume could justifiably be given to these queries alone, but here an attempt will be made to discuss in one chapter their main outlines. Finally, a concluding chapter, after drawing together, in summary form, the essential points that were developed in the study, will explain the powers, functions, and legal nature of the Commission in new class­ifications, with the aim of presenting the whole picture from varying angles. The second part of the chapter will present the conclusions, which will, in part, be an outline of possible policies in regard to the future handling of boundary problems and to the proper relation of the Commission to such solutions. CHAPTER TWO THE INTERNATIONAL BOUNDARY COMMISSION 1. THE ANTECEDENTS OF THE COMMISSION Many of the problems and some of the powers and functions of the existing International Boundary Commission are closely related to those of the boundary commissions set up by the United States and Mexico under the treaties of 1848, 1853, and 1882. For that reason a brief statement regarding these early agencies may assist in clarifying the background of the boundary questions of today. The Treaty of Guadalupe Hidalgo, 1848, t defined in Article V the boundary between the United States and Mexico and provided for the surveying and marking of that line by a joint commission on which .. . the two governments shall each appoint a commissioner and a surveyor, who, before the expiration of one year from the date of the exchange o:li ratifications of this treaty, shall meet at the port of San Diego, and proceed to run and mark the said Loundary in its whole course to the mouth of the Rio Bravo del Norte. They shall keep journals and make out plans of their operations; and the result agreed upon by them shall be deemed a part of this treaty, and shall have the same force as if it were inserted therein. . . . As thus determined, and as later surveyed and marked, the boundary was to cause serious difficulties to the two states, necessitating later trea­ties and commissions and finally a permanent body. The first American commissioner on the earliest commission was Colonel John B. Weller, and the first surveyor, A. B. · Gray. Major W. H. Emory was chief astronomer. The first Mexican commissioner and surveyor were, respec­tively, General Pedro Garcia Conde and Jose Salazar y Larregui.2 Strangely enough, the chief difficulties of the survey arose from dissensions, not so much between the two national sections, as in the American Section itself. Aside from the serious problem occasioned by the inhospitable country through which the survey had to be made and by the inadequate and dilatory support accorded by the United States Government, the American Section appeared to be rent by personal jealousies and, more especially, by a clear-cut difference of opinion between the commissioner and the surveyor in regard to the initial point on the Rio Grande above El Paso. Weller had early been replaced by J. C. Fremont, who, upon being elected to the United States Senate, 19 Stat. 922, 926-928; App. I. It will be recalled that an article added in 1835 to the Treaty of 1828 made provision for a commission; however, it never functioned. J. M. Callahan, American Foreign Policy in Mexican Relations, pp. 53-54. 2Report of the B••l ' l"EDERAL PRO.TECT lUIB!ll 5 1.L.I,ytel, Proj.Engr.(Below Loredo) ~.1.Ledbetter, Engr. (Abo... Loredo) r.Test1gation tor Water St:roage and Flood Co1>t:rol along Rio Grand• fl'Olll 'tort ~111tman to Cult ~t llexlco ~llotment tor lllTest1gatio11-$205,00< I L™ER RIO GRANDE P'LOOD CO!mlOL PRQTICT 1. L ~el, Project Engineer Construction or LeTeea AlOlll Rio Grando a, Flood•1•, BJ 'toroo Acco1111t Bild Co11tract l!st!Jllated Coat or Project-t9,S90,00C I FENCE CONSI'RUCTION PROIT.t"" Coutruction or , • .,•• Along lllternational BolllldlllT .:>atl.laated Coat or P:roject-t:!OQ,000 I Rl0 GRANDZ CANALIZATION PROJECT If. II. Boker, Project lngineer CoUtl'llCtiOn Ot MerlCBll J>om and Cellal1zat1oll ot Rio Grande trcoa Cebello 0... to 11 Paao lsatillated Coat or ProJect-..,2'10,00< INTZRllATIONAL BOUNDARY CO}ll!ISSION U111ted st. t •• all d llexico U111ted State a Sect1011 Ol¥WIIZATION S!Al!T -ma: 30I 1939 ApproTO 0 A (<1 ' .,, ---. '\ LOTA ~·s '/Jel I LO I• \ "1 ,,. INT..:.,ER_A10llllUNOAAV COMMISSION ' -___N_T---N...JA.al-BOUNll FD 5TATt5 .SCCltON \, GENERAL MAP 0-;::, .\ ·"'-OF IHE u A \ '(''~ \ R I 0 GRAN DE. v I EL PASO T O GULF OF M EXICO • \ ' -... ~ I DRAWN -SC( MO~ . REC ~ \ I \f l~'\ CHECKED ~PB APP v·o . .fr.....t. . ~. ..J.. ' El Paso. Texas. Mar. 21 1933 106° IO'Z-n · 101· 99• f I. d by Commissioner L M Lawson, International Boundary Commission, United States and Mexico) 30· (Copy o map supp 1e • • CHAPTER FIVE THE TREATY OF 1905: PRACTICE AND PROCEDURE OF BANCO ELIMINATION 1. INTRODUCTION The eUmination of the so-called "bancos" from the effects of the second article of the Treaty of 1884 and the disposition of them under the pro­visions of the Convention of 1905, drafted especially for the purpose, has formed an important phase of the work of the International Boundary Commission. By "banco" is meant a tract of land segregated from either country by a cutoff in the typical ox-bow fashion known in international law. The river, in its meanderings, forms a loop and gradually doubles upon itself, the current, by erosion, continually reducing the neck of the loop. Then in the last stages of this erosion, either by the opening of a new channel across overflowed land or by the caving in of the land con­stituting the neck, the river cuts through it, forming a new channel, and precipitately or by degrees abandons the old channel. The effect is to leave the territory within the limits of the bow on the opposite side of the river from the state of which it was theretofore geographically a part. This type of avulsive change, although characteristic of alluvial streams, is sufficiently distinguishable as a type and frequent enough in the bound­ary waters between the United States and Mexico to merit considerable attention.' A survey of the circumstances leading up to the Convention of 1905 will perhaps serve best to explain the nature of the problems. 2. NEGOTIATION OF THE TREATY OF 1905 The wording of Article V of the Treaty of 1848 and of Article I of the Treaty of 1853 left doubt in some minds as to whether or not the negoti­ators intended to adopt the fixed line theory in defining the boundary along the Rio Grande and the Colorado River. This uncertainty was removed, at least for the future, by the Treaty of 1884,2 which provides in its first article that changes in the bed of the rivers caused by erosion and accre­tion shall not move the boundary from the main channel of the river bed, and in its second article stipulates that changes of an avulsive nature shall leave the boundary line in the center of the abandoned channel. The river boundary was therefore made comformable to the usual rule of inter­national law, that "when such a river suddenly changes its course to a new channel by a process known as avulsion, the limits of jurisdiction remain in the middle of the old channel. When the change of the course 1For a general study of the characteristics of the Rio Grande see Report by W. W. Follett, Chamizal, U.S. Countercase, App., pp. 218-225. For illustrations, see maps included as App. XI and App. XII. 224 Stat. 1011; App. III. The University of Texas Publication is gradual, by alluvial deposits, however, the limits of juridiction con­form to this alteration."3 T'hus the bancos, being the result of avulsive changes, would, according to the treaty, remain on the side of the boundary on which their areas formerly lay. As a result, in a river valley where this type of change was frequent, the river along much of its course would after a time cease to be the actual boundary, :;;ave at inter­sections, and the boundary would be made up largely of artificial lines around the bancos:' An early indication that the administration of boundary matters was seriously complicated, because of these bancos, by the literal application of the Treaty of 1884 is found in a letter in 1887 from the customs col­lector at Brownsville, Texas, to Representative W. H. Crain in Wash­ington, D.C.5 In this letter Collector Cocke suggested the mutual cession of the territory of these bancos to the nation to which they geographically appertained.6 This communication was sent by Representative Crain to the Secretary of State, who gave the matter some consideration but did not at that time act favorably upon the idea that an international river commission be created for the purpose of effecting such changes of j urisdiction.7 That the administration of the laws of both countries was confused and complicated by the existence of bancos is evidenced by the fact that one such banco was largely the cause of the exchange of diplomatic correspondence between the United States and Mexico concerning the pursuit of criminals into Mexico by American officers, who were unaware that they had crossed the boundary. The Secretary of State quoted an extract from a communication from the Governor of Texas to the effect that the so-called island formed by the river's changing its course in 1854, "is a convenient resort for the people of both Governments who wish to claim allegiance to or act in defiance of either Government," since the true boundary line was not known.8 The Vela, Granjeno, and similar bancos were likwise the loci of friction between American and Mexican nationals even after the International 3Wilson, p. 101, citing among other cases Arkansas v. Tennessee (1918), 246 U.S. 158; Arkansas v. Mississippi ( 1919), 250 U.S. 39. •A glance at the map of the El Paso Valley, App, XI, will illustrate what the ultimate effects on the boundary would be. 5J. J. Cocke to W. H. Crain, Dec. 31, 1887, Chamizal, U.S. App., II, 694-696. 6That this conclusion was logical and indeed inevitable is borne out, as will m_, shown, by the decision of the two boundary commissioners to recommend to their respective governments the mutual transfer of bancos. Below, n. 19. 7Bayard to Connery, No. 240, Jan. 16, 1888, Chamizal, U.S. App., II, 693-696. 8Gresham to Romero, Oct. 12, 1893, For. Reis., 1893, pp. 462-463. See also ibid pp. 464-467. At times the crossing of bandits from one side to another to commi~ depredations caused both governments to keep large forces on the frontier. /bid., pp. 421-447. Boundary Commission, United States and Mexico Boundary Commission, set up under the Treaty of 1889, began to func­tion.0 Because of the urgency of many of these banco questions, the Com­mission met at El Paso on September 28, 1894, and decided to proceed to a personal examination of Camargo, Vela, Santa Margarita, and Granjeno bancos.1 0 After a careful survey of th~ situation the Com­mission found the banco problem utterly different from what had been anticipated.11 Thereupon the Commission concluded that the conven­tions of 1884 and 1889 had not contemplated such changes as these but seemed, instead, to have reference to avulsive changes such as at San Elizario, where a new channel was cut across overflowed land.12 The river, it was observed, might be divided into three main sections: (1) The section from El Paso to Presidio del Norte,'3 in which, because of the strong current and firm soil, changes establish a new channel in another direction, such as at San Elizario, so that the old channel can feasibly be continued as the boundary.14 (2) The section from Presidio to Rio Grande City, in which the fall is great and the channel is com­posed of rock or firm material, and where few or no avulsive changes take place; and (3) the section from Rio Grande City to the Gulf of Mexico, in which the direct distance is only 108 miles but by the river some 241 miles, through low, alluvial bottom lands, with earth of little consistency, where the river is constantly changing by erosion and fre­quently by small avulsive changes, leaving tracts, known as bancos, having the form of a pear or gourd. Obviously to follow around all these bancos would lengthen the boundary by several hundred miles. Furthermore, the journal of the Commission revealed that in some cases after a banco was cut off the river receded from it, leaving the plot of ground completely surrounded by foreign territory,'" thus forming an enclave within the territory of the other state. Then would come the tedious and, in fact, endless work of surveying and monumenting the boundary along the old beds. Attention was also drawn to the embarrassment that would inevit­ably ensue in the administration of laws where part of the boundary \vas artificial and part natural. Thus, contrary to the proposition of Attorney 9/bid., 1894, pp. 391-396. 10Mills, p. 278. 11Joint Journal, Jan. 15, 1895, Proceedings, I, 176-178. It is apparent that the two governments had no practical knowledge of the matter but supposed that bancos were few and easily recognized. 12/bid. San Elizario is a fertile, highly developed "island" of some 13,000 acres about 25 miles below El Paso. It was formed by the shifting of the channel from the south to the north. See map, App. XII. 1 31t should be noted that these limits of the first section of the river have since been amended to take in only the distance from EI Paso to Fort Quitman, since the rocky canyons begin immediately below this latter site instead of at Presidio. 14The Commission seemed not to know at that time that the EI Paso-Juarez Valley contained any typical bancos. 15The question as to whether this land accreted in front of a banco might belong to it instead of to the land surrounding it did not present itself to the Commission at this time. The University of Texas Publication Canyon of Rio Grande: Quitman. Looking downstream from near upper end (Photograph by Louis V. Olson: May 8, 1935, copy supplied by Commissioner L. M. Lawson, International Boundary Commission. United States and Mexico) Boundary Commission, United States and Mexico General Cushing, that in case of avulsion the nation would suffer greater injury by the loss of territory than by the loss of the natural boundary, it would seem that the nation would suffer greater injury by the loss of the natural boundary in the river than by the loss of territory, especially in view of the fact that in the long run neither state would lose much more than it gained in the way of territory.1 r, The Commission had, between the dates of October 13 and November 30, 1894, examined, sur­veyed, and taken testimony concerning Vela, Camargo, Granjeno, and Santa Margarita bancos17 with a view to the determination of their nationality, but because it desired to propose that the treaties be amended and since any decision that might be reached on these bancos would become effective after one month,18 no action was taken to dispose of these cases. Instead it was agreed that each commissioner should sug­gest to his government that such bancos as had less river frontage than depth should be considered as avulsive changes, but that the Com­mission be given authority to announce change of jurisdiction over them, with evidence of titles being transferred from the local officials of the one country to the other, and the inhabitants of bancos allowed to retain the citizenship of their original countries if they so chose.19 The choice of words in the statements of the recommendation was to cause trouble in respect of both the empowering of the Commission and in transfer of jurisdiction.20 At any rate the commissioners sent special reports to their governments,2 1 and these led to the lengthy negotiations that termi­nated, some ten years later, in the signing of the Treaty of 1905 on the elimination of bancos.22 3. THE WORK OF ELIMINATION OF BANCOS In 1907 a system of numbers for the five areas into which the river boundaries have been divided was devised in order to identify each banco.23 Since the adoption of the Treaty of 1905 the Commission has published four series on bancos which have been eliminated. These pub­lications deal with the group eliminations and cover three of the areas, isThe reference is to Attorney General Cushing's opinion regarding the Emory- Salazar survey, Ops. Atty. Gen., VIII, 175-180. Also Chamizal, U.S. App., II, 559-563. 11Proceedings, I, 178-187. isTreaty of March 1, 1889, 26 Stat. 1512, 1516, Art. VIII; App. IV. 19Joint Journal, Jan. 15, 1895, Proceedings, I, 176, 178. 2osee below, p. 93. 2'Mills to Gresham, Jan. 15, 1895, Proceedings, I, 173-176. This refers only to the report of the American commissioner. 2235 Stat. pt. 2, 1863; App. V. 23Joint Journal, Dec. 6, 1907, Bancos, First Series, pp. 10-13. The Rio Grande was divided into four sections and the Colorado formed one. The bancos in the Lower Valley have been numbered from one, those in the El Paso-Juarez Valley from 301, in the Presidio Valley from 401, in the international section of the Colorado River from 501, and in the Canyon Section of the Rio Grande from 601. The University oj Texas Publication the Presidio and Canyon sections not being included. The first group consisted of the fifty-eight bancos covered in the first article of the treaty, with a few minor adjustments in the survey because of changes in the bed of the river since the first examination. The second series was composed of bancos numbered 59 to 89, which were scattered over the lower valley in the same region as those of the first series. These were eliminated in 1912. 'f'hereafter a considerable lull in the banco activities of the Commission occurred, no further work being done until the series of 1929, in which bancos numbered 90 to 131 and 501 and 502 were eliminated. The numbers 90 to 131 are to be found in the same region embraced by the first two series, while numbers 501 and 502 were the two bancos found eliminable in the portion of the Colorado River which forms the international boundary. The fourth and latest series to be eliminated was made up of bancos numbered 301 to 319 inclusive, which are found in the El Paso-Juarez Valley. Since February 1, 1930, some twenty-one bancos have been eliminated by action of the Commission, but the number and scattered nature of these have not warranted their publication in a series. It is significant that these latter eliminations were made as individual cases by the Commission and not for the most part in groups. A more detailed discussion of banco elim­inations may present the problem in clearer outline. With regard to the bancos of the first series the Commission considered that, because of the specific reference to them in the treaty, its sole duty was to express approval with regard to the point that the consulting engineers had followed as closely as possible the boundaries as shown by the maps of the survey of 1897-98.2Several changes in the river had • occurred, thereby altering traverses around the bancos. Two of the bancos named in the treaty had entirely disappeared, while one was not included in the former survey. The commissioners signed the maps and sent to their respective governments the minutes of the proceedings, which were promptly approved.25 The first elimination of bancos under the second clause of the treaty was effected in 1910.26 The Commission met on May 14, 1910, to con­sider the report of the consulting engineers on twenty-two bancos, all but one of which had been formed subsequently to the survey made in 1897-98; the Commission eliminated these bancos, having numbered them from 59 to 80. This action was approved by the United States on June 6, and by Mexico on June 8, 1910.21 The consulting engineers were then instructed to place monuments around the bancos in the manner followed in the previous series.25 uJoint Journal, March 10, 1910, Dancos, First Series, pp. 14-16. 2;Jbid., p. 26. The names and numbers of these bancos may be found in ibid., p. 27; or see Appendix IX. 26Bancos, Second Series. All the Banco series contain excellent maps of the bancos. 21 Ibid., p. 9. 2sJoint Journal, Aug. 1, 1910, ibid., p. 24. Boundary Commission. United States and M e.1:ico Canyon of Rio Grande: Presidio. Upper end of Presidio Valley, looking northwest (Photograph by Louis V. Olson: May 8, 1935, copy supplied by Commissioner L. M. Lawson, International Boundary Commission, United State,; and Mexico ) The University of Texas Publication A special issue, in 1911, was made of the disposition of Solisefiito Banco; hence, to illustrate procedure, the case may be considered. The consulting engineers were unable to agree on this tract, and so, in accord­ance with the rules, they submitted separate reports. Commissioner Mills chose to agree with the Mexican claimants on this question, and the decision to eliminate it was made on March 27, 1911.29 The Commis­sion took exhaustive testimony as to this banco, and the American claim­ants registered protests even after the issue had been decided ; but the decision of the Commission was approved by the governments despite 0 these objections.~ Seven additional bancos, 82 to 88, were eliminated on February 14, 1912, No. 89 two days later, and both governments approved this action on March 20, 1912. H These thirty-one bancos ( 59 to 89), comprising series 2, were grouped and reports on them submitted to the Depart­ment of State which were agreed to on November 7, 1912.32 As stated previously, there was, after the elimination of the second series of bancos, a long lapse in the activities of the Commission in regard to bancos. During most of the period from 1912 to 1923, Mexican revolu­tionary disturbances and the absence, except for a short period, of a Mexican government recognized by the United States prevented any active work by the Commission. In April, 1919, it considered resumption of banco elimination on the Rio Grande, ordering a survey of the El Paso­Juarez and Presidio valleys. However, none was made in the El Paso­Juarez Valley at that time.33 The surveys for the third series of bancos was ordered by the Commission on January 14, 1926.34 The Secretary of the Interior had requested that the Commission also consider the pos­sible bancos on the international portion of the Colorado River. At this session the Mexican commissioner presented a claim to a tract known as Farmer's Cut. An investigation was agreed upon, and it was decided to enlist the aid of the United States Army Air Service in the making of the observations, the expense to be borne equally by the two govern­ments. The Commission met again on August 4, 1926, at El Paso, to consider the survey made by the consulting engineers.:'5 It was agreed on September 8 to adjourn to Yuma, Arizona, so that the commissioners might make a study on the ground.36 Hearings were accordingly held znMills to Knox, April 13, 1911, ibid., p. 48. soKnox to Mills, June 5, 1911, ibid., p. 45. 01 lbid., pp. 28, 34. 32Adee to Mills, Nov. 7, 1912, ibid., p. 8. The list of these bancos may be found in ibid., p. 71. See also Appendix IX. The Lower Valley from Roma to the Gulf was then surveyed and mapped. See Joint Report, Oct. 24, 1912, entitled on cover, Depart­ment of State, Survey of the Rio Grande, Roma to the Gulf of Mexico. ~aMinute for April 16, 1919 (MS). 34 Minute No. 70, Jan. 14, 1926, Bancos, Third Series, p. 16. s:;Minute No. 83, Aug. 4, 1926, ibid., p. 17. •r.Minute No. 84, Sept. 28, 1926, ibid., p. 25. Boundary Commission, United States and Mexico at Yuma and Algodones, Lower California, in September, 1926, and various witnesses testified. On October 26, 1927, the Commission recom­mended the elimination of the two banc0s and the restoration of the boundary line to the center of the normal channel of the Colorado. These were the first bancos outside of the Lower Rio Grande to be eliminated. The Lower Rio Grande Valley was again the subject of consideration when the Commission ordered on October 1, 1926, the survey of the section from Roma to the Gulf of Mexico. Roma is upstream from Rio Grande City some fifteen or twenty miles; consequently, the lower valley section was extended by this agreement.3 7 On September 1, 1927, the consulting engineers reported on bancos in this region numbered from 90 to 131, with the exception of No. 91, with regard to which the investi­gations had not at that time been completed. Bancos No. 90 and Nos. 92 to 131 were eliminated as of April 23, 1928, and this action was approved by both governments by May 5, 1928. 3 8 Banco No. 91, known as Las Adjuntas, caused some difficulty. A public hearing regarding it was held at Rio Grande City on March 21, 1928, and thirty-seven witnesses were heard.39 At the meeting in El Paso on April 21 the American commissioner asked for more time to study the question. The Commission eventually decided that the banco should be eliminated, and this decision met the approval of both governments on June 16, 1928.40 The last major group of bancos to be considered were those in the El Paso-Juarez Valley. The Commission met on October 2, 1924, in Juarez and, in view of the fact that no agreement could be reached on the old surveys,41 ordered a new one of El Paso Valley from El Paso to Fort Quitman. The report of the consulting engineers on the six­teen bancos discovered in this examination of the river was studied by the Commission on September 10, 1925,4 ~ but decision was postponed until the Commission had disposed of the bancos contained in the third series. Nearly five years later, on February 20, 1930, the Commission met at El Paso to consider bancos 301 to 319 in the El Paso-Juarez Valley, and testimony concerning these bancos was requested.•3 It was s1Minute No. 87, Oct. 1, 1926, ibid., p. 33. 38Minute No. 104, April 23, 1928, ibid., pp. 33-35. 39Minute No. 103, April 21, 1928, ibid., pp. 51-57. 40Minute No. 106, May 26, 1928, ibid., p. 67 and the letter, Secretary of State to Lawson, June 16, 1928, ibid., p. 68. For a list of the names and numbers of the bancos eliminated in this Third Series see ibid., p. 15, or Appendix IX. 41 Minute No. 50, Oct. 2, 1924, Bancos, Fourth Series, pp. 18-19. 42Minute No. 65, Sept. 10, 1925, ibid., p. 19. For map of the El Paso-Juarez Valley see App. XI. 43The delay in the elimination of the bancos in the El Paso-Juarez Valley was apparently due to the hesitation of the United States to proceed with the elimination. This is understandable in view of the factual situation. Several of the bancos had, since their segregation, been occupied by American citizens and were being claimed under Texas patent. It is supposed by many that the hesitation of the United States The Unirersity of Te:eas Publication discovered that ten of the nineteen bancos could be eliminated without opposition, and this was done. After some opposition Weber and San Lorenzo were eliminated. Then Nl'1fiez, Gallego, Cachanilla, Rincon de Marcelino, Camp Rice, Piedra, and Max Muller were declared to be bancos.H The consulting engineers had reported in 1926 with regard to five tracts, three of which they belieYed had been formed by erosion and two to be doubtful bancos.'"· Three of these, the Buchanan, Rivera, and Guadalupe cases, were taken up during October, 1930; it was decided in each case that insuffident proof of an avulsive change was at hand, and as a result they were held to have been formed by erosion and accretion.'" Since February I, 1930, twenty-one'7 bancos have been eliminated. Thirteen of these were in the Presidio Valley, one each in the Rio Grande Canyon and El Paso-Juarez Valley sections, and five in the Lower Rio Grande Valley. 4. PROCEDURE AND PROBLEMS IN THE ELIMINATION OF BANCOS Certain procedural matters involved in the performance of this func­tion may now be considered, though most of the steps might be apparent from the foregoing discussion. Ordinarily the existence of a banco is brought to the attention of one of the commissioners by statement from a local official to whom a private citizen has made complaint. This was not the case with all of the original fifty-eight bancos disposed of in the treaty, since many of them were discovered by the consulting engineers in their surveys of the river. Seven exceptions to this rule were also found among the later bancos. Concerning them the engineers expressed the opinion that in view of the advancing values of land in the section concerned it would be well to eliminate any bancos dii;covered even was overcome by the seeming intention of Mexico to hold up the Rectification Treaty until the t·ancos were eliminated. Some of the above information, for sufficient reasons, cannot be documented or be 5ub;::tantiated by refrrences to its 5ource. The local problems relating to these bancos are discussed in later chapters. HMinute No. 121, March 3, 1930, Ba11cos, Fourth Series, pp. 31-33; 122, March 18, J!130, ibid., pp. 37-39; 123, March 21, 1930, ibid., pp. 41-43; 124, April 9, 1930, ibid., pp. 46-47; 125, April 25, 1930, ibid., pp. 49-50. "·Joint Report, Aug. 19, 1926, ibid., pp. 60, 61-62. El Frijolar and Senecu were two tracts which were held without question to be erosive changes. • 6 Minute No. 130, Oct. 4, 1930, ibid., p. 57; Minute No. 131, Oct. 20, 1930, ibid., pp. 58-59; Minute No. 132, Oct. 21, 1930, ibid., p. 59. For a list of names and numbers of bancos eliminated in this series see ibid., p. 71; or see Appendix IX. "These banco cases have been comi:iled from the unpublished minutes of the Com­miEsion. Minute No. 119, Feb. 4, 1930; 120, Feb. 19, 1930; 126, April 28, 1930; 134, May 20, 1931; 136, May 22, 1931; 138, Feb. 25, 1932; 139, May 12, 1932; 141, July 17, 1933; 142, Feb. 27, 1934; and 166, Apr. 3, 1939. Some of these date before and ~ome after the Fourth Series, which was devoted to the El Paso-Juarez Valley. Boundary Commission, United States and Mexico though there had been no claimants for them.48 Usually, however, a commissioner places the question before the Commission and requests that an examination be made. The engineers then are instructed to prepare a survey of the potential banco. In some of the recent surveys the United States Army Air Service has aided the Commission; this was foe case in the charting of the international section of the Colorado River in 1926, the expense being shared equally by the two govern­ments.40 The engineers, in making the survey, generally have worked together, although when work was pressing, as in the case of the orig­inal fifty-eight bancos, the task was divided, with the engineers con­ferring frequently and examining each other's notes. In all save rare instances, the engineers have submitted joint reports. In the case of Solisefiito Banco they submitted separate reports, and it fell to the com­missioners to solve the difficulty. The Commission agreed on December 6, 1907, in a session called to resolve some of the difficulties relating to elimination of bancos, that the engineers' reports should as fully as possible, contain the following information: (1) only matters directly connected with the subject at hand; (2) indications as to whether the change was avulsive or accretive, together with reasons for the decision; and (3) reference to such points on the map as would make for full understanding of the map. The Com­mission decided that the maps of bancos should be prepared so as to show the following points: (1) the land in question, the present channel, the abandoned channel, and any former channels that might be clearly platted from the records of the Commission; (2) all houses, public roads, common highways, canals, fields, and such relevant material in order to fix the location in mind; and (3) traverse lines and monument points, banks of the river, lines and the width of the normal channel. It was further determined that all maps should be drawn to the scale of 1 :5,000, and that a general map for each banco district should be prepared on a scale of 1 :25,000.50 It was likewise early resolved that each banco should be numbered by the commissioners after the examination and approval of maps and reports of the engineers.5 1 The engineers, in the collection of data, necessarily encountered the various claimants to the tracts involved. A large majority of the bancos eliminated have been disposed of without contests; but with the gradual increase of population the number of bancos involved in private title contests has increased, as in the case of San Lorenzo and Weber bancos, where tracts are located near centers of population. Areas located near 48Joint Report, Jan. 2, 1912, Bancos, Second Series, pp. 29-33. Those seven bancos were in the Lower Rio Grande Valley. 49Minute No. 70, Jan. 14, 1926, Erancos, Third Series, p. 16. The use of aerial maps is a notable development in boundary marking and cartography. 50Joint Journal, Dec. 6, 1907, Bancos, First Series, pp. 10-13. s11bid., p. 13. See n. 23. The University of Texas Publication El Paso have occasioned the greatest difficulty. The names of con­testants are furnished to the Commission by the engineers in their report, and frequently the engineers have managed to procure affidavits from contestants before the Commission has turned its attention to the settlement of the matter.''2 In all cases of banco elimination, the commissioners have repaired to the spot to observe the indications of change of channel; and in cases where contestants have appeared, hearings have been held to take testi­mony.53 These are arranged in advance by the Commission. This is sometimes done by publishing in a newspaper a notice of the time and place of hearings, e.g., the hearings on Fain and Farmer's bancos on the Colorado River, where the meeting was advertised three days in advance in newspapers at Yuma, Arizona, and at Calexico and Mexicali.54 In most cases, however, where the claimants are not numerous, the arrange­ment of hearings is left in the hands of the consulting engineers, who, as has been said, are, as a matter of course, acquainted with the con­testants and their claims. Thus in the case of Solisefiito Banco, the con­sulting engineer gave the American contestant two weeks notice of the hearings of the Commission on that banco.''" In the elimination of the contested bancos in the Presidio Valley in 1930 the engineers were instructed by the Commission to investigate the conflicting claims and to arrange for hearings.'rn Some of these hearings attain considerable magnitude; especially has this been true in recent years. Thus in the cases of the San Lorenzo and the Weber bancos in 1930 the Commission heard many witnesses. Likewise in the disputed cases in the Presidio Valley in 1930, involving five tracts, forty witnesses testified." It should be noted that when ver­ bal testimony conflicted with topographical data, the Commission allowed the latter to prevail. It was early seen that interested persons might have convenient memorieR, and the commissioners agreed on December 6, 1907, that the best evidence on the elimination of bancos would be the report and maps of the joint consulting engineers, and if this were not conclusive, or if any doubt were expressed by the engineers, then the Commission would resort to the examination of well-qualified witnesses.58 This provision does not render attestations useless, since the report of the engineers may itself be based largely on testimony; but it does obviate " 2A pertinent example is Banco No. 91, Las Adjuntas, in the Lower Rio Grande. Joint Report, Sept. 1, 1927, Bancos, Third Series, pp. 57-63. 03Arts. IV and VII, Treaty of March 1, 1889, 26 Stat. 1512, 1514, 1515, and 1516; App. IV. 54Minute No. 84, Sept. 8, 1926, Bancos, Third Series, p. 25. 5'•Mills to Josiah Turner, April 24, 1911, Bancos, Second Series, p. 45. r.GMinute No. 120, Feb. 19, 1930 (MS). 5' Ibid. 58Joint Journal, Dec. 6, 1907, Bancos, First Series, p. 10. The question of the admissibility of evidence on the part of the engineers to determine the fact of an avulsive change, the evidence taken while on location, will be considered below. Boundary Commission, United States and Mexico the possibility of confusion caused by testimony which is clearly at odds with topographical facts as determined by the engineers. The decision of the engineers has on all occasions been held to be the best evidence. In the case of Bermudez Banco No. 303, it was stated by the engineers :59 All this shows that this is a case of a banco under the 1905 Treaty for the elimination of bancos, and we fail to see how verbal statements can be used as arguments against the evidence of the ground and our maps and data. The Commission stated in its Journal of March 27, 1911, that it had "been the experience of the Commissioners that testimony of witnesses as to the movements of the river, even for a short period back, was almost wholly unreliable."60 The commissioners have continued to take such testimony, however, so that all parties may be heard and no summary decision made. When all evidence has been given and considered in the light of the findings of the consulting engineers, the Commission then makes its decision. In the earlier eliminations it was stated by each commissioner writing to his government that "If the Department approves of the pro­ceedings of the Commission these bancos wiII be marked and elim­inated ..." ;61 but in later years, no doubt because of its remoteness from troubles encountered in the drafting of the treaty, the decision declares that certain bancos are "hereby eliminated."62 The minute of the Com­mission containing the decision, together with the maps and report of the engineers, is communicated to the two governments, according to Article VIII of the treaty establishing the Commission, and becomes effective unless disapproved by one of the governments within one month.63 Here another tendency is to be noticed. In the earlier elimi­nations the two governments were careful to approve the proceedings of 1 the Commission within the specified limit,G·but later mere acknowledg­ment of the communication is made to the commissioner, and the act becomes effective automatically.65 Immediately after the decision is made, the engineers are instructed to run a new traverse and to establish monuments on the banco. Upon the completion of this duty the engineers again report, and the commissioners notify the fact of the monumenta­tion to their respective governments. The elimination is then considered complete. Many problems in the elimination of bancos have developed with regard to the determination of data, some of them having arisen even 5 9Joint Report, July 30, 1925, Dancos, Fourth Series, pp. 19, 25, quoting Joint Report, Dec. 23, 1907. 60Joint Journal, March 27, 1911, Bancos, Second Series, pp. 46, 48. 6 1Mills to Secretary of State, May 14, 1910, Bancos, Second Series, p. 9. s2Minute No. 122, March 18, 1930, Bancos, Fourth Series, pp. 37, 38. Minute No. 166, April 3, 1939 (MS). 63Art. VIII, Treaty of March 1, 1889, 26 Stat., 1512, 1516; App. IV. 64 Cf. Adee to Mills, Nov. 7, 1912, Bancos, Second Series, p. 8. 65Cf. White to Lawson, March 15, 1930, Bancos, Fourth Series, p. 34. The U11il'ffsity of Tuas Publication before the treaty was drafted. One question of a practical nature was presented with regard to the provision of the earlier treaty that the boundary line should "follow the centre of the normal channel of the river."69 Where the banks were well-defined, no trouble was encountered, but where only one or neither bank was plain, there was difficulty in reaching a decision. Consequently the Commission, at its meeting on December 6, 1907, ruled that where there is only one live bank, the average width shall be determined by taking the average ·width of the river both up and down stream where it flows in compRratively well­defined banks, and the boundary shall be determined by measuring half the distance of this average width from the live bank. Where neither bank is live, the boundary line will follow the center of the deepest channel, and the banks will be determined by measuring half the assumed width from this center.,;; So far as was ascertained this prob­lem was definitely settled in this fashion. An unusual situation arose in making the survey of 1909 with regard to the fifty-eight bancos embraced by the treaty. The original imrvey of 1898 was showTI to have included two bancos, numbered 50 and 54, which by 1909 had entirely eroded away.~' Nothing could be done in this case except to overlook the elimination of them:·" Problems have also arisen from the mass of accumulated data on the various bancos. Corroborative evidence on the topography is necessary in almost every case. It was obserwd by the engineers in 1910 that frequently, when a banco was formed, the landowners would build a fence in the middle of the old bed. using cottonwoods for posts, and these posts would take root and grow, thus forming a row of trees along the boundary.:·• \Yhere other types of post material were used, the result was naturally not so gratifying. This practice was helpful to the engi­neers in sun·eying many of the original fifty-eight bancos. The most nowl and interesting of the fence-building undertakings was disclosed in the survey of 1909 on La Isla Banco No. 8, in the Lower Valley. Here the riwr cut into the old bed in such a manner as to reveal three fences, one on top of the other, the lower two having been successively buried by deposit from overflows." Vse was made of such fences in the determination of banco traverses on bancos numbered 95, 97, and 99, in the Lower Yalley in 1926.'" Where the old bed or channel of the river was plain, there was naturally little difficulty in establishing the traverse, but this was often not the case, especially when the survey was made MArt. I, Treaty of Xo,·. 12, 188-1, 2-1 Stat. 1011-1012; App. III. 6'Joint Journal, Dec. 6, 1907, Ba11C"os. First Series, pp. 10, 11. ~'Joint Report, March 10, 1910, il>id., pp. 17, 23. 6~/bid. '''/bid., p. 20. Many miles of cottonwoods, or alamos. may be seen along the old river beds in the Rio Grande \"alley. " /bid., p. 2-1. :~Joint Report, Sept. 1, 1921, Eanc:os. Third Series, pp. 36, -10-11. Boundary Commission, United States and Mexico several years after the cut occurred. Often in cases of this kind, the location and age of trees and vegetation were used to help establish the fact of avulsion and the location of the old bed.'3 Many times, too, the engineers have had to base their findings upon oral information, and they have unhesitatingly done this in uncontested cases. The Commis­sion resolved on May 12, 1910, that the engineers might use all data available, oral and \Vritten, so long at it was noted in the report, and provided that such would not be considered as judicial testimony, and furthermore that no one should be compelled to testify before the engineers." Such attestation, therefore, is legally distinct from the type taken from contestants at hearings held by the Commission. Many examples of such corroborative testimony are found throughout the reports of the engineers.'" Another method of ascertaining more fully the extent and location of avulsive change has been by reference to previous surveys. Thus in 1897-1898, in surveying the Lower Rio Grande Valley for bancos, the engineers frequently referred to the work of Emory and Salazar, in 1852, in order to determine bends in the old channel. In 1909 they used both the survey of 1852 and that of 1897-98, and all three of these were used to establish the true topographical outline in the mapping of the same region for the bancos of the second series. Likewise the United States Land Office survey of 187 4, as well as that of the same region in 1906 by the consulting engineers, were used in 1926 in establishing the topographical outline in the international section of the Colorado River. The charting of the El Paso-Juarez Valley was facilitated by the Emory-Salazar survey of 1852 and by the work done in that region by the consulting engineers in 1907. The survey made of the Presidio Valley in 1913 by the consulting engineers served as the basis of the 1930 observations.'c. AJt:hough this method of checking by no means simplifies the work of the engineers, in fact often complicating it, never­theless it contributes to the more accurate ascertainment of the location of former channels of the rivers. Instances of bancos having no frontage on the river have caused some vexation. In the case of La Bolsa Banco No. 27 the traverse was made around the tract and closed at the place where the avulsion took place, the rlver having receded from this point.'; A line was drawn to the river from the spot where the traverse was closed. The same difficulty rssee data on bancos 62, 66, 69, 75, 76, 77, 79, and 80, in Joint Report, May 4, 1910, Bancos, Second Series, pp. 11, 14ff.; also data on bancos 404, 405, 512, in unpublished Joint Report, Jan. 27, 1930. "Joint Journal, May 12, 1910, Bancos, Third Series, p. 14. rsJoint Report, May 4, 1910, Bancos, Second Series, pp. 11, 19; Joint Report, July 29, 1912, ibid., pp. 36, 37. <6The information contained in this paragraph was obtained by consulting the Joint Report, passim. 11see map, Bancos, First Series, p. 58. The University of Texas Publication was found in several cases where new bancos were cut in front of already existing ones. Thus in the cases of Santo Domingo No. 55, Rosario No. 31, Toluca No. 32, Camargo No. 57, El Barrito No. 93, and Rancho Viejo No. 103, the bancos were cut in front of old ones, and the traverse was run to the center of the old river bed upon which it fronted and there closed, much in the manner in which La Bolsa was closed. The exception in this case is understood when one considers that the section which closes the traverse of the isolated banco is usually part of the traverse of the banco on which the isolated banco fronts.78 A related problem arose with regard to Campamento Banco No. 74.79 In this case it was discovered that the Rafael Garcia Banco, according to the 1898 survey, had been a normal pear-shaped banco, with the small end of the pear fronting on the river; but an examination in 1909 dis­closed that the river had formed a loop by erosion extending up into the banco, though not quite reaching its center. In 1910 the engineers dis­covered that since the survey of 1909 the river had changed its course and built up another banco superimposed upon the old one. The traverse of the original banco, which had been left in a half-moon shape, was simply tied into the traverse of the new banco where the old bed ceased to exist. Still another difficulty developed in three cases, those of Benavides Banco No. 10, Toluca Banco No. 32, and Camargo Banco No. 57,80 where the river had cut an additional opening in the banco in some part of the traverse other than the original opening on the river. In these cases the engineers ran the traverse across the cut to the point where the old channel reappeared, this procedure having the effect of ignoring the encroachment of the river. Another question confronting the engineers was the application of the provision in Article III of the banco treaty,81 which states that On all separated land on which the successive alluvium deposits have caused to disappear those parts of the abandoned channel which are adjacent to the river, each of the extremities of said channel shall be united by means of a straight line to the nearest part of the bank of the same river. The engineers observed in 1910 that in some cases this rule if applied would have resulted in the inclusion of territory outside of the banco, and, therefore, it was necessary for them to trace the location of the old channel even when it was filled with sediment.82 With regard to this 1ssee Joint Report, March 10, 1910, Bancos, First Series, pp. 17, 22, 23; maps, ibid., pp. 58, 62, and Eancos, Third Series, pp. 76, 86. A glance at the map of the river changes near El Paso from 1852 to 1907, App. XI, will reveal the complexity of the !:'ituation. 79Joint Report, May 4, 1910, Bancos, Second Series, pp. 11, 20. soJoint Journal, March 10, 1910, Bancos, First Series, pp. 14, 15; Joint Report, March 10, 1910, ibid., pp. 17, 22. s135 Stat. pt. 2, 1863, 1966-67; App. V. szJoint Report, March 10, 1910, Bancos, First Series, pp. 17, 19. Boundary Commission, United States and Mexico and other terms the engineers concluded that no treaty could be drafted which would, in a few sentences, specifically cover all cases which might arise, and that liberal and intelligent interpretations would have to be made.83 The injustice that would result from a literal application of the above provision in some cases is apparent. The engineers in the cases of Phillips Banco No. 6, Capote No. 13, and Juanita No. 42, met the problem by laying the traverse so as to divide the accretion equi­tably between the banco and the mainland on each side of it. 84 They were justified in applying the rule in this manner with regard to these early bancos because of the particularly complete information at hand on them, especially the maps of the survey of 1898, which were made before the accretion had occurred. Of the later bancos, the engineers found that to have drawn the shortest line to the river would have given the banco too great a share of recently accreted land, the newer formation of which was attested by comparison of its vegetation with that of the banco. The solution here adopted was to run the traverse from known points in the old channel in the direction in which the channel would obviously have run toward the present stream. It was observed that the traverse as thus established divided the ground equi­tably and followed the spirit-if not the letter-of the banco treaty pro­vision.80 In later years, however, the engineers have rather religiously followed the regulation of the treaty.86 The Commission early foresaw the possibility of problems with regard to an alteration in the bed of the river prior to the one under consider­ation for elimination. Hence it decided on December 6, 1907, that such previous change would be assumed to have been caused by gradual erosion and deposit unless surveys, testimony, and evidence on the ground should show the earlier change to have been avulsive.87 A practically identical resolution was passed by the CoMmission on May 12, 1910, to the effect that if a counterclaim based on a change anterior to the one under con­sideration was presented, the engineers should reject it unless such change were conclusively supported by strong physical evidence."3 Al­though these resolutions would seem specific enough, the loophole is apparent in that it is for the engineers to determine what is "conclusive proof" and "strong physical evidence." The contention over Solisefiito Banco No. 81 is the only one on record in which the consulting engineers differed so strongly that they felt constrained to submit separate reports. Solisefiito Banco was cut from 83/bid., p. 25. 84/bid., pp. 21-22. 85Joint Report, May 4, 1910, Bancos, Second Series, pp. 11, 15. 86See, for examples, El Calero No. 316, and Gallego No: 312, in Joint Report, July 30, 1925, Bancos, Fourth Series, pp. 19, 29, 30. 8 •Joint Journal, Dec. 6, 1907, Bancos, First Series, p. 10. ssJoint Journal, May 12, 1910, Dancos, Third Series, p. 14. The University of Texas Publication Mexico about 1885. The American claimants alleged that it had previ­ously been cut from the United States, about 1865. The consulting engineers took testimony from many persons, but the American engineer discredited all of them save the American claimant, Josiah Turner, whose remarks in the hearing at hand conformed to his statements made in 1898. The American engineer took the attitude that the Mexican claim­ants and witnesses were advancing ignorance of the treaty as an excuse for not presenting earlier their claim to the banco. He evidently over­looked the contention of the Mexican side that the topographical data, even if true, were insufficient to support a theory of prior avulsive change.>9 The Mexican consulting engineer expressed the opinion that the only proof offered by the American claimants was that of Turner, and that, in view of his refusal to resort to the ground to describe the change, he was probably confusing Solisefiito with another banco. The Mexican engineer asserted further that a prior avulsive change was not proved on the ground, and that to allow Turner's contention would establish a complicating precedent.90 The Amf)rican engineer went so far as to submit photographs of the remnant of land allegedly left on the Mexican side after the two avulsions.91 The commissioners decided to examine the ground personally to observe the evidence. Upon so doing, the American commissioner favored the findings of the Mexican con­sulting engineer, and thus agreed to eliminate the tract as a banco,9 ' not, however, until after lengthy hearings had been held and much vary­ ing testimony was received. Another point in the dispute over Solisefiito concerned limitations upon the offering of evidence. The American commissioner wrote to the American claimant, Josiah Turner, on April 4, 1911, informing him that the tract had been adjudged a Mexican banco. Turner replied, asking more time to present proofs to support his views. The American com­missioner responded that he understood the American consulting engi­neer had given Turner two weeks notice of the hearings of the Com­mission, but that Turner's request would, nevertheless, be referred to the Department of State, which, on June 5, 1911, approved the action of the Commission and denied Turner's appeal for additional time.n A problem closely related to the matter of prior change, and creating quite as much difficulty as had been caused by Solisefiito, was encountered in Las Adjuntas Banco No. 91, in 1928. This tract was situated inside the fork at the confluence of the San Juan and the Rio Grande. A short distance upstream the two rivers were separated by only a narrow neck, and when this eroded through, the Rio Grande abandoned its former channel and flowed thenceforward in the bed of the San Juan. It ·will S9Joint Report, April 20, 1910, Bancos, Second Series, pp. 50--56. 9°Report of Mexican Consulting Engineer, May 4, 1910, ibid., pp. 56-60. 9 1Follett to Mills, July 20, 1910, ibid., p. 56. 9~Joint Journal, March 27, 1911, ibid., pp. 46-49. 93See correspondence in ibid., pp. 44--45. Boundary Commission, United States and Mexico be seen from this description that the tract involved was not a true banco, since this latter type is made by the river forming a loop and then breaking across the base. However, the point that makes this case distinctive and allies it with the manner of change seen in Solisefiito Banco is the American claim that the case involved a double avulsion. Witnesses appearing on behalf of the American claimant asserted that the old bed had existed for many years, that in 1923 the river broke into this old bed and for a time flowed in both channels, and that in 1924 it resumed its course as before 1923. The Commission at a public hear­ing on M~rch 21, 1928, heard thirty-seven witnesses and considered several affidavits. The consulting engineers had agreed in their report that the change had taken place as first stated above, and the commis­sioners after making an examination on the ground and conducting hear­ings decided that the tract should be eliminated.';4 T"hus it might be said that, in a restricted sense, a prior avulsive change was again dis­avowed by the Commission for want of conclusive topographical data to prove that it had occurred. The records reveal that the Commission has considered only one case in which there was an intimation that the cut was made by artificial means. This was Farmer's Banco No. 501, in the Colorado River Valley. The American consulting engineer in 1906 said that he could not det&­mine whether or not the change had been man-made. Witnesses pro­fessed to have no knowledge of any artificial means used to force the avulsion; hence, the banco was eliminated.95 With regard to the tracts that are submitted to the Commission for elimination and found upon examination to be erosive and not avulsive changes, little can be said. Because of the manner in which the Com­mission publishes its reports, material involving negative decisions might be ignored. However, the engineers in making their survey of the El Paso-Juarez Valley in 1926 reported unfavorably on three tracts, namely Buchanan, El Frijolar, and Senecu, for which claimants alleged avulsive changes, and two tracts, Guadalupe and Rivera, whose avulsive origin was held by the engineers to be doubtful. The Commission adopted the engineers' views on all of these.96 The treaty limitations with regard to size of area and number of inhabitants have not caused much trouble. The true banco rarely exceeds the limit of 250 hectares. Camp Rice Banco, at the time of elimination, had an area of 261.7 hectares, but the area in 1907, at the time of the 94Joint Report, Sept. 1, 1927, Bancos, Third Series, pp. 57-63; Minute No. 103, April 21, 1928, ibid., pp. 51-57. The rather heated controversies over El Paso-Juarez bancos arose partly because lawyers questioned whether the Commission might thus sum­ marily dispose of alleged prior avulsion. 95Joint Report, April 30, 1926, ibid., pp. 17-24; Minute No. 85, Sept. 17, 1926, ibid., pp. 25-29. 96Joint Report, Aug. 19, 1926, Bancos, Fourth Series, pp. 60-66. For the Commis­ sion's decision on them, see Minute Nos. 130-132, Oct. 4, 20, 21, 1930, ibid., pp. 57-59. The University of Texas Publication examination, was only 233.9 hectares.9 ' Evidence on the maps showed that land had accreted to the banco, at least since 1907, and inasmuch as the avulsion took place about 1886, the Commission chose to accept the disclosure of the first survey. The converse of this situation was found in the case of Farmer's Banco on the Colorado River, where the engi­neers found, from the maps of the United States Geological Survey of 1903, that before the cut was made in 1905, the tract contained more than 300 hectares. However, in the absence of a survey by the engineers before 1907, and in view of the finding of the engineers in 1907 that the banco contained 233 hectares, and the lack of evidence of action by the river on the banco subsequent to the change, it was recommended that the banco be eliminated.!•s Thus it might be concluded that the Commission by precedent has ruled that the area of the banco at the time of the avulsive change or at the earliest survey thereafter shall obtain with regard to the treaty limitation as to size. With regard to the limit of population the same general statements hold true. San Lorenzo Banco, at the time of its elimination, had more than three hundred inhabitants, although at the time of the avulsive change there were no inhabitants, and, as the engineers stated in their report in 1925, those who had established themselves there since the change did so in good faith during the period of inactivity of the Com­mission.99 Farmer's Banco, with one hundred four persons at the time of the survey, is next in rank as to population. Camp Rice Banco follows with sixty-six inhabitants, and Weber Banco fourth with forty-one. So far as was ascertained no banco was considered and elimination refused by the Commission because of the limitation as to either size or popu­lation. 5. CONCLUSION From the adoption of the banco elimination treaty through February, 1940, the International Boundary Commission eliminated one hundred seventy-two bancos.100 A comparison of figures shows the advantage in favor of the United States, one hundred seven going to the United States, and sixty-five to Mexico. Mexico has gained 3,353.6 hectares of land as compared with the much greater figure of 6,437.0 hectares gained by the United States. This disparity might be explained in part by the fact that, as a general rule, land on the American side of the border is more fully developed, and banco cuts were thus immediately called to the attention of the Commission.101 9p., II, 918-920. 56/bid., pp. 1004-1006. 5' Ibid., pp. 1023-1027. s;,Proceedings, I, 176-178. 5 ~0lney to Romero, Feb. 29, 1896, Chamizal, U.S. App., II, 916, 917. 6<•Mills to Blanco, Nov. 9, 1898, ibid., pp. 999, 1000. 61Mariscal to Mccreery, May 1, 1899, Ch<1Jmi.za1, U.S. Aw., II, 1015, 1017. 6 2Mariscal to Clayton, Dec. 22, 1899, ibid., pp. 1033-1034. Boundary Commission, United States and Mexico 105 in regard to the project of a treaty in the matter of the bancos of the river Bravo, there arises a grave -constitutional question which requires profound and long study; that of the lack of power on the part of this government to cede portions, limited although they may be, of the Mexican territory. This, in effect, negatived the opinion expressed by Commissioner Mills that banco elimination would deal with areas of indefinite sovereignty. It is to be inferred that the Mexican Government after considering the desirability of banco elimination had concluded to accept the view that it would mean alienation of part of its territory and in turn incorpora­tion of part of erstwhile American soil. As to the constitutional ques­tion,63 it had been raised before by the Mexican Government in regard to boundary adjustment along the water boundary. On December 3, 1897, the Commission drew up a report regarding a proposed straightening of the river bed at El Paso. A part of this report drew a denouncement from the Mexican Government,64 Matias Romero, the Mexican Minister to the United States, writing Secretary Sherman that his government could not cede any portion of Mexican territory even though the land be of a particular type.6'' Mexico's "long and profound study" of the problem of squaring banco elimination with her constitution was interrupted late in 1904 by a new suggestion from the United States. The United States Secretary of State wrote to the American Ambassador in Mexico City that inasmuch as the sovereignty of the bancos to be eliminated was in dispute, the question of cession was not involved.60 Ambassador Clayton forwarded this idea to oaThe constitutional question is intriguing in the light of later events. The Mexican Government had forgotten this constitutional inhibition in 1908 when it proposed mutual and reciprocal cession by both republics of certain special areas along the border. Chamizal, U.S. App., I, 375-378; treaty draft in M. B., Env. 27. Oct. 21, 1932, President Rodriguez issued a statement to quiet rumors that his government was about to cede certain portions of the national domain in a pending boundary treaty. "My antecedents as a revolutionary and as a Mexican, and my attitude as President would not allow me to do so," he explained, but he cited no constitutional reasons. New York Times, Oct. 22, 1932, p. 6. In urging acceptance of the Clipperton Island award, A. J., XXVI, 390, Foreign Secretary Manuel Tellez, in Nov., 1932, asked the proposal of an amendment to the Constitution of Mexico to allow transfer of the island to• France; but his reason was not that the Constitution prohibited cession but because the island was included in the national domain in. Article 42 of the Constitution, under the name of Pasion. Excelsior, Mexico, D.F., Nov. 15, 1932 ; see also Act of Dec. 14, 1932, Diario Oficial, Mexico, D.F., LXXVI, No. 21, p. 4. But there were political, if not constitutional, reasons for Mexico's demurrer in 1899, in view of the repercussions that followed President Santa Anna's alienation of part of the national domain in the Gadsden Treaty. H. H. Bancroft, History of Mexico (2d ed.), p. 457; Garber, p. 152. 6~The report as amended in Proceedings, I, 139-140; Chamizal, U.S. App., II, 975-976. 65Romero to Sherman, Jan. 6, 1898, ibid., pp. 967, 968. s6Hay to Clayton, No. 1192, Dec. 1, 1904, ibid., pp. 1042-1043. The University of Texas Publication Secretary Mariscal,67 and the negotiations which had lagged for ten years now proceeded rapidly to consummation. Thus it might be said that the final bases of the treaty were identical with the view expressed by Commissioner Mills accompanying his second draft treaty, that is, that the areas involved were of ambiguous sovereignty. This marked a departure from the theory at first emphasized, that the banco areas were clearly under one or the other of the two sovereigns. The Treaty of Guadalupe Hidalgo, February 2, 1848,68 in its first article, defined the water boundary as being the middle of the river or of its deepest channel. The T'reaty of November 12, 1884,69 amplified this by provisions, declaratory of international law, that the middle of the river or of its deepest channel should remain the boundary line except in the case of avulsive changes. In the light of this treaty there could be no doubt as to the sovereignty of a given piece of land along the water boundary if the facts were established of its relationship to the river after the marking of the boundary line under the Treaty of 1848. The Treaty of March 1, 1889,70 set up a Commission to determine those facts. The Treaty of March 20, 1905,71 provided, with certain limitations, the converse of the Treaty of 1884 as to avulsive changes; it made provision for the elimination of bancos avulsively created from the effects of the Treaty of 1884. Briefly, though the use of the word was scrupulously ~voided in the treaty, transfer of bancos was stipulated; and the basis of transfer was to be the data as determined by the Commission. Yet, as has been seen above, this treaty was completed on the basis that "sovereignty of the bancos in question is in dispute" and that the elimi­nation "could hardly be construed as a ceding of Mexican territory." "Cession of State territory is the transfer of sovereignty over State territory by the owner-State to another State."1 ~ With that definition as a foundation, a recapitulation might bring out more clearly the anomaly which it is sought to present here: First the two states provided that avulsively shifted lands would remain under the old sovereign. Next they devised a means of determining the facts or data in such changes. Third, they made possible the transfer of avulsively changed lands of not more than a specified area or population, conveyance to be effected on the basis of those data. Beforehand, however, they agreed that the sovereignty of such areas was in dispute and that such transfer was not to be cession or "transfer of sovereignty over State territory by the owner-State to another State." They impeached the conclusiveness of the basic data, yet made them the basis of the treaty for transferring the areas in question. This situation is of special interest in view of 67Clayton to Mariscal, Dec. 13, 1904, ibid., pp. 1044-1045. 689 Stat. 922; App. I. 6924 Stat. 1011; App. III. 1026 Stat. 1512; App. IV. 1135 Stat. pt. 2, 1863; App. VII. 12Qppenheim, I, 430. Boundary Commission, United States and Me;tico the importance often attached to so-called preparatory material as an aid in treaty interpretation. It might be worthy of note, too, that the term "transfer" which had appeared in antecedent proposals, was stricken from the terms of the final draft, and in substitution therefor were employed phrases em­bodying variations of the phrase "eliminate from the effects of Article II of the Treaty of November 12, 1884,"-a change in terminology con­comitant with the adoption of the view that the bancos constituted areas of clouded sovereignty and that transfer of jurisdiction would not be cession. The treaty-makers, who agreed that the sovereignty of bancos was in dispute and that the conveyance of them was not cession, wrote into the treaty, however, the following provision :73 Article IV The citizens of either of the two contracting countries who, by virtue of the stipulations of this convention, shall in future be located on the land of the other may remain thereon or remove at any time to whatever place may suit them, and either keep the property which they possess in said territory or dispose of it. Those who prefer to remain on the eliminated bancos may either preserve the title and tights of citizenship of the country to which the said bancos formerly belonged, or acquire the nationality of the country to which they will belong in the future. Property of all kinds situated on the said bancos shall be inviolably respected, and its present owners, their heirs, and those who may subsequently acquire the territory legally, shall enjoy as complete security with respect thereto as if it belonged to citizens of the country where it is situated. Thus it was now provided in the treaty that inhabitants could preserve titles "of the country to which the bancos formerly belonged." Titles emanating from the old sovereign, then, were to be respected, although it had been admitted that the former sovereignty was "in dispute" and "questionable." As has been noted, the Boundary Commission in its earlier practice under the treaty for elimination of bancos avoided the use of terms which mtght infer that the transfer of sovereignty or of jurisdiction was con­summated by its action in regard to a banco.11 Later the Commission changed its terminology in reporting banco decisions and adopted the practice of declaring "dominion and jurisdiction" to be effectively trans­ferred by its acts.7° Thus it might be said that the Commission was returning to the concept of a clear-cut situation in regard to the dominion over banco areas. Inferentially at least, the Commission, in announcing the transfer of jurisdiction and dominion over a banco, would be assum­ing that heretofore it was definitely in one given jurisdiction and dominion and was thenceforth to be in another. 73App. V. The treaty uses the phrase "dominion and jurisdiction." HSee above, n. 3. 1ssee above, n. 6. The Unfrersity of Texas Publica.tion In that connection the act of the Legislature of Texas accepting juris­diction over lands acquired by the transfer of bancos is also in point. 76 This act formally states the acceptance by Texas of such lands and the assumption by it of criminal and civil jurisdiction over them. Thus it would appear that the Legislature of Texas acknowledged, in effect, the transfer of dominion and jurisdiction as an accompaniment of the act of the Commission, but the same law implies, in some of its word­ing, that some of the land was already within Texas jurisdiction. This act of the Legislature, however, touches more distinctly on the matter of jurisdiction than on the matter of sovereignty. It is pertinent here only insofar as it seems to reflect two views as to whether former jurisdiction over the bancos was clear-cut. The courts have dealt with the question of the legal nature of the transfer of bancos in a varied manner. The case of Villareal v. Marks71 is relevant in that although the court did not define the nature of trans­fer as being cession, it did reflect a concept of banco transfer as being a distinct change from one sovereign's dominion and jurisdiction to that of another-a thought in line with the more recent attitude of the Bound­ary Commission, though of less certain accord with the view of the treaty­negotiators that elimination of bancos constituted "the fixing of the boundary separating territory, the sovereignty of which is questionable." The court declared that as a result of the finding and proclamation of the International Boundary Commission "the land in controversy herein, being Banco 91 known as 'Las Adjuntas,' became American territory from and after the 26th day of May, 1928." In the case of Willis v. First Real Estate and Investment Company the issue of cession was more sharply presented. It was the contention of the plaintiff's that the banco area involved in the litigation, namely San Lorenzo Banco No. 302, was territory ceded by Mexico to the United States. The facts pleaded dealt with the pertinent treaties and the dis­position of the land by the International Boundary Commission in Minute 123.'9 The defendant's answer was a categorical denial of such an intent in the Treaty of 1905 as would enable the Commission to effect cession of territory or as would effect transfer by the treaty itself.S' In ruling for the defendant, the court attacked from two standpoints the idea of cession in regard to this banco. Dealing first in the factual aspects, the court held51 That on March 21, 1930, the International Boundary Commission, by Minute No. 123, found the tract of land designated as "San Lorenzo Banco No. 302" to be a 76General Laws of the State of Texas, Thfrty-eighth Legislature, Regular Session, p. 200. "Cited above, n. 14. ;sTranscript of Record, p. 31. '9Bmu:os, Fourth Series, pp. 41-43. soTranscript of Record, pp. 68-70. Bl/bid., pp. 105-106. Boundary Commission, United States and Mexico banco within the meaning of the Treaty of 1905, that it had been Qut off from Mexico by evulsion in 1898. That on the date of such finding by the International Boundary Commission, and long prior thereto, the land embraced in said "San Lorenzo Banco No. 302" had in fact been a part of the United States of America, of which the State of Texas and the United States of America had de facto and de jure possession. Indeeu. it is not made clear by the court of what the determining action of the Boundary Commission consisted; but this at least may be con­cluded from the court's opinion: That in impeaching the very conclusions of the Commission's findings, the court ascribed to the Commission nothing more than declaratory powers, certainly no power to make cessionary disposition of the lands in question. In order to leave no doubt in the matter, the court went further than merely to find that cession was outside of the intention of the Treaty of 1905, declaring that the Federal Government of the United States did not possess the power to cede "title to any land embraced within a State .. . and especially title to any land ... in T'exas."82 The doctrine here expressed might indeed be said to be one of the un­settled points of American constitutional law, a topic which has been dis­cussed speculatively to reach opposite conclusions. Though no case directly bearing upon it seems to have come before the United States Supreme Court, it may be noted that this court has expressed two con­flicting views on the subject. Justice Stephen Field in 1890 denied the power of the central government to cede any portion of a state without its consent ;83 but fifty years earlier this same court, speaking through Justice McLean, had held that the general government might settle all matters of disputed boundary without any obstruction by either States or individuals.84 In 1901 Chief Justice White, with two other justices concurring, expressed the attitude that territories forming a part of the United States cannot be alienated by simple action of the treaty-making power, but added that this may be done "from the exigency of a calam­itous war or the necessity of a settlement of boundaries."8 ·-· Charles Henry Butler held the view that the National Government might cede even a whole state if necessary to the interests of the whole nation.sn Chancellor Kent expressed much the same belief.87 The court's mention of Texas as being in a special category in the matter of the power of the Federal Government to cede a state's terri­tory without its consent also deserves some attention. This idea was 82/bid., pp. 107-108. 83Geofroy v. Riggs (1890), 133 U.S. 258. 84Lattimer v. Poteet (1840), 14 Peters 4. s0 Downes v. Bidwell (1901), 182 U.S. 244, 317. sac. H. Butler, Treaty Making Power of the United States, II, 393. s•James Kent, Commentaries on American Law (12th ed.), Lecture VIII, pt. 1, p. 167; T. D. Woolsey, lntrodiiction to the Study of International Law (5th ed.), pp. 167-168. See also Moore, V, 171-175. The University of Texas Publication pressed upon the court by the respondents.88 The basis is the act of Congress consenting to the admission of Texas into the Union :89 ... And be it further 1·esolved. That the foregoing consent of Congress is given upon the following conditions, and with the following guarantees ... Said state, when admitted into the Union ... shall also retain all the vacant and unappropriated lands lying within its limits, to be applied to the payment of the debts and liabilities of said Republic of Texas, and the residue of said lands, after discharging said debts and liabilities, to be disposed of as said State may direct.... On the other hand, it was stipulated also, ... First, Said state to be formed, subject to the adjustment by this Government of all questions of boundary that may arise with other governments... ,90 Furthermore, the resolution of consent provided : ... That a state, to be formed out of the present Republic of Texas ... shall be admitted into the Union, by virtue of this act, on an equal footing with the existing states, as soon as the terms and conditions of such admission, and the cession of the remaining Texan territory to the United States shall be agreed upon by the Govern­ments of Texas and the United States.... That Texas was to be regarded in no exceptional position in regard to power of the Federal Government to make disposition of state lands for international purposes is clearly to be deduced from such language. In Compafiia Agricola de C. Juarez v. Alderete, tried before the same federal district court as the Willis case and at about the same time, the court further emphasized by inference the view that the function of the Commission must be strictly non-cessionary, merely declaratory in the removal of doubt from disputed areas, in the matter of banco elimination. The plaintiff's claim, in this case, rested on grants resulting from de­nouncements of municipal lands under the national laws of Mexico of December 18, 1893, and March 26, 1894, and a state law of Chihuahua of February 25, 1905.91 Suit was brought for title, possession, and damages against occupants who claimed under Texas sovereignty, de­fendant's title history running back to a survey in 1825 of the town of Ysleta while it was still Mexican soil."2 The land involved was included in a banco which the International Boundary Commission found had been created by an avulsion in 1916, and the Commission had declared its transfer to the United States in 1930."' The plaintiff asserted that "~Transcript of Record, pp. 55-57. s0Joint Resolution of March 1, 1845, 5 Stat. 797. 91'Parties claiming under Texas title in this same banco sought, in another case, to defeat this point by contending that "adjustment" must apply to the initial settling 0f the boundary and would preclude, therefore, further acts altering the boundary since these latter would constitute "readjustment." (Brief for Appellees, San Lorenzo Title and Improvement Company v. Caples, p. 81). 91 Compa:iiia Agricola v. Alderete, cited in n. 17, Plaintiff's Abstract of Title. ""Ibid., Exhibits Dl, D2, D3. 93Banco No. 305, Compa:iiia Agricola, Minute No. 121, March 3, 1930, Bancos, Fourth Series, pp. 31-35. Boundary Commission, United States and Mexico the disposition by the Commission conclusively settled the sovereignty of the land prior to transfer, but the court overruled this view and ad­mitted testimony in contradiction of the findings made by the Commis­sion.94 The court sent the case to the jury with instructions to find for the defendant parties, that is, for those claiming under Texas sover­eignty.95 The court, then, adopted by inference the attitude that the Commis­sion's act was of no weight in determining sovereignty; that regardless of its disposition, the land had been under Texas sovereignty both before the announced transfer of jurisdiction and before the cutoff. This would lead to only one conclusion as to what the court must have considered the Commission's function to be-though the court did not deal with this point directly: The court must have credited the Commission solely with the power to dissipate clouds surrounding a questionable boundary. While the Willis case has thus been confined to a banco already segre­gated when the banco elimination treaty was signed and thereafter acted upon by the Commission, the opinion expressed in it was extended in the Compafifa Agricola case to include a banco both segregated and disposed of after the promulgation of the Treaty of 1905. The latter case is also noteworthy in that its conclusion diametrically opposes that of Villareal v. Marks. The theoretical and legal nature of the Commission's power in dis­posing of bancos has likewise been treated at length in the state courts, with a like inclination to hold the Commission's functions to be merely that of resolving an ambiguous boundary line. In San Lorenzo Title and Improvement Company v. Caples,96 Special Associate Justice Caldwell, speaking for the Court of Civil Appeals, Eighth Judicial District of Texas, did not take cognizance of the question as to whether cession would be within the constitutional powers of treaty-making. but confined the decision to the intent of the makers of the Treaty of 1905. Also, referring to the asserted constitutional obstacle in the way of Mexico's entering into the banco elimination treaty as first proposed, the court recalled that this point had been solved by a denial that cession was involved."' Yet the court had no success in avoiding a conclusion that territory passed from one sovereign to the other, whether called cession or not. Thus the court admitted that the Treaty of 1905 "utterly trans­ferred" jurisdiction in such areas and "expressly carries the dominion and jurisdiction of each to the nation to which it is apportioned."93 The court did not answer this question: What, if not cession, would be such •4Compafiia Agricola v. Alderete, cited in n. 17, Plaintiff's Motion to Strike Evi­dence, Court Order Overruling Plaintiff's Motion to Strike, Plaintiff's Motion for New Trial. 95Jbid., Order of Court. 9648 s.w. (2d) (1932) 331. 97Jbid., p. 334. 9BJbid., pp. 334-335, The University of Texas Publication a transfer of dominion, in contravention of that jurisdiction granted by the terms of a former treaty? Again the court stated :99 ... It follows that, under the present treaty prov1s1on, whenever the river has cut off l::y avulsion a portion of the land from one side or the other, the right of political dominion and sovereignty over that particular portion of the land so cut off is immediately by the terms of the treaty transferred to the country to which it has been added by the action of the natural forces of the river.... From that basis, the court argued that "actual dominion and sover­eignty" might not pass simultaneously with the "political dominion and sovereignty," but that it might continue with the country from which the area was cut off until the Boundary Commission should act or until its decision should be ratified one month thereafter. What the court apparently meant is that de jure jurisdiction becomes effectively trans­ferred by the treaty, though de facto jurisdiction continues with the country from which the area was cut off until the action of the Com­mission and ratification thereof; but in so reasoning, the court again conceived the Treaty of 1905 as effecting a patent transfer of jurisdiction; it did not square this with the theory that the treaty is not cessionary in effect. This same court, in San Lorenzo Title and Improvement Company v. City Mortgage Company,100 Special Associate Justice Gowan Jones writ­ing the opinion, avoided inconsistency by passing over the premises that the Treaty of 1905 is not cessionary. The court adopted the view that the treaty itself effected a definite transfer of territory, the acts of the Commission in dealing with bancos merely being declaratory of the con­vention provisions.101 Again, the court, speaking of the subject of litiga­tion, said that upon the signing of the convention, March 20, 1905, sover­eignty, dominion, and jurisdiction of the San Lorenzo Banco passed from the Republic of Mexico to the United States.102 Such expressions indicate, in effect, a view that in fact the treaty accomplished cession of territory. However, this same court, Chief Justice Will Pelphrey handing down the opinion, presented still another attitude, one that would attempt to make the theory of non-cession compatible with the declarations of the International Boundary Commission and of the political departments to the effect of transferring bancos from one jurisdiction to another. This opinion was expressed in the case of San Lorenzo Title and Improve­ment Company v. Clardy, the court stating :103 As we understand the Treaty of 1905, it was merely an agreement on the part of Mexico to withdraw any claim to all l::ancos on the north side of the river, containing 99/bid., p. 336. 1ou43 S.W.(2d) (1932) 311. 101/bid., pp. 313-314. 102/bid., p. 314. 1°348 S.W.(2) (1932) 328. Boundary Commission, United States and Mexico not to exceed 250 hectares and not having more than 200 souls, and a like agreement by the United States as to similar bancos on the south side. Thus the statements transferring jurisdiction would become merely declarations admitting uncontested jurisdiction as to banco areas. This idea would accord the Commission a function to perform and lend some authority to the declarations of transfer, and at the same time would be compatible with the theory of the treaty-negotiators that bancos consti­tute areas of questionable and disputed sovereignty and that the purpose of the convention was to define the boundary through such clouded areas. The logical deduction from this last thesis of the court would be that a declaration of transfer of a banco to one nation would amount to an erasure of the other nation's claim to it; in other words, an admission that the banco had always been under the sovereignty of the nation ostensibly receiving it under the award. Such is the conclusion of the court when it said that the San Lorenzo Banco "is therefore assumed to have always been in the United States...."104 In the case of Willis v. First Real Estate and Investment Company on appeal before the United ~tates Circuit Court of Appeals, Fifth Circuit, the court held explicitly to the attitude that the nature of banco elimination was not actually that of transfer of territory but rather a declaratory execution of the clarification of an erstwhile confused bound­ary.1os Here, then, the circuit court of appeals subscribed to the view ex­pressed in the cases before the state courts that the transfer of bancos constituted merely a declaration of the termination of doubt as to sover­eignty over a certain piece of land. Likewise, the circuit court of appeals echoed the thought of the lower courts that a declaration of the Com­mission transferring a banco constituted a sort of public formality, and had no effect in determining the erstwhile sovereignty of the land in question. It should be noted in passing that the court, while holding that the inability of the Commission to determine the character of pre­vious changes had necessitated the T'reaty of 1905 as a short cut to remov­ing clouds from the boundary, also ruled in the case before it that the district court was competent to determine from testimony the facts as to the earlier location of the river. In brief, the court held that a judge, lawyers, and witnesses in a court room could determine facts that a 10•/bid., p. 328. 10568 F. (2d) 671. The case is considered last here because it is~ so far, the most authoritative, coming from the highest court which has rendered judgment in a banco case; because it summarizes the views of the earlier decision; and because it is the most recent case. Shapleigh v. Mier, 299 U.S. 468, went to the United States Supreme Court, but the issue involved was the legality of a; Mexican decree of expropriation. The University of Texas Publication Commission functioning on a scientific basis under treaty-vested powers could not legally find. Indeed the whole proposition of the theory of cession as against that of the clarification of a disputed boundary might be regarded as academic and of little if any practical consequence; but in actual interpretation of the T'reaty of 1905, situations developed to bring the question into a status of some prominence. It was in the matter of private rights as guaranteed by the Treaty of 1905 that the question acquired a more than academic importance. CHAPTER SEVEN THE RELATION OF THE COMMISSION TO PRIVATE TITLES AND TO DOMESTIC COURTS 1. RELATION TO PRIVATE TITLES The relationship of the theory of non-cession, as opposed to cession, to the work of the International Boundary Commission has been traced, and it was indicated that legal problems in connection with the settle­ ment of private iand titles in banco areas have in application lifted this matter from the level of academic speculation to one of practical conse­ quence. Unlike the question of cession, the status of private titles received substantially uniform treatment in the draft treaties which preceded the signing of the T'reaty of 1905, a fact readily established by tracing the history of these statements. In its initial proposal for solving banco situations by elimination, the International Boundary Commission on January 15, 1895, after defining a banco, suggested that1 . . . In these cases the Commission be authorized to announce the transfer of juris­diction to the country in which it [the banco] is located, provision being made for the transfer of the evidence of titles to land from the local authority on the side from which it is transferred to the local authority on the side to which it is transferred.. . . Inferentially these words would seem to make the transfer of evidence of title a function embraced by the treaty. Again, in his project of February 29, 1896, Secretary of State Olney included this proviso :2 . .. Provided that the inhabitants of the land may retain their citizenship in the country to which they belong, if they so elect, and the owners of land retain title thereto.... The first proposal of Commissioner Anson Mills, offered on November 9, 1898, duplicated the above provision.3 The purpose of such terms was stated oy the Mexican Secretary of Foreign Relations on May 1, 1899, to be the protection of private titles, citizenship, and servitudes.4 Sub­sequently, on June 5, 1899, United States Commissioner Mills made another draft treaty, which dealt similarly with private land titles, though with greater elaboration." It will be recalled, however, that the proposals mentioned above were made at a time when the legal status of the proposed transfer of bancos 1Joint Journal, Jan. 15, 1895, Proceedings, I, 176, 178. 20lney to Romero, Feb. 29, 1896, Chamizal, U.S. App., II, 916, 920. aMilJs to Blanco, Nov. 9, 1898, ibid., pp. 999, 1006. 4Mariscal to McCreery, May 1, 1899, ibid., pp. 1015, 1018. 5/bid., pp. 1026-1027; Proceedings, II, 266-267. 116 The Unfrersity of Te.ms Publication was not clearly determined. It has been seen how Mexico demurred to the projected treaty on the ground of a constitutional prohibition of cession of territory, and how this matter was settled on the agreed basis, suggested by the United States Secretary of State, that banco elimina­tion should not be considered cessionary since the land involved consti­tuted areas of questionable and disputed sovereignty. The convention, as finally negotiated on this new basis, included the following article as to prirnte titles :6 Article IV The citizens of either of the two contracting countries who, by virtue of the stipu­ lations of this conYention, shall in future be located on the land of the other may iemain thereon or remove at any time to whatever place may suit them, and either keep the property which they possess in said territory or dispose of it. Those who prefer to remain on the eliminated bancos may either preserve the title and rights of citizenship of the country to which the said bancos formerly belonged, or acquire the nationality of the country to which they will belong in the future. Property of all kinds situated on the said bancos shall be inviolably respected, and its present owners, their heirs, and those who may subsequently acquire the property legally, shall enjoy as complete security with respect thereto as if it belonged to citizens of the country where it is situated. Thus while the treaty negotiators had abandoned the notion that elimi­ nation of bancos would constitute a cessionary act, and had adopted in lieu thereof the theory of questionable and disputed sovereignty, they left the proYision as to private titles substantially the same as in the proposed drafts, bancos apparently being conceived of in the pertinent article as belonging to one soYereign or the other previously to the treaty. Here seem to be the elements of an anomaly which was mani­ fested in questions arising over conflicting titles to lands in areas elimi­ nated as bancos. It has been the demonstrated Yiew of the Commission itself and of the political branch that actions by the Commission dealing with banco areas bear no direct relationship to the determination of private titles. The follo,>.ing correspondence between the commissioners of the respec­ tiYe countries in regard to an ambiguity appearing in one of the minutes of the Commission corroborates this so far as it is concerned. The pertinent part of this minute contains the statement that all private claims in the El Paso-Juarez Valley had been presented and settled.; The minute closes with a resolution whose preamble includes the terms, "The Commission, having eliminated the aforementioned nineteen bancos, and acted upon all other pending claims, as a result of its labors, declares ...." To clarify the meaning of this minute, the commissioner for the United States wrote to the commissioner for Mexico that this resolution might be misunderstood.' The commissioner for Mexico, in reply, stated s35 Stat. pt. 2, 1863, 1867; App. V. 7!\Iinute No. 133, March 21, 1931, Bancos, Fourth Series, p. 67. •Lawson to Serrano, May 18, 1931, ibid., p. 69. Boundary Commission, United States and Mexico succinctly the principle that private titles are outside of the Commis­sion's jurisdiction :9 The Spanish text of the Minute is perfectly clear ("se daban por presentadas y rt;sueltas todas las reclamacions de particulares")-"it was considered that all claims of private parties had been presented and settled"-and it cannot have any other interpretation than the former, as the Boundary Commission has never attempted to decide upon rights of private ownership of the bancos, the same being beyond its province. However, to say categorically that the Commission has not concerned itself with the merits of private titles would hardly be correct. For example, an incident occurred in 1911 in which the American commis­sioner, Anson Mills, interceded in a matter related to private titles in a banco area, the Weber Banco No. 301, at El Paso.10 It should be noted that the action was taken under the treaty-given power to suspend the construction of works in violation of the boundary treaties; nevertheless, the American commissioner acted apparently to protect the rights of a party claiming under Mexican title. The alleged invasion of rights and ejectment of claimants under Mexican title in bancos in the El Paso Valley occupied the Commission's attention on two occasions, in 1919 and in 1922.11 It was in an effort to settle these problems that the Com­mission undertook a topographic survey of the El Paso Valley. A question of the relationship of proceedings before the International Boundary Commission to the Texas statutes relating to adverse posses­sion came before the Commission in the course of its surveys of the bancos in the El Paso Valley. The following data from the records of the Commission bear witness to this.12 On October 2, 1924, the Mexican Section presented the case in order to avoid Mexican loss of title by prescriptive right due to five years undisputed possession under Texas law.13 The Mexican Embassy also notified the Department of State, which informed the Mexican Ambassador that the Texas authorities con­sidered the rights of the Compafiia Agrfrola protected by the notice of the Mexican Government. Here, then, is an instance where the Com­mission took action purposely to save the rights of a holder of private title. On October 17, 1931, Secretary of State Hughes wrote to the Gover­ nor of Texas, advising him that the Department of State had received DSerrano to Lawson, May 21, 1931, ibid., p. 70. ioMinute No. 65, Sept. 10, 1925, ibid., pp. 19, 21. 11Minute of Oct. 31, 1919; Minute No. 4, Oct. 16, 1922 (MS). In the former case the American commissioner agreed to ask that court proceedings be halted until the engineers could report on the bancos; in the latter case the Commission merely ordered a survey of the bancos in question. i2Minute No. 50, Oct. 2, 1924, Bancos, Fourth Series, pp. 18, 26. 13Revised Civil Statutes of the State of Texas Adopted by the Thirty-ninth Legis­ lature, Regular Session, Austin, 1925, II, 1554, Art. 5509. 118 The University of Texas Publication notice from the Washington representative of the Mexican administra­tion of a complaint filed before the Mexican Foreign Office by a Mexican citizen, Camilo Arguelles, president of the Ciudad Juarez Compafiia Agri­cola, who alleged that other persons had occupied land of that company which had been segregated to the American side by a shift of the river bed.14 The Secretary of State added that the Mexican representative had filed notice so as to comply with the prescriptions of the laws of Texas. The only response of the State of Texas was acknowledgment of the Secretary of State's letter by Walace Hawkins, then Assistant Attorney General of Texas.1 5 A further instance illustrative of at least a consideration by the Com­mission of questions involving private titles to land in a banco is revealed in the following quotation from the Commission's records :16 The examination of this information brought about some discussion between the Commissioners, and the Consulting Engineers were called upon to assist in the com­plete and exhaustive investigation of all available data. The Consulting Engineers made the following statement: "Claimants under Texas title base their contentions largely on the fact that the patents from the State of Texas cover the land in the four bancos. The river channel of 1862, to which these patents run, is very close in position to that which was surveyed by Emory in 1852. Since that time ( 1862) 17 the river has moved at the four ba.ncos by erosion from Texas and accretion to Mexico. Before the bancos were cut off that part of the land under Texas patents within the bancos had been eroded away and the limit of the Texas title claims was at the then running water. After the cutoffs the limit of Texas title claims was defined by the center of the abandoned channel. Thus the Commission would appear to be settling the validity of a private title claim, though whether its determination of the matter would be definitive in actual effect upon the claim involved is, as shall be seen, another matter. "Hughes to Governor of Texas, Oct. 17, 1921, Department of State Archives, ME 711.12151. Originals of the correspondence in the Department of State files were examined in the preparation of this study, but reliance is here placed on certified copies of this correspondence made available through the courtesy of Attorney W. H. Burges of El Paso and of former Assistant Attorney General R. W. Yarborough of Texas. 1 5Hawkins to Hughes, Nov. 21, 1921, ibid., Hawkins' letter has this closing sentence: "No further notice of acceptance is necessary." Possibly this misled the Secretary of State. The matter was discussed with Mr. Hawkins in Dallas, Texas, on Dec. 22, 1933; Mr. Hawkins expressed himself as clearly recalling that it was his intent merely to acknowledge receipt of the letter, and not to acknowledge sufficiency of the notice for purposes of complying with the statute. He went on to say that the Attorney General of Texas had no authority in the matter. 1 6Minute No. 120, Feb. 19, 1930 (MS). The tracts in question are in the Presidio Valley. 17The date 1862 is given to indicate the location of the river in that year and its subsequent change. Boundary Commi8sion, United States and Mexico The Department of State of the United States has voiced the view that claim of titles to properties within bancos are unaffected by the banco decisions of the Commission.18 With the executive branch holding to the view that matters of private titles under the Treaty of 1905 are beyond the province of the Commis­sion, questions concerning disputed titles, arising from different sources of sovereignty, in banco areas have been left to the domestic courts for determination. From the litigation of this nature that has come before the courts of the United States and of Texas, one may justifiably draw this conclusion: The courts have shown a disposition to settle such matters as if no special rights accrued through the effect of the rele­vant parts of the Treaty of 1905; in other words, the treaty has been regarded as signifying nothing so far as effecting a protection to the rights of claimants to title under the sovereign from whom a given banco was segregated and declared transferred by the Commission. First, however, an exception to that general statement may be cited. In the case of Villareal v. Marks,19 the United States District Court at Brownsville upheld claimants under a Mexican title to land which had been cut off from Mexico and whose jurisdiction had been declared passed to the United States, the cutoff and the declared transfer taking place some years after the Treaty of 1905 had gone into effect.20 In this case, however, all the defendants went out by disclaimers or default, so that no real contest over the issues was involved. In a case similar in issue to the above, that is, a case involving con­flicting claims to title to land in a banco both segregated to the United States and declared transferred by the International Boundary Com­mission after the promulgation of the Treaty of 1905, the United States District Court at El Paso reached a quite different conclusion. This was in the case of Compafiia Ag11icola de C. Juarez v. Alderete. It arose some three years after the case of Villareal v. Marks, and differed from the latter in that it involved a contest over issues. The plaintiff claimed title running from denouncements of municipal lands under the national IBPress Release, April 18, 1930. See also New York Times, April 19, 1930. On the basis of information received from interviews, it is suggested that this Press Release was intended in part as a response to private parties and their counsel who were making increasingly insistent representations to the Department in regard to the situation just coming to a head in the El Paso-Juarez Valley in consequence of the fact that the work of elimination had been delayed many years and was, in fact, not undertaken until 1930 although surveys had been ordered and made several years earlier. Minute No. 50, Oct. 2, 1924, and No. 65, Sept. 10, 1925, Bancos, Fourth Series, pp. 18-19. In the intervening years several of the alleged bancos on the Texas side had been occupied, thus causing a most unpleasant situation to develop. isLaw, No. 628, U.S. District Court, Southern District, Texas, final judgment filed at Brownsville, May 20, 1929. Manuscript copy of the judgment is relied on here. 20Minute No. 106, May 26, 1928, Bancos, Third Series, p. 67. The University of Texas Publication laws of Mexico and state law of Chihuahua.21 The defendants asserted their titles ran back to Mexico in origin, the chain beginning with a grant in 1825, but was set up under T'exas sovereignty as successor to MexicoY The case was sent to the jury with instructions to find for the defendants.23 The court had allowed in evidence collateral attacks upon the findings of the Commission/• and the instructed finding by the jury was in favor of such testimony as against the Commission. From that basis, a decision was reached that left Article IV of the Treaty of 1905 without significance in cases of contested title so far as extending pro­tection in domestic courts of the United States to claimants to title under Mexican sovereignty to lands in bancos eliminated tc the United States. This view has been carried further in cases in the state and federal courts arising out of conflicting claims to lands in the San Lorenzo Banco No. 302, an area just east of the city limits of El Paso. Transfer of dominion and jurisdiction over this tract to the United States was announced by the International Boundary Commission on March 21, 1930, the Commission finding that it had been segregated as a banco from Mexican territory by an avulsive change in July, 1898.25 On August 7, 1926, libel proceedings were commenced before the Civil Court of the District of Bravos, Chihuahua, in Juarez, against the San Lorenzo properties as vacant land. The theory behind this. action was that the land, though under de facto jurisdiction of the United States, was Mexi­can land de jure and was vacant land in that there was no occupant holding title emanating from Mexican sovereignty.26 The proceedings were consummated in a decree vesting title in Alfredo Urias, a Mexican citizen; an error in the decree was not corrected until October 25, 1930, before another Mexican judge.2• This correction, it will be noted, was made by a Mexican court after the transfer of dominion and jurisdic­tion to the United States had been announced by the Commission. This point was attacked many times subsequently in litigation over title to lands in the banco as a weak point in the case of claimants under Mexi­can title. Urias conveyed title resulting from the Mexican c:ourt's decree to the San Lorenzo Title and Improvement Company. 28 In Willis v. First Real Estate and Investment Company, it was sought to make a Mexican title from the origin above indicated prevail against 21compafiia Agricola de C. Juarez v. Alderete, law, No. 1460, U.S. District Court, Western District, Texas, final judgment filed at El Paso, May 5, 1932, Plaintiff's Amended Abstract of Title. 221bid., Exhibits Dl, D2, D3. 2 3/bid., Order of Court. 2•/bid., Plaintiff's Motion for New Trial, Plaintiff's Motion to Strike Evidence, Court Order Overruling Plaintiff's Motion to Strike. 25Minute No. 123, March 21, 1930, Bancos, Fourth Series, pp. 41-45. 2tiTranscript of Record, pp. 35ff. 2< /bid., pp. 18, 40. 25/bid., p. 58. Boundary Commission, United States and Mexico 121 titles emanating from Texas sovereignty. Claimants under Texas title traced a chain back to a grant from Governor Sam Houston of Texas in 1861.29 The judgment of the court30 favored the defendants, that is, those claiming under Texas titles. The court found that regardless of the statements in the Commission's announcement of transfer of domin­ion and jurisdiction, the land in controversy had been in the United States prior to the alleged cutoff of 1898; that the procedings in the Mexican court by which the plaintiff's title originated were therefore void for want of jurisdiction. One part of the judgment, dealing with the relation of the Commis­sion to private titles, is noteworthy ;31 That the International Boundary Commission, under and by virtue of the Treaty of 1905, is empowered with authority to make findings of fact, prescribing boundaries of bancos, that affect dominion over, control and sovereignty of land and territory embraced within such bancos, so found and prescribed by such International Boundary Commission; but that such International Boundary Commission is not vested with judicial powers, and that the proper courts of the country, or Nation, in which land i;mbraced in bancos so designated by such Boundary Commission shall be located, viz., the United States of America or Republic of Mexico, respectively, are the proper tribunals in which to determine questions of title to any land or lands embraced in such prescribed bancos. Substantially similar conclusions have been reached by the state courts of Texas in treating similar conflicts of title in the San Lorenzo banco.32 The situation on Farmer's Banco was distinctive for the reason that the United States Government itself was one of the claimants. The banco is occupied by the Cocopah Indian Reservation, and the United States Government has financed improve­ments there. The same land was claimed by a person who obtained title through the processes of Mexican law much as was done in the case of the San Lorenzo Banco in the El Paso Valley. The sum of $15,000 has been paid to Mexico in full settlement of the claim of the Mexican landholder against the United States, and $5,000 was paid to the administrator of the estate of an American claimant for his interest in Farmer's Banco. 50 Stat. 131. In San Lorenzo Title and Improvement Company v. City Mortgage Com­pany,33 the Court of Civil Appeals of Texas, Eighth Supreme Judicial District, held that no title vested in the claimants under Mexican title, since the transfer of the banco was effective with the promulgation of the Treaty of 1905, twenty-two years before the decree of the Mexican court vesting such title in Urias. Thus the court avoided collaterally negativing the findings of fact of the Commission. 29Jbid., pp. 224-226. 30Jbid., pp. 102-109. 3IJbid., p. 107. 32Differences as to private titles are not confined to the Rio Grande Valley. Farmer's Banco No. 501 and Fain Banco No. 502 have been the scene of rival claims by parties claiming under titles from different sovereigns; but the rivalry there has not developed to the same stage as on portions of the Rio Grande. 3348 S.W.(2d) (1932) 311, 314-315. The University of Texas Publication In San Lorenzo Title and Improvement Company v. Caples this same court developed a line of reasoning to the conclusion that the provisions in the Treaty of 1905 dealing with property rights in bancos should not be construed as a protection to those possessing under the alleged former sovereign.34 In San Lorenzo Title and Improvement Company v. Clardy, this court further emphasized its position that the idea of the treaty as guaran­teeing protection to those claiming title from the alleged former sov­ereign in eliminated bancos would be incompatible with the theory manifested in the correspondence leading up to the making of the treaty, that the nature of banco elimination was to be non-cessionary. The court examined the boundary treaties and the correspondence exchanged between the executive branches, and concluded that in con­struing contracts where two constructions are possible, the one making the act legal will be adopted, and the court, where possible, must "ascertain and give effect to the mutual intention of the parties." Con­sequently, said the court, the purpose of the treaty was "the readjust­ment of the boundary line, and was not intended to operate as a cession of territory."35 The court then cited the case of Coffee v. Groover.36 It involved con­flicting claims to land under grant from Georgia and Florida respec­tively. Three lines had been alleged as the boundary lines, the two states finally agreeing to the northernmost of the three. The land in contro­versy lay between the middle and the southernmost lines. The Supreme Court upheld the claimant under a grant from Florida. After referring to the opinion in this case the Texas court stated that under the facts presented "no rights arising by virtue of a grant from Mexico could arise, unless they were expressly reserved by the Treaty of 1905."~• The court continued by reasoning that in any event the provisions might not apply to a grant by Mexico after the treaty became law, since, even if the convention accomplished cession, the transfer must become effective with the treaty, and that therefore Mexico would be without sovereign power in such matters as conveying lands in such bancos as had been segregated to the north side of the river after the promulgation of the pact.35 The court's reasoning in this case, however, is of interest chiefly because it traces step by step the basis upon which the courts have con­strued the provisions of the T'reaty of 1905 dealing with private titles so as to give them the effect of rendering nugatory the purpose which the framers had in mind, that is, the purpose as demonstrated in Sec­retary Mariscal's insistence that the convention must establish rules 3448 S.W.(2d) (1932) 329, 335, affirmed 124 Texas 33-34, 73 S.W.(2d) 516. 3<•48 S.W.(2d) (1932) 325. 36123 u.s. (1887) 1. 3; 48 s.w. ( 2d) 325-326. 38Jbid., p. 327. Boundary Commission, United States and Mexico 123 relative to citizenship, property, and servitudes on the bancos in ques­tion, in order that these rights might be protected regardless of change in sovereignty and jurisdiction. The holding of the United States Circuit Court of Appeals, Fifth Cir­cuit, affirming the decision of the United States District Court in the case of Willis v. First Real Estate and Investment Company,~9 simply followed the general lines indicated in the cases in the lower courts. Circuit Judge Hutcheson, writing the opinion, said, "We think the defendants are right in their . . . position that the findings of the commission had no binding effect upon private rights, and that it was for the District Court to determine on the evidence before it the facts as to the location of the land in controversy and adjudicate accord­ingly...." It was the same judge, it will be recalled, who, in the case of Villareal v. Marks, an earlier banco case, had ruled in favor of claimants under a Mexican title as against claimants under a Texas title, basing the ruling upon the strength of the Commission's declara­tion of transfer of the banco to the United States.4 0 A. L. Shapleigh, et al., v. Pascual Mier is of ef:pecial interest in that to date it is the only case concerning this question which has been passed upon by the United States Supreme Court. A tract of land of 337 acres in Texas, El Guayuco Banco, on the left bank of the Rio Grande was involved. In 1926 this area had been cut by avulsion from Chihuahua and in 1930 was declared by the International Boundary Commission to pass to the United States. Private ownership, however, remained the same. Slightly complicating this issue was the fact that in 1925 by a .decree of expropriation the land became the property of Chihuahua which, subsequently, sold it to the defendant. The plaintiffs then came into American courts and questioned the validity of the expropriation. In pressing their case, they maintained that the disputed area became a part of the American domain by a treaty of cession, the avulsion merely bringing the convention into operation. Hence Ameri­can courts, in reviewing the Mexican decree, would be adjudicating a title claim to United States territory. The Supreme Court, without com­mitting itself upon some points raised, held that an expropriation of land which was still a part of Mexico, if legal and effective under the laws and constitution of that nation when made, is recognized as law­ful under the laws of the United States, if questioned in a judicial pro­ceeding.•1 It will be noted that the Supreme Court did not declare that the disputed tract had been under American sovereignty since the avul­sion. By refusing to question the expropriation, did it not in effect hold 8968 F.(2d) 671; certiorari denied, 292 U.S. 626, 54 S.Ct. 631, 78 L.Ed. 1481; re­hearing denied, 292 U.S 604, 54 S.Ct. 713, 78 L.Ed. 1467. •osee above, n. 19. 41299 U.S. 468-476. Minute No. 121, March 3, 1930, Bancos, Fourth Series, pp. 31, 32, 33. The Unfrersity of Te.'l:a.~ Publication that the area was not under the dominion of the United States until transfer?•~ In recapitulation, it might be said that the interpretation of the exec­utive has thrown the matter of private titles into the domestic courts rather than into "the exclusive jurisdiction" that the International Boundary Commission was to have in "all differences or questions" along the river boundary. The courts have found an incompatibility between, on the one hand, the expressed agreement of the treaty-negotiators that the treaty must be non-eessionary and in the nature of a settling of a questionable boundary, and, on the other hand, the idea that claimants under the former sovereign must have their titles to land respected in bancos eliminated to the other sovereign. This last theory, the courts have found, necessarily means cession, and consequently is precluded by the expressions of those who made the treaty. Thus the courts have rendered nugatory, so far as the enforcement of the apparent purposes of the treaty negotiators is concerned, the provisions of the Treaty of 1905 dealing with private titles; and the basis for this judicial view has been an apparent anomaly between the theory and the intent of those who made the treaty. As has been seen, it was at the insistence of the Mexican Govern­ment, through Secretary Mariscal, that the final negotiation of the Treaty of 1905 was accomplished on the basis of an understanding that the treaty provided for the settlement of a questionable and disputed boundary rather than for cession. Through the irony of circumstances, this same interpretation as demanded by the Mexican Government has come to be the basis upon which the interests of Mexican citizens have been defeated in the courts of the United States. 2. RELATION TO DOMESTIC COURTS An essential point in the matter of the juridic powers of the Inter­national Boundary Commission, a matter having both int~rnational and national importance, is the relationship of the Commission to domestic courts. Under the treaties which are the sources of its power, the Commis­sion is giYen authority to deal with various problems along the river boundary. Is the Commission itself to be the body to make findings and enforce them, or is it to make findings and leave it to the national courts to put them into effect insofar as they relate to private parties? The Commission having made a finding, does its determination bind the courts? Or may the courts be guided by conclusions as determined by themselves in dealing with litigants in cases related to the jurisdiction of the International Boundary Commission? Such are the questions that have arisen in the practical application of the treaties through the operations of the Commission and of the courts. •2See above, pp. 111-113, for the position taken by certain Texas judges. Boundary Commission, United States and Mexico They have, in part, been discussed in previous chapters, but it may be of value to present here a unified treatment of them. An early illustration of such queries and their solution came in the so-called Horc6n Ranch case. In it the Commission was presented with the problems arising out of an artificial change in the course of the river made by a company known as the American Rio Grande Land and Irri­gation Company in the Lower Rio Grande Valley. After finding the com­pany at fault through violation of the third article of the Treaty of November 12, 1884, the Commission went on to say that although it felt an indemnity should be paid to Mexico for this injury, the commission­ers were not sure in their own minds as to their authority in such a novel case. Consequently, they appealed to their governments for instruc­tions on further procedure.43 As noted above,44 the Solicitor of the Depart­ment of State pointed out that the decisions of the International Bound­ary Commission depended upon the judiciary to protect rights secured by treaty. The Attorney General of the United States also advised enforcement of the Commission's decision by appeal to the courts.4 ' The remainder of the Attorney General's opinion deals with other legal aspects of the matter : a differentiation between the liability of the United States for diversions from the river above the point where it becomes the boundary and below; the redress for private tort in the case as distinguished from public tort, that is, the compensation to be accorded the injured citizens as distinguished from the amends to be accorded the Mexican sovereign; the appropriate means for the United States to use in obtaining mandatory relief by compelling a restoration of the status quo ante.46 The views of the executive here are pertinent for the high place accorded a finding of the Commission as related to the trial of causes before an ordinary court, a status having as binding an effect in guid­ing a court as would accrue to another judgment. Also the executive here held that the finding of the Commission might be the basis upon which relief could be sought before the courts, though the Commission itself was without the authority to decide upon details of relief due private parties. The case was decided in a United States Circuit Court upon the basis indicated by the Solicitor General and the Attorney General. A bill filed by the United States charged that the company had acted in violation of Article III of the Treaty of November 12, 1884, and Article V of the Treaty of 1889, and alleged that the wrongful and unlawful diversion and change of the Rio Grande "constitutes an act in contempt and in • BJoint Journal, Oct. 24, 1906, Proceedings, Horc6n Case, pp. 20, 21. HCh. IV, n. 18. 4°Proceedings, Horc6n Case, pp. 29-34. Ops. Atty. Gen., XXVI, 250, 251. • 6Proceedings, Horc6n Case, pp. 34-36; Ops. Atty. Gen., XXVI, 252-254. The University of Texas Publication violation of the sovereign authority and power of the two said Gov·· ernments and distinctly violative of their treaties and statutes. . . . "41 The government was upheld in the case when the defendant company confessed judgment. The case is chiefly of concern here because it presents the earliest clear test of the definitive authority of the Com­mission. If one were to decide upon the basis of this one case, he would be led to the view that the Commission is indisputably empowered to determine facts within its jurisdiction, and that its determinations thereof might not be impeached by the courts; secondly, that the courts are the proper channels through which the Commission's findings might be converted to an assertion of private rights. Under the theory of the Horc6n Cutoff litigation, and the pertinent views of the executive, the Commission would have the power to determine questions in its sphere both exclusively and conclusively, and its authority to do so would be unassailable; it would remain only for the courts to function to give effect to its determinations. Litigation arising out of the Commission's function in banco elimina­tion, however, has done much to reveal a different attitude on the part of the courts. The case of Willis v. First Real Estate and Investment Company may be taken as a distinctive example. In the judgment handed down in that case by the United States District Court, Western District of Texas, the court found that the Commission possessed authority to make findings of fact but "is not vested with judicial powers" and the courts "are the proper tribunals in which to determine questions of title to any land or lands embraced in such prescribed banco."48 The court, moreover, restated the principle that private rights pertinent to a mat­ter coming within the jurisdictional sphere of the Commission must go to the courts for adjudication. Apparently, however, the court regarded the Commission's determination of matters to have some other status than that of a judgment upon which suit might be based. This was illustrated when the court admitted collateral testimony in an effort by the defense to impeach the Commission's discovery of facts.•9 That the court accepted this testimony in contradistinction to the facts averred by the Commission is clearly evidenced in part of the judgment :00 ·"United States v. The American Rio Grande Land and Irrigation Co., equity, No. 41, U.S. Circuit Court, Southern District, Texas, final judgment filed at Brownsville, Dec. 5, 1911, Complainant's Original Bill, Proceedings, Horcfm Case, pp. 36, 38, 39. This case is covered also in A. J., VI, 478-485 (April, 1912) . 1sTranscript of Record, p. 107. 49/bid., pp. 206ff. Old residents testified as to their recollection of where the river ran prior to 1898, when the alleged avulsion that cut off the banco occurred. One man recalled the location of the river from having followed the hounds in the neighborhood "during the years of the 90's." It is noteworthy that most of this personal testimony had been heard by the Commission in its hearings to determine the status of the area in question, and that the Commission by its decision had reojected the conclusions of these witnesses. Minute No. 123, March 21, 1930, Bancos, Fourth Series, pp. 41-45. 00Transcript of Record, pp. 104-105. Boundary Commission, United States and M e:rico That the channel of the Rio Grande River [sic] has remained continuously in such position and location since prior to the Emory-Salazar Survey in 1852, south of the lot and land here in controversy, the tract designated as "San Lorenzo Banco No. 302," with the sole exception of a short period when by the flood of 1897 the river for a short time ran north of the land in controver'!y, but in 1898 returned to the old channel south of the lot and land here in controversy.. .. In so finding, the court came diametrically at odds with the Commis­sion's determinations. This court followed the same view in Compafiia Agricola de C. Juarez v. Alderete. In that case, plaintiffs referred to the treaties of 1889 and 1905 and to the pertinent decision of the International Boundary Com­mission51 as a foundation for recovering rights in a certain banco. It was contended that the proper construction of these treaties and the action of the Commission as fixed by their provh;ions constituted a deter­mination binding upon the parties involved and the court."2 The court rejected this view, however, and admitted testimony collaterally attack­ing the findings of the Commission, and instructed the jury to find for the defendant parties, thus accepting this testimony of witnesses who contradicted the facts as determined by the Commission."'1 In three cases that have come before the Texas Court of Civil Appeals, Eighth Supreme Judicial District, that body has developed modes of interpretation of acts of the Commission in the elimination of bancos, which, though not upholding the Commission strictly in accordance with the apparent meaning of the Commission's acts, nevertheless avoid impeaching the authoritative quality of those actions. In the San Lorenzo Title and Improvement Co. v. City Mortgage Co., for instance,54 the court insisted that the actual transfer was effected by the treaty itself and became effective in 1905; that the Commission, in investigating and announcing elimination of such bancos, determined the facts as pertinent to the treaty and made formal declaration of the application of the treaty; but that the effect of its acts would date back to the treaty, albeit the Commission's announcement might indicate the transfer as being concomitant. In San Lorenzo Title and Improvement Co. v. Clardy,5 " the court held the Commission to be merely a fact-finding body, and the result of its work not to be cessionary, but rather to be in the nature of a clearing up of a disputed boundary. Thus the Commission, though appearing to be announcing that one government or the other was relinquishing claim to erstwhile disputed territory, merely indicated its true sovereign. ·"Minute No. 121, March 3, 1930, Bancos, Fourth Series, pp. 31-33. s2compafiia Agricola de C. Juarez v. Alderete, cited above, n. 21, Plaintiff's Second Amended Petition. a3Jbid., Order of Court. 5•48 S.W.(2d) (1932) 310, 314. 5°48 s.w. (2d) (1932) 315, 325ff. The Unfrersity of Texa._ci Publication In San Lorenzo Title and Improvement Co. v. Caples,56 the court held to the view that the Commission merely acted in the capacity of declar­ing what had been accomplished by the Treaty of 1905, that the nature of the transfer was the dissipation of dispute over territory rather than cession, and that the Commission in announcing change of jurisdiction must mean to announce formally the passing of the vestiges of de facto jurisdiction only. In the case of Willis v. First Real Estate and Investment Company, on appeal from the trial court to the United States Circuit Court of Appeals, Fifth Circuit,''' little was added to the theories of the cases already discussed here, save for a point which has been considered above: the view of the court that the Treaty of 1905 resulted in part from the impossibility of the Commission's making definitive determina­tions as to earlier changes in the river ;05 yet, further, that the courts were competent to make such judgments some twenty-five years after the signing of that treaty. In summary, it might be said that the exigencies of cases growing out of banco elimination have taken the courts far from the original posi­tion, illustrated in the Horc6n case, that,5 at least in the view of the J executive department, the courts serYe only as a channel whereby the dictates of the Commission might be given effect as between private parties. Through this chapter and the preceding one the attempt has been made to indicate the elements of this divergence between the courts and the International Boundary Commission. In brief, they are: first, the ambiguities and contradictions as to the legal nature of the con­templated elimination of bancos that entered into the diplomatic nego­tiations leading up to the Treaty of 1905; second, the implicitly incon­sistent interpretation of the political departments as to the date of transfer, at first apparently holding transfer to be accomplished by the treaty and yet later holding, as in the correspondence of 1930, transfer to be accomplished one month after the Commission's act ; third, similar to the last point, the inconsistent view of the political departments, apparently holding in the earlier phases that the Commission's func­tion was purely ministerial, yet later holding the Commission to be the executory agency of banco elimination ; fourth, the expressed view of '•648 S.W.(2d) (1932) 329, 336ff. 0•Cited above, n. 39. 5'The wording of the opinion on this point is as follows: "We have examined the Treaties of 1884 and 1905, and the correspondence preceding and following the Treaty of 1905 in the light of the erratic action of the river so in making its changes as to make it difficult, if not impossible, for the boundary commission proceeding under article 4 of the Treaty of 1884 to say whether a true avulsion under article 2 or a mere erosion under article 1 had occurred, and in the light of the great difficulties inherent in the attempt of one country to exert sovereignty over land attached to the other across the boundary. '·9See above, pp. 59-62. Boundary Commission, United States and Mexico the political departments themselves that the Commission has to do only with public matters and that private matters are outside of its sphere; fifth, the ambiguity of the clause of the Treaty of 1905 which protects the rights in land of "present owners, their heirs, and those who may subsequently acquire the property legally." As to the last point, the courts in the San Lorenzo cases asked, in effect, who were the "present owners" of the land in question at the time of the signing of the treaty. Finding them not to be those who claimed under Mexican titles, the courts ruled against them. The ambi­guity entered the situation in the apparent assumption of the treaty negotiators that the "present owners" or their heirs would be those who claimed under the sovereign from whom the land would be transferred. This is illustrative of the conclusion which is submitted here: The courts in attempting to settle private matters on bancos have been presented with insufficiently clear treaty bases, and not always consistent execu­tive practice. An analysis of the general position of the courts concerning their relation to the Commission in banco cases would include these chief attitudes: First, the Commission deals only with public questions, and private ones still belong in the hands of the courts; second, the Com­mission's function is to settle for public purposes the location of the boundary under the Treaty of 1905, and ancillary findings of the loca­tion of the boundary earlier than that in nowise bind the courts; third, the statements of the executive departments of 1930, as to the date of banco transfer one month after the Commission's act, is either a mere agreement on the date for giving effect to a purely declaratory act, or is to be regarded only as the executive explanation of the treaty, and in nowise binds the courts in their own interpretation of the treaty. In criticizing the first of the above three views-an opinion which the Department of State has expressed along with the courts-it is sub­mitted that it contemplates, in ultimate application, a separation of public and private rights. If one could conceive of private rights exist­ing in a sphere distinct from public rights, of private rights existing independently of a proper sovereign, then one might better understand the view expressed here. In brief, the courts have so clearly distin­guished between jurisdictional and sovereign rights that they have iso­lated them from each other. The second point arrives at a question as to how binding upon the courts are determinations of facts by the Commission. It should be pointed out that the courts might in two ways oppose facts as deter­ mined by the Commission. First, they might attack a primary finding of fact; that is, go behind a final declaration of the Commission locat­ ing the boundary. To do this the American courts would have to take jurisdiction over land declared transferred to Mexico, or to deny juris­ diction over land transferred to the United States. This the courts have not done, but they have gone behind what may be termed prerequisite The University of Texas Publication findings of fact by the Commission. In the San Lorenzo cases, and analogously in Compafifa Agricola v. Alderete, the courts determined previous locations of the Rio Grande and the boundary independently of and in contradiction to earlier decisions by the Commission. Thus, in the San Lorenzo cases, the courts did not question the main determi­nation by the Commission of the final location of the boundary, but they did nullify the Commission's secondary declaration as to the location of the boundary in 1897. The Commission had found that the river had eroded into the San Lorenzo tract prior to 1897, the boundary follow­ing it; but the courts held that the change previous to the change of course in the river in 1898 had also been avulsive, and therefore had not disturbed the boundary. The essence of the question involves more than that of the conclusive effect of factual determinations by executive bodies operating in their proper spheres. Even were it a matter of the binding effect of such executive determinations, the definiteness of the Commission's decisions might well be upheld as conclusive upon the courts.60 The problem, how­ever, touches something more fundamental than the conclusiveness of a commission operating merely under some statute-or treaty-given author­ity, for the power in point here is essentially political-one that inheres in the political departments independently of formal authorization in some document. Here the case of Foster v. Neilson6 1 seems pertinent. In it the United States Supreme Court was faced with a question of private rights poised on a query of the sovereignty over West Florida in the interim between cession of the territory to France by the Spanish sovereign and ratifi­cation of that cession and likewise before a further cession of the ter­ritory by France to the United States. Without examining here all the intricacies of the case, suffice it to say that the court, Chief Justice Marshall writing the opinion, held the judicial branch to be bound, in soRegarding the conclusiveness upon the courts of administrative determinations, see T. R. Powell, "Conclusiveness of Administrative Determinations in the Federal Government," American Political Science R eview, I, 583~07 (Aug., 1907); W. W. Willoughby, The Constitutional Law of the United States (2d ed.), III, 1660-1680. s12 Peters (1829) 253. See also Garcia v. Lee (1838), 12 Peters 511. Another pertinent case is United States v. Yorba ( 1863), 1 Wall. 412, in which the United States Supreme Court held, in a question involving private land titles and contingent upon a question of American or Mexican dominion in California at a given time, that the judiciary must follow the action of the political department in the designation of the day upon which the conquest of California was completed. See also United States v. Pico (1859), 23 How. 321. The point of the conclusiveness upon the courts of political determinations in territorial questions is discussed in C. Pergler, Judicial Interpretation of International Law in the United States, pp. 42-43; C. K. B'urdick, The Law of the American Consti­tution: Its Origin and Development, pp. 128-129; Willoughby, I, 578-579; III, 1329­ 1331; J.M. Mathews, The Conduct of American Foreign Relations, p. 190; C. H. Butler, Treaty Making Power of the United States, II, 360-367. Boundary Commission, United States and Mexico this instance, by the determinations of the political branch of the gov­ernment.62 The court, then at least, did not attempt to solve private rights as if they had nothing to do with public rights. Further, the court went on to hold that its judgment was bound by declarations of the legislative branch in the case before it. In contradistinction, in the banco cases in the El Paso Valley, the courts have denied the dependency of private questions upon public ones, and have ignored or overridden determina­tions by the International Boundary Commission, an agency of the Department of State, concerning the location of the boundary in an earlier year. In so doing the courts have turned to the treaty-given powers of the Commission and interpreted them ; but, independently of the treaty, should not a retrospective location of the boundary made by the Commission and ratified by the Department of State, be binding upon the courts under the doctrine of Foster v. Neilson? The question is submitted here without answer to indicate the debatable nature of the theory upon which the courts have acted in the banco cases. At this juncture criticism of the second merges into criticism of the third point, namely, as to the weight to be given to the executive inter­pretation of its powers under the treaty; for the matter would seem to involve more than a mere divergence of executive and judicial views as to the meaning of a legal basis. T'he essence of the problem in question is that of the political; the matter of determination of the meaning of the treaty would seem to be so linked with the political power to resolve the location of the boundary as to leave it in the hands of the execu­tive, according to the doctrine of Foster v. Neilson. To hold otherwise would seem to lead to this conclusion: The independence of the power of the political branch to determine the boundary is impaired once that power, in a specific instance, operates under a treaty; in the absence of a treaty, the power of the political branch remains free of the courts, but under a treaty such as that of 1905, the aforesaid power of the political branch tends, in some respects, to become conditioned by judi­cial interpretation. Following out this view, the conclusion would be reached that the Treaty of 1905 acts to impair the power of the political branch to make political determinations. This, it is submitted, demon­strates the theoretical untenability of the judicial view and indicates the need of a more satisfactory treaty basis for the powers of the Commission. s22 Peters 253, 306-307. CHAPTER EIGHT THE CASE OF EL CHAMIZAL 1. HISTORY Notable among the problems which have come before the Interna­tional Boundary Commission is the controversy over the location of the boundary around a stretch of border-land in the southern portion of El Paso, Texas. The case of the United States as it was presented before the Commission in the Chamizal arbitration described the area as fol­lows :1 . .. the Chamizal tract is an area of about 600 acres between the present channel of the Rio Grande on the south and the obliterated channel of 1852-1853 on the north, which is and during the course of its gradual formation always has been a part of the vigorous and growing town of El Paso, Texas. The United States and the State of Texas have always exercised jurisdiction over the tract upon which about 6,000 of the 40,000 residents of El Paso make their homes, a part of the territory in dispute being perhaps the most thickly populated portion of the City of El Paso, while all of it is surveyed and divided into city lots.. This dispute is distinctive not solely because of the complexity of the issues involved but also because virtually forty-six years, during which two major efforts to reach a settlement have been made, have failed to bring about an adjustment. An historical consideration of the difficulty and the attempts to solve it is appropriate as an introduction to an examination of the nature of the legal and practical questions in con­nection with it. The matter of the Chamizal was first presented to the International Boundary Commission on NoYember 4, 1895, by the Mexican commis­sioner as Case No. 4. Mexico was the plaintiff on behalf of Pedro Ignacio Garcia, who claimed that El Chamizal came into his possession in 1866, following the death of his grandfather, who had acquired it in 1827. The petition alleged that the land had been on the south side of the river until 1873, when "in consequence of the abrupt and sudden change of the current of the aforesaid Rio BraYo, that land in question was by that fact left on the other side of said river, or on the side of what is called today El Paso, Texas."~ This plea and supporting documents were sent to the Mexican boundary commissioner in order that the problem might be settled under Articles I and IV of the Treaty of 1889, which provide that the commissioners personally investigate and reach a deci­sion concerning reputed changes." Garcia admitted that he was not cer­ 1 Chamizal, r..:.s. Case, p. 4. According to Gladys Gregory, "El Chamizal": A Bound­ ary Problem Between the United States and Mexico (Ph. D. thesis), p. 61, the present estimated population of El Chamizal is 25,000. ~Joint Journal, Nov. 4, 1895, Proceedings, I, 44. "Proceedings, I, 43-44. Also, Chmnizal, U.S. Ca8e1 pp. 13-14. Boundary Commission, United States and Mexico tain in his own mind as to which government should be recognized as having jurisdiction and entitled to collect taxes. Also, he pointedly stated that he had "not dared to occupy my aforesaid land, fearful, as I was ... that some personal injury might befall me from the part of a few North Americans, who supposing this land to belong to the United States of North America, pretended to come into possession of the same...." Tbus the question to be answered by the Commission was: Had Garcia's land been transferred in 1873 from Mexico to the United States by an avulsive or by an accretive change? To reach a decision on this point and determine title to the land, the commissioners would be guided by the rules set forth in Articles I and II of the Treaty of 1884, which provide that the boundary line follows the river if the change be caused by accretion and erosion, but remains in the deserted channel if the change be by avulsion. The American commissioner understood this was the question before the Commission and further believed that the rules of the Treaty of 1884 would govern the case.4 The testimony of eight witnesses, all old residents, was taken upon the change. In addition documents of a scientific and technical charac­ter were submitted by both sides. The Mexican commissioner then sug­gested that the engineers furnish the Commission with a written tech­nical report and, if necessary, a map indicating the scientific bases for a decision as to the nature of the river change. The testimony and the engineer's report revealed that the arc formed by the river as it turned from its southward course to the east between El Paso and Juarez had been deepened, slowly before 1864, and thereafter by perceptible, even violent, erosion of the south bank during flood stages.5 That the commissioners would be able to agree on the facts but would be unable to concur in conclusions applying law to these facts became apparent as the Commission's consideration of the case drew to a close.6 The Mexican commissioner reasoned that the changes in the river course did not alter the boundary line. He pointed to the provisions in the first article of the Treaty of 1884, declaring, in view of the placing of the boundary in the center of the main channel of the Colorado and the Rio Grande in the earlier boundary treaties, that the boundary should remain there, "provided that such alterations be effected by natural causes through slow and gradual erosion and deposit of alluvium and not by abandonment of an existing river bed and the opening of a new one." His review of the evidence and his position were summarized with the following syllogism :7 4Joint Journal, Nov. 6, 1895, Proceedings, I, 45. sJoint Journal, April 14, 1896, ibid., pp. 50-51, and Mexican Engineer's Report, May 26, 1896, ibid., pp. 72-79. See App. XI. sJoint Journal, July 10, 1896, ibid., pp. 79-80. 1Joint Journal, July 13, 1896, ibid., p. 81. 134 The University of Texas Publication Major: Any change other than slow and gradual does not alter the boundary line. Minor: As a fact, the change in the case denominated "El Chamizal" was not slow and gradual, but on the contrary violent and at periods of time of unequal intermis­sion. Conclusion: Hence the change in the river on lands of "El Chamizal" does not alter the boundary line marked in 1852. The American commissioner emphatically denied the validity of the major proposition of the Mexican commissioner and pointed to the evi­dence given by all the witnesses except one. Commissioner Mills insisted that if the changes at El Chamizal were not accretion and erosion within the meaning of the terms of the Treaty of 1884, none would be found in the 800 miles of the alluvial portion of the stream, and there­fore the treaty provisions would be dead letters. Such a decision would call for marking the old river bed and changing the ownership of land of those who believed that the changes during the preceding forty' years had been alluvial. In addition, he stated that the river in its alluvial stretch did not anywhere have the same location it had in 1852. Con­sequently, the American commissioner announced his conviction that the change had been produced by natural causes of erosion and accretion according to Article I of the Treaty of 1884. Furthermore, he argued that the phenomenon need not be uniform and constant in ratio of time but might be intermittent and perceptible. Hence the boundary line had moved with the river. In view of the divergent views of the two commissioners they decided on July 17, 1896, each to report the proceedings to his government. Later, the Mexican commissioner asked to reopen the case; the refusal of the American commissioner to do so was approved by the State Department.8 In 1897 the two commissioners recommended to their governments, in accordance with the twenty-first article of the Treaty of Guadalupe Hidalgo, that the Commission be enlarged by the addition of a third commissioner, a citizen neither of the United States nor of Mexico, to arbitrate the Chamizal case.9 This proposal was shortly presented to the Mexican Government by the American Minister at Mexico City.10 Foreign Secretary Mariscal rejected the plan, holding that the Interna­tional Boundary Commission was established "only to emit its opinion, which necessitates the ultimate approval, expressed or presumed, of the two High Contracting Parties . . ."; instead, he advised that the mat­ter be submitted to the arbitration of the chief of a third sovereign schamizal, U.S. Case, pp. 17-19. See also Proceedings, I, 86ff. On Aug. 15, 1896, W. W. Rockhill, Acting Secretary of State, indicated to Commissioner Mills that if an agreement could be reached, the case might be reopened; otherwise not. Chamizal, U.S. App., I, 341. 9Joint Journal, Dec. 4, 1897, Proceedings, I, 94-95; Chamizal, U.S. Case, p. 19. iocJayton to Mariscal, Dec. 30, 1897, Cha,mizal, U.S. App., I, 351. Boundary Commission, United States and Mexico state.11 Mexico's suggestion met with a cool reception by the United States,_ which maintained that the question was one of the application of the ordinary rules dealing with changes in a fluctuating boundary and not one "involving the element of friendly compromise which is so often apparent in the settlement of international disputes by a neutral arbitrator...." Secretary of State John Sherman proposed naming a Mexican or American jurist as a temporary member of the Commis­sion.12 T'o this idea Mexico demurred, maintaining that the matter was too important to leave to the determination of a private citizen.'" The Department of State referred the Mexican note to General Mills, the American commissioner, who explained that the problem was almost entirely technical and the arbiter would practically have to be on the ground to render an intelligent decision. Mills further pointed out that the only query to be answered was, "whether the river in its movement over some 600 acres of land during the past 40 years, had been by gradual erosion and deposit or by avulsion." On April 21, 1898, Mills's letter was sent to Senor Mariscal. Since there was no answer, negotia­tions ceased for more than nine years.14 Attention was again directed to the case in 1907 when Senor Enrique Creel, Mexican Ambassador at Washington, suggested that a special arbitral body be constituted from the two commissioners of the Inter­national Boundary Commission and a jurist selected by the Government of Canada, the last to be empowered to render an award on all ques­tions upon which the other two commissioners could not agree.'" In the discussions that followed, the two governments lost sight of the proposal for a settlement of the controvery by the Commission specially enlarged for that purpose. Interest was centered instead on a plan advanced by Mexico for a new treaty as a basis for boundary refa­tions between the two republics, overtures in this direction having been made through the Mexican Embassy at Washington on May 21, 1908.16 For two years the governments discussed this projected treaty." Sec­retary of State Philander C. Knox eventually expressed unwillingness to participate, and suggested instead, as a basis for settling the Chamizal affair, a return to the Mexican proposition for an enlargement of the Commission by the addition of a Canadian member.18 Secretary Knox also proposed a basis for maintaining, pending settlement, the status quo in the Chamizal area, providing for the stay of proceedings to dis­possess persons able to show prima facie Mexican title to lands in that i1Mariscal to Clayton, Feb. 11, 1898, ibid., pp. 351-354. i2c1ayton to Mariscal, March 10, 1898, ibid., pp. 356-357. isMariscal to Clayton, March 16, 1898, ibid., pp. 357-364. HChamizal, U.S. Case, pp. 20-22. 15Creel to Root, July 19, 1907, No. 10, Cham.izal, U.S . App., I, 368-373. iaGodoy to Root, No. 203, May 21, 1908, ibid., pp. 375-380. i 7Discussions of the proposal are found in ibid., pp. 375-420. isKnox to de la Barra, No. 208, March 22, 1910, ibid., pp. 421-424. The University of Texas Publication area. The Mexican Ambassador on June 9, 1910, informed Secretary Knox that his government was unwilling to proceed with negotiation of a treaty for arbitration of the Chamizal matter along the lines which the Secretary had indicated.10 However, on June 17, 1910, Knox pre­sented the Mexican Ambassador with a draft convention,2° which was to become, without change, the treaty basis upon which the arbitration was founded,21 though in certain minor details this convention was sup­plemented a half-year later by a protocol fixing the dates for the prepa­ration of papers and the opening of the sessions of the Commission.22 Immediately after the signing of the arbitration treaty, the Depart­ment of State instituted the agreement to maintain the status quo in the Chamizal region. Secretary of State Knox designated Wilbur Keblinger, American commissioner on the Commission for the Study of the Equi­table Distribution of the Waters of the Rio Grande and the Colorado River, as agent of the Department in protecting the rights of persons claiming under prirna facie Mexican title in that tract.23 The first article of the Chamizal arbitration convention defined the area involved in the controversy. The second article provided for the temporary enlargement of the Commission by the addition of a third member, a Canadian jurist, to be named by agreement of the two gov­ernments, or, failing that, by the Government of Canada. The third article set the confines of the question as one solely of the international 1 9De la Barra to Knox, No. 366, June 9, 1910, ibid., pp, 431-433. 20Knox to de la Barra, No. 260, JunP. 17, 1910, ibid., pp. 434-438. 21convention of June 24, 1910, 36 Stat. pt. 2, 2481. For a resume of the circum­stances leading up to the arbitration treaty see also A. J., IV, 925-930 (Oct., 1910). 22protocol of Dec. 5, 1910, 36 Stat. pt. 2, 2487. 2sKnox to Keblinger, June 27, 1910, Chamizal, U.S. App., I, 439-440. In this con­ nection see A. J., IV, 928-92\i (Oct., 1910); Knox to de la Barra, No. 208, March 22, 1910, For. Rels., 1910, pp. 716-719; de la Barra to Knox, No. 366, June 9, 1910, ibid., p. 720; Knox to de la Barra,. No. 260, June 17, 1910, ibid., pp. 721-722. The status quo was subject also to subsequent diplomatic correspondence. Mexico sought to restrain the alleged ejectment of Mexicans from certain property in the tract and the erection on the property of an American manufacturing plant. This was after the completion of the arbitration. The United States demurred on the ground that the Mexicans were without prima facie Mexican titles. Mexico withdrew its objections. Ibid., 1913, pp. 957-963. The case of Cordova v. Grant (1919), 248 U.S. 413, touched upon the Chamizal status quo. In the United States District Court, Wesbern District, Texas, Grant had !'et up Texas title against Cordova in an action of trespass to try title. Cordova pleaded to the jurisdiction of the court, in view of the unsettled status of the tract. Grant demurred on the ground that Keblinger, the secretary of the American Section of the International Boundary Commission, had ruled the defendant to be without prima facie title. The District Court sustained the demurrer. It held that Keblinger's decision removed any requirement of comity to refrain from exercising jurisdiction. The court thus followed the trend of two cases, involving land in tha Chamizal tract, which had been decided before the arrangement of the status quo and the arbitration: Warder v. Loomis (1905), 197 U.S. 619; Warder v. Cotton and Grant (1907), 207 U.S. 582. Boundary Commission, United States and Mexico title to the Chamizal tract; and it also stated that the decision should be final and conclusive upon the two governments and that it might be made by a unanimous or by a majority vote of the Commission. Article IV allowed each of the two governments to be represented by an agent and such other counsel as might be deemed necessary; the fifth article outlined procedural matters and the requirements for the presentation of evidence; Article VI made provision for the paying of the expenses of the arbitration; Article VII prescribed the method of filling vacan­cies, either temporary or permanent, on the Commission ; Article VIII required that the award be executed within two years and that the status quo be maintained in the interim; and Article IX nullified all previous proposals of the question. The closing article described the details of ratification. The question may be asked as to whether the Commission for the Chamizal question was indeed the same body as that set up by the Treaty of 1889. True, the second article of the Chamizal arbitration treaty declares it to be the same : The difference as to the international title of the Chamizal tract shall be again referred to the International Boundary Commission, which shall be enlarged by the addition, for the purposes of the consideration and decision of the aforesaid differences only, of a third commissioner who shall preside over the deliberations of the Com­mission.... Yet in addition to its augmentation by a third member, a Canadian jurist, other basic alterations were made for the particular purposes of this arbitration. The third article of the arbitral pact gave to the deci­sion in this one case a finality and conclusiveness wholly at variance with the provision in the eighth article of the Treaty of 1889 that either government might defeat a decision by disapproval within one month.z.i Furthermore, the Chamizal arbitration treaty provided that each gov­ernment might be represented by an agent and other counsel-a sharp departure from the usual practice of having the governments repre­sented through their respective commissioners. In other words, the pow­ers and the functions of the Commission were basically different under the two treaties. It might be said that the Chamizal treaty created an arbitral tribunal which was to secure two of its three members from the already constituted International Boundary Commission; or, it might be said that the arbitration pact temporarily enlarged the personnel and authority of the International Boundary Commission. The distinction is, however, merely academic. The arbitral body began its sessions, as regulated by the arbitration convention and the supplementary protocol, on May 15, 1911, at El Paso, 24Noteworthy in this connection is the view of Secretary of Foreign Affairs Mariscal, expressed when it was first proposed to enlarge the Commission and make it an arbitral body for this case. He held the Commission to be without power so to function under the Treaty of 1889. Mariscal to Clayton, March 16, 1898, Chwmizal, U.S. App., I, 357-361. The University of Texa,s Publication the original cases having been prepared by February 15, 1911, and the countercases by April 15, 1911. In accordance with the provisions of Article II of the treaty, Eugene Lafleur, a former professor of inter­national law at McGill University, was selected to act as presiding com­missioner. United States Commissioner Anson Mills and Mexican Com­missioner Fernando Beltran y Puga were the other two members of the tribunal. The proceedings lasted until June 15, 1911, when the award was announced and the agent for the United States announced the bases upon which he protested against it.25 In the conduct of the case the two governments, through counsel, turned some attention to the position of the parties in the arbitration. On the part of the United States it was contended that Mexico, having been claimant when the case first came before the International Bound­ary Commission, retained that status and that therefore the onus of proof must fall upon it.26 Mexico opened its side of the case with words that would indicate it had not abandoned this role :2 ' Los Estados Unidos Mexicanos demandan al Gobierno de los Estados Unidos de America que reconozca como suyos, y por ende sujetos a la jurisdicci6n mexicana, Jos terrenos Jlamados El Chamizal, los cuales, situados antes en la margen derecha de! rio Grande 6 Bravo de! Norte, f!ueron segregados de ella y se hallan hoy en el !ado opuesto a consecuencia de varios cambios bruscos y repentinos que en algunos aiios sufri6 la corriente de dicho rio. On the other hand, Mexico insisted that the issues had outgrown the limits of the original claim; consequently, the question was more than one of proof or non-proof of the relation of the T'reaty of 1884 to a set of facts.28 The new factors included non-retroactivity of the Treaty of 1884, the fixed line theory, and prescription. The issues were reduced to the following six questions, which the arbitral body was called upon to decide :29 I. Was the boundary line established by the Treaties of 1848 and 1853 along the Rio Grande a fixed and invariable line? II. Has the United States of America acquired title to the Chamizal tract by prescription? Ill. Does the Treaty of 1884 apply to all changes in the river subsequent to the survey of 1852? 25Minutes of June 15, 1911, Chamizal, Award, pp. 56-57. The award is published also in For. Rels., 1911, pp. 572-598. 26Chamizal, U.S. Arg., p. 4; ibid., U.S. Case, pp. 13, 14; ibid., U.S. App., I, 212. 27Arbitraje del Chamizal, I, 13. The United States did not publish the proceedings; the manuscript copy in the Department of State was, however, examined. 28/bid., pp. 120ff. For a discussion of the implications in, the question of whether Mexico remained plaintiff in the new case, see W. C. Dennis, "The Necessity for an International Code of Arbitral Procedure," A. J., VII, 285, 294, n. 14 (April, 1913). Dennis was United States agent in the Chamizal arbitration. 29Minutes of June 10, 1911, Chamizal, Award, pp. 3-4. Boundary Commission, United States and M ea;ico IV. Was the whole of the Chamizal tract, as defined in the Convention of 1910, formed by slow and gradual erosion and deposit of alluvium within the meaning of Article I of the Convention of 1884? V. Was the formation of the Chamizal tract up to 1864 due to slow and gradual erosion and deposit of alluvium within the meaning of the Treaty of 1884? VI. Was the whole erosion which occurred in 1864 and after that date slow and gradual within the meaning of the Treaty of 1884? Thus Mexico might win in toto by an affirmative answer to the first question and a negative reply to the third; an affirmative answer to the third would render superfluous any response to the first question. An affirmative answer to the second question would of course defeat Mex­ico's case. A reply to the fourth question would be made unnecessary by a negative answer to the third question or an affirmative response to the first. The fifth and sixth questions constituted a way by which the determination of the sovereignty of the tract might be compromised between the two nations. The three members of the arbitral commission found it impossible to be unanimous on any question but the second, upon which all three agreed that the United States had not acquired title to the Chamizal area by prescription.30 On the first question, dealing with the fixed line theory, Presiding Commissioner Lafleur and United States Commis­sioner Mills voted no ; the Mexican commissioner voted yes. On the third question, involving the retroactivity of the Treaty of 1884, the presiding commissioner and the United States commissioner voted yes; the Mexican commissioner voted no. On the fourth question, as to whether the whole of the tract was formed by slow and gradual erosion, the presiding commissioner and the Mexican commissioner voted no; the United States commissioner voted yes. On the fifth question, as to whether the formation of the tract prior to 1864 was by slow and gradual erosion, the presiding commissioner and the Mexican com­missioner voted yes; the United States commissioner refused to vote. On the sixth question, as to whether the changes in 1864 and thereafter constituted slow and gradual erosion, the presiding commissioner and the Mexican commissioner voted no as to changes from 1864 to 1868, and held that subsequent changes, on which data were lacking, were immaterial, since under their theory, the river would have ceased to be the international boundary; the United States commissioner again declined to vote. Commissioner Mills gave the following as his reasons for withhold­ ing his vote on the fifth question: First, the arbitration treaty gave authority only to decide the sovereignty of the whole tract, not to divide it; second, the boundary treaties recognized only two classes of changes, avulsion and erosion, and established no basis for a third class of change, violent erosion as distinguished from "slow and gradual erosion." On the sixth question, Commissioner Mills refused to vote, maintaining the 30Jbid. The Unii·ersity of Texas Publication line of the river in 1864 to be indeterminable and an award on that basis to be impossible of accomplishment. A recapitulation shows that the three commissioners voted together once; the Mexican and the presiding commissioner voted together three times as a majority of two; and the United States and the presiding commissioner voted together twice as a majority of two. On the basis of the votes, an award was announced, whereby that portion of the tract to the right or south of the line of the river as it ran prior to the change of 1864 was awarded to Mexico; but foe course of the river in 1864 was not determined.:=• Commissioner Mills on behalf of the United States filed a dissenting opinion ;3" Commissioner Puga on behalf of Mexico filed a separate statement dealing with such points as had been decided adversely to the Mexican view of the case.~3 On the closing day of the arbitration, the agent for the United States announced the four bases upon which the award would be protested. He said it departed from the terms of the comproniis; the award was uncertain and indefinite and hence impossible to apply; the award neg­lected to give the reasons upon which it was based; and, finally, there existed "essential error of law and fact."" On August 24, 1911, the United States Government formally announced rejection of the arbitral award.35 Thus failed an elaborate attempt to settle the controversy over the sovereignty of the Chamizal tract. With the advent of new issues in the conduct of boundary relations between the United States and Mexico, and with an ever-increasing population and property valuation in the area, the Chamizal case remained, sixteen years after its inception, a more complex and difficult problem than at the beginning, and it is still a major question. Arbitral means having failed, diplomacy must adjust it if and when it is settled. It is apparent that this would have been the better method in the first place. For indeed the very failure of the arbitration is a patent indication that the nature of the Chamizal mat­ter was not of a sort to lend itself to settlement by that method. The non-arbitral nature of El Chamizal was touched upon obliquely by William Cullen Dennis, agent for the United States, during the conduct of the case.36 As he pointed out, the parties had an unequal stake in the ques­tion and furthermore, to find for Mexico would mean the creation of many problems rather than the solution of one. It was perhaps fortunate for the United States that in the final award was opened a way by which 3•Chamizal, A ward, pp. 35-36. 32/bid., pp. 36-19. 33/bid., pp. 49-55. a.Minutes of June 15, 1911, ibid., pp. 56-57. 35Department of State to Mexican Embassy, Aug. 24, 1911, For. Rels., 1911, pp. 598--600. For the Mexican Government's rejoinder, see correspondence, Mexican Embassy to Department of State, No. 345, Sept. 12, 1911, ibid., p. 603. " 6Chamizal, T.:.S. Case, pp. 41-42. Boundary Commission, United States and Me:dco the United States might escape the consequences of error. in judgment, if it may be so called, that allowed the matter to go to arbitration in the first place. On several occasions the United States has recorded its objections to awards which extended beyond the limits of the compr01nfa. An essen­tially relevant precedent was in the failure M the United States and England to execute the award of the King of the Netherlands in the Northeastern Boundary Arbitration instituted under the Treaty of Sep­tember 29, 1827.3 ' The award was given out neither along the lines insisted upon by England nor upon the limits requested by the United States, and when it was announced, the agent of the United States protested it as a departure from the powers delegated to the arbitral authority by the high contracting parties. Great Britain acquiesced in the refusal to accept, and the problem was settled by diplomacy.'" 2. ARGUMENTS PRESENTED IN THE CHAMIZAL ARBITRATION The Chamizal arbitration is of outstanding interest not solely because of the importance of the particular territory involved but rather because of its clear development of important theories relating to the nature of the boundary between the United States and Mexico. The latter relied, in its efforts to win the case, upon three bases: first, that the Treaty of 1884, which recognized boundary changes by accretion, did not apply retroactively; second, that the river boundary established by the early boundary treaties was a fixed and invariable line; and third, that in any event the boundary, by the terms of the Treaty of 1884 could be altered not merely by erosion but only by "slow and gradual erosion." a. Non-Retroacti'l'ity of the Treaty of 1884. Briefly discussing each of these theories, we examine first the ques­tion of whether or not the Treaty of 1884 was intended to be applied retroactively. The Mexican commissioner contended that the provisions of this treaty were applicable only to river changes occurring after its signature. This argument was rapidly disposed of, for the presiding commissioner and the American commissioner decided that the treaty was retroactive concerning all changes in the river occurring since 1852.39 Article I of the Treaty of 1884 provides that the dividing line between the two countries shall follow the center of the normal channels of the Rio Grande and the Colorado River, notwithstanding any alterations in the banks or courses of the rivers, provided such changes be brought s11 Malloy 646. 3SMoore, VII, 58-80; H. Misc. Doc., 53 Cong., 2 sess., XXXIX (3267), No. 212, I, 137-138. For additional precedents, see Por. Rels., 1887, pp. 605-606; A. J., XVII, 362-399 (April, 1923). a9Chamizal, Award, p. 3. The University of Texas Publication about by natural causes through erosion and accretion and not by the cutting of a new bed. The preamble of this treaty states that its pur­pose is "to avoid difficulties which may arise through the changes of channel to which those rivers are subject through the operation of natural forces ...",and that the United States and Mexico "have resolved to conclude a convention which shall lay down rules for the determina­tion of such questions. . . ."4 ° From the preamble it appears that the two parties intended to apply the rules contained therein for the settle­ment of difficulties which might arise from river changes, regardless of whether the changes had occurred before or after the signing of the treaty. As the majority of the arbitral commission pointed out, while the treaty was to be applied to questions arising in the future, it nowhere restricts the scope of the convention to "future changes in the river."41 Furthermore, at the time of the signing of the treaty, practically all the great changes in the Rio Grande had occurred. Thus, if the Treaty of 1884 could apply only to future changes, its effect would be rendered in the main nugatory and inapplicable. Oppenheim points out that "It is to be taken for granted that the parties intend the stipulations of a treaty to have a certain effect, and not to be meaningless." Therefore, an interpretation is not admissible which would make a stipulation meaningless, or ineffective.42 Vattel says: It is not to be presumed that sensible persons, when drawing up a treaty or any other serious document, meant that nothing should come of their act. The interpreta­tion which would render the document null and void cannot be admitted. . . . The document muit be interpreted in s~tch a way as to produce its effect and not prove meaningless and void. . . . The motive of the law, or of the treaty, that is to say, the purpose which the parties had in mind, is one of the surest means of fixing its true sense, and careful attention should be paid to it. . . ,43 However, even if there had been any question as to the intention of the framers of the convention, an examination of the uniform and con­sistent manner of its application to changes of the past as well as of the future would dispel such doubt, quite aside from the statements made by the heads of the two states. Even before the International Boundary Commission was organized for work, the two governments agreed to refer certain problems to it. Glancing briefly at these cases submitted to the Boundary Commission, it is evident that the river changes in question, due both to erosion and to avulsion. had occurred in some instances many years before the signing of the Treaty of 1884. 4024 Stat. 1011, 1012. 41Chamizal, A ward, p. 23. 420ppenheim, p. 765. 43Vattel, Bk. II, 205, 207. Italics are as found in; Vattel. Boundary Commission, United States and Me:rfro The fact that they were sent to the Commission and that its decisions upon them were not disapproved by either of the governments appears to offer conclusive proof that the two nations intended the convention to apply to all questions arising from any changes in the river from the date of signing the treaty.H The four original banco cases were all presented to the International Boundary Commission for settlement. In 1894 these bancos were examined by the Commission and it was found that in the case of Banco de Camargo the erosion dated back to 1865, the same being true of accretions beginning in 1853 to the Banco de Vela, Banco de Granjeno, and Banco de Santa MargaritaY In fact, of the original fifty-eight bancos which were eliminated by Article I of the Treaty of 1905 thirty-six were formed prior to 1884.46 Another evidence that both nations con­sidered that the Treaty of 1884 was retroactive was the Treaty of 1905 which eliminated bancos from the effects of Articles I and II of the Treaty of 1884, especially, in view of the fact that the two govern­ments had before them complete data concerning the bancos, including the thirty-six formed prior to 1884. Even since the Treaty of 1905 was negotiated, the International Boundary Commission has taken jurisdic­tion of the case of a banco formed as early as 1860 and eliminated it from the provisions of the Treaty of 1884.4' Thus by these acts relat­ing to bancos both governments acquiesced in the retroactivity of the Treaty of 1884. Other cases involving changes prior to 1884 also were rnbmitted to the International Boundary Commission. In 1893 the United States and Mexico complained to each other that their citizens had been arrested on territory near Reynosa, Tamaulipas. This portion of territory had formed prior to 1884,4' nevertheless the two governments agreed to submit it to the Commission. Another similar case was that of the cattle seizures, in which both countries claimed the territory on which the seizures took place.49 The original Chamizal case was sent to the Joint Commission under Articles I and IV of the Treaty of 1889, even in the face of the statement of the petition that the sudden change complained of occurred in 1873."'' Perhaps a better HChamizal, U.S. Arg., p. 70. Article VIII of the TreatJy of' 1889 provides that the decifion of the commissioners is to be final unless disapproved within one month by either government. 26 Stat. 1512. 4"Chamizal, Awa.rd, p. 26. 46Chamizal, U.S. Arg., p. 92. 4'/bid., p. 93. •8Chamizal, U.S. ApJJ., II, 893-895. 49/bid., pp. 928-929. The American collector of customs at El Paso, Texas, seized some cattle of Mexican citizens at a ford between Ysleta and Zaragoza. Mexico presented a daim for the animals on the' ground that they were on Mexican territory. The Commission was unable to determine whether the seizure actually took place on American or Mexican territory. ooSee above, p. 132. The University of Texa~ Publication illustration of the practice of the two governments concerning the Treaty of 1884 is that of San Elizario, an "island" about twenty­five miles below El Paso, which was presented to the Commission on November 4, 1895. The testimony of two witnesses and the maps of the engineers indicated that about 1857 or 1858 the river had changed its course. In accordance with Article II of the Treaty of 1884, which deals with avulsive changes, the International Boundary Commission announced that. the boundary would remain in the channel of the river as it ran prior to the avulsion. The engineers were instructed to place monuments in this old bed.'·1 This action was specifically approved by both the United States and Mexico.,.~ Again, in the case of the Cordova tract, which is between the Banco de San Lorenzo and El Paso, the Commission assumed jurisdiction. The area of this tract in 1911 was about 370 acres, of which 237 acres had formed by accretion since the survey of 1852. When monuments were placed around it, the Mexican commissioner assented to the use of the Treaty of 1884 in determin­ing the dividing line.'·'; Other cases might be given showing the prac­tice of the two governments in following the principles set forth in the Treaty of 1884 to questions arising because of river changes since the marking of the boundary. However, the above represent a fair sample of what the two countries have done. Finally, an examination of the statements of the heads of the two states reveals their attitudes concerning the T'reaty of 1884. The Ameri­can views on the person responsible for the enunciation of our foreign policy are uniformly in favor of the President of the United States. Secretary of State Thomas Jefferson declared that "the President was the only channel of communication between the United States and for­eign nations...."'·• A report from the Foreign Relations Committee of the Senate asserted that the executive "is the sole mouthpiece of the nation in communications with foreign sovereignties."'':; The courts also uphold the view that "As the executive head of the nation, the president is made the only legitimate organ of the general government, to open and carry on correspondence or negotiations with foreign nations, in matters concerning the interests of the country or of its citizens."5'' Corwin states that: The President is the organ of diplomatic intercourse of the Government of the United States, first, tecause of his powers in connection with the reception and dispatch of diplomatic agents and with treaty making; secondly, because of the tradition of executive rower adherent to his office.'" '• 1Joint Journal, Aug. 10, 1896, Proceedings, I, 103-104. "~Mariscal to Osorno, Oct. 5, 1896, Chamizal, U.S. Counterca,se, p. 17. 03Chamiza.l, C.S. Co1111tercase, p. 75. It was given the form of a banco in 1900 by an artificial cutoff made with the consent of both governments. '·•Moore, IV, 680. '·'·S. Doc., 54 Cong., 2 sess., III (3469), No. 56, p. 21. '·"Durand v. Hollins, 1860, 4 Blatch. 451, 454. ;.;E. S. Corwin, The President's Control of Foreign Relations, p. 33. Boundary Commission, United States and Me.rico A Boundary Monument on Cordova Island (Photograph by the author: 1934) Finally, Quincy Wright summarizes American thought and practice with this statement: "All official utterances of the President are of interna­tional cognizance and are presumed to be authoritative."'" The thought and practice relative to the position of the Mexican President in foreign affairs are similar to the American.''!' Hence, in looking at the messages of the presidents of the two states the assump­tion is that their statements are the official attitudes on a given sub­ject. In December, 1884, the President of the United States transmitted for confirmation the Treaty of 1884 as follows: I herewith transmit, for the consideration of the Senate with a view to its ratifica­tion, a convention between the United States of America and the United States of Mexico, touching the boundary line between the two countries where it follows the bed of the Rio Grande and the Rio Gila, concluded November 12, 1884, and add that 5BQ. Wright, The Control of American Foreign Relations, p. 37. 59Herman James and Percy Martin, The Re1ny the American Senate, with the modification that it was to be operative for only five years....66 Finally, in April, 1891, a message from the President of Mexico once more referred to the Treaty of 1889 "for the establishment of an inter­national commission to study and determine pending boundary ques­tions, or those that may arise, by reason of the variations in the course 6°Chamizal, U.S. App., II, 1134. Messages and Papers of the Presidents, VIII, 254. The insertion of the Gila was an error which was later corrected. 61Chamizal, U.S. App., II, 1137. 62/bid., p. 1138. " 3/bid., p. 1135; Messages and Papers of the Presidents, VIII, 815. ~·Chwniizal, U.S. App., II, 1136; Messages and Papers of the Presidents, IX, 187. 6'•Chamizal, U.S. App., II, 1138. 6G/bid., p. 1139. Boundary Commission, United States and Me:rico of the Rio Bravo and Colorado River... . "67 Other messages are in the same tenor, all indicating that any questions arising from river changes are to be settled by the Treaty of 1884. The only exception is in the case of bancos which by the Treaty of 1905 are eliminated from the effects of the Convention of 1884. The majority, in rejecting the Mexican plea that the Treaty of 1884 was not retroactive, pointed out that the evidence within the Treaty of 1884 indicated that the two governments intended to set forth the rules to be applied to all future or pending cases arising as a result of past or future river changes."8 b. Fixed Line Theory Closely related to the argument of the non-retroactivity of the Treaty of 1884 was the one presented by Mexico that the boundary between the United States and Mexico was a fixed and invariable line, which had been established by the surveys conducted in pursuance of the treaties of 1848 and 1853. Article V of the Treaty of 184869 made the middle of the deepest channel, where there was more than one, the boundary between the United States and Mexico. The latter conceded that if this provision stood alone, a natural or arcifinious boundary would have been set up, and any changes in such a ftuvial boundary would be governed by the well known principles of international law on accretion and avulsion. In short, changes caused by erosion and accretion would place the boundary in the thalweg of the river; while a change of channel would leave the boundary in the deserted bed of the river. But, Mexico contended, the treaty did not create such a boundary; it provided for a boundary line to be marked precisely upon authoritative maps and for landmarks to be established showing the dividing line between the two republics. As final proof that the Treaty of 1848 established a fixed and invariable line, Mexico pointed to the last paragraph of Article I which states that the line determined upon should be religiously respected and never changed except by the express consent of both governments. Consequently, argued the Mexican com­missioner, the river, normally regarded as a natural boundary, had been converted into an invariable and artificial line by the treaty.'0 On the other hand, the United States reiterated that the boundary fixed by these treaties was a ftuvial one. It pointed to the practice of the two countries in deciding cases which arose between 1853 and the signing of the Treaty of 1884, which, the United States insisted, merely incorporated into a convention the generally accepted principles of inter­national law on accretion and avulsion." 61 Ibid., p. 1140. 6BChamizal, A ward, pp. 23-24. 699 Stat. 922. 1ochamizal, A ward, p. 16. 11chamizal, U.S. Arg., pp. 8-9. The Unfrersity o.f Texas Publication In presenting its argument, Mexico referred to the civil law, which distinguishes between land marked by fixed measurements (agri limitati) and arcifinious land marked by natural objects, such as rivers and mountains (agri arcifi_nii). The Roman Law denied the right of alluvion to the first class. However, the best authorities are agreed that this was an exceptional practice followed only in the cases where conquered lands were parceled out to Roman generals and legionaries. Indeed, one of the Mexican agent's chief authorities, A. Plocquo, stated that a riparian owner may claim alluvial deposits despite his holding of a specific number of acres.'~ As the opinion of the presiding commissioner pointed out, if a fixed line were established by the Treaty of 1848, the provision that the boundary should always run in the middle of the river would be nulli­fied. Furthermore, five years later, in the Treaty of 1853'3 the stipu­lation that the boundary should follow the middle of the river was repeated, and, this, despite the fact that during this period changes had taken place in the river.04 Such a statement could not accurately have been made with the knowledge of changes if a fixed boundary were intended by the two nations. Contrary to the Mexican agent's reasoning, the provision for a com­ mission to survey a river is not inconsistent with a ftuvial boundary. Such surveys are useful and indispensable for future use in determin­ ing the location of the river at a given time and enabling engineers to check when the river cuts a new channel or deepens one other than the boundary channel."· Does the treaty provision for a joint commission imply that the line they mark shall forever be the dividing line? Does the treaty provision concerning the line established by the joint commission refer both to the land boundary and to the course of the river at the time of the survey? The answers to these questions may be found in the surveys themselves, the statements and actions of the two governments, and the general practice of nations as evidenced by treaties, judicial deci­ sions, and the writings of publicists. Conclusive e\idence that neither the surveyors nor the commissioners thought they were marking down a fixed line upon the ftuvial portion of the boundary is revealed by an examination of the maps submitted by the commission. These merely indicate where the boundary ran. There was no effort to mark an exact line in the stream. Again, the Emory and Salazar surveys of the river were not identical though they were made within six months of each other. This discrepancy was noted 7~Chami::a1, Aica.rd, pp.16-17. 7310 Stat. 1032. 7 4Chami:al, A ward, pp. 17-18. 7:·/bid., p. 17. Boundary Commission, United States and M exfoo by the commissioners, who stated that this variance made no differ­ence in the boundary.7~ The question which Dennis, the American agent, raised may properly be asked: "Is it reasonable to suppose that Com­missioners Emory and Salazar would have thought this slight but wen known difference in their maps of the river could 'in no way affect the boundary line' if the boundary line were fixed and invariable ?"77 Obviously, if it had been understood in 1857 that the boundary marked under the treaties of 1848 and 1853 was to be fixed and invariable, one or the other of the two surveys necessarily would have had to have been adopted by the two governments as the official survey. At this point a brief examination of some of the treaties which pre­scribe rivers as boundaries may be made. Some conventions merely make the river the boundary without specifying that the line shall run in any particular channel.78 In 1773 Russia and Poland agreed that ". . . from the mouth of the Druiec river the Dnieper shall be the boundary between the two States."rn Most treaties, however, specifically state that the boundary shall fol­low "the middle of the river" or "thalweg" or "center" or "thread" of the channel as the international line. In 1763, Great Britain and Spain80 . .. agreed that in future the boundaries between the states of his Britannic Majesty and those of his very Christian Majesty in this part of the world shall be irrevocably fixed by a line drawn in the middle of the Mississippi River from its source to the Iberville River, and thence by a line drawn in the middle of this river and from the Maurepas and Pontchartrain lakes to the sea. . . . Occasionally, the entire bed of the river is given to one nation, thus making the boundary line follow one of the banks rather than the stream. Thus, in 1773 France and T'reves provided :8 1 So that the Sarre will constitute in this part a natural boundary b€tween the two sovereignties, from the point where it begins to flow between the respective nations. . . . It is nevertheless expressly agreed, by way of indemnity in favor of France, that the whole course and waters of the Sarre shall belong to! it throughout the extent which has just b€en indicated, save the rights of superiority and sovereignty of S.A.E. of Treves and of; control of the right bank of said river. A few treaties specify that the tha.lweg shall be regarded as a fixed line from which there is to be no departure regardless of changes in the course of the river. These treaties are important in this study because they illustrate the point that in cases where the parties to a 1GChamizal, U.S. Countercase, p. 63. The maps of the Rio Grande show the river and its bed. They do not indicate a marked line in the river ;as the dividing line. 77/bid., p. 19. rsJn the case of navigable rivers today, the thalweg is generally accepted as the dividing line. 79Martens, Reclleil de Traites, II, 131, 132. so/bid. (2d ed.), I, 110. s1Jbid., II, 261. 150 The University of Texas Publication boundary treaty wish to make the river a fixed and invariable line, it is clearly set forth in the convention. Otherwise, the boundary line would fluctuate with the changes caused by erosion and accretion. On January 30, 1827, France and Baden signed a treaty concerning the Rhine. Article VIII stipulated that82 The thalweg of the Rhine which constitutes the boundary between France and the German states, shall in the future also designate the limit of sovereignty between France and the grand duchy of Baden. Article X contains the unusual provision that The thalweg shall be examined and determined in October of each year, after the subsidence of the high water, by a French and a Baden engineer officer with the assistance of a licensed pilot from each state, and the course shall be indicated by stakes. Article XI declares that The thalweg once determined in this manner shall constitute the conventional limit of sovereignty between the two States, without regard to the changes which the actual thalweg may undergo in the interval between two examinations. The customs line must therefore not pass over this limit under any pretext. Clearly, France and Baden established a fixed boundary 0n the river. Stakes were driven to show the exact line. One other treaty providing for a fixed fluvial boundary is noteworthy. In Article IV of the Treaty of 1811, Russia and Westphalia agreed thats:i A map of the course of the Elbe shall be drawn up, on which the thalweg shall be designated by fixed points on either bank; it shall, as recognized by the special commissioners, constitute the boundary which is to determine at this part the limits of the territorial and sovereign rights between the two nations. This boundary shall remain as marked on this map whatever changes may take place in the thalweg and even the course of the river in future.... An examination of the treaties between the United States and Mexico reveals no such provisions as found in the last two treaties cited above. It appears, also, from a perusal of all the treaties studied that, with the exception of the French-Baden and Russian-Westphalia treaties, the usual rules of international law on accretion and avulsion govern fluvial boundaries. In fact, even in the Russian-Westphalian treaty, pro­vision was made that if an avulsion occurred "a new thalweg shall serve there as a limit to the territorial and sovereign rights ...", thus indicating that it is desirable for each nation to own one bank of a boundary stream. Since the Mexican-American treaties do not definitely state that the line shall be fixed and invariable, some doubt might be occasioned. Grotius says :8 4 BtJbid., NouveaJU R ecueil de Traites, VII.I, 126, 127. saJbid., I, 383. B4 Grotius, II, 218; Vattel, p. 103. Boundary Commission, United States and Mexico In cases of doubt, however, sovereign states which border on a river must be considered as having a boundary set off by a natural frontier; nothing, in fact, is more suitable for separating such states than a boundary which is not easily crossed.... The question of the nature of the boundary between the United States and Mexico was first brought to the attention of the United States in 1856. At this time Major W. H. Emory,s" American boundary commis­sioner, informed Secretary of the Interior Robert McClelland that an avulsive change was threatened in the Rio Grande Valley near El Paso; the latter referred the matter to the Attorney General.' 6 Attorney Gen­eral Caleb Cushing then announced his celebrated opinion on the law governing changes in alluvial streams. After pointing out that the United States and Mexico are divided by the Rio Grande, a stream subject to avulsion, erosion and accretion, he stated that the boundary line was the middle of the channel. However, should the river desert its old bed and follow a new channel, the boundary remains in the mid­dle of the old bed. On the other hand, where changes result from accretion and erosion the river continues as the boundary.8 ' Then the Attorney General quoted from the classical examples of the law of nations, tracing the origin and course of the doctrine which he had propounded.88 It should be noted here that the United States largely based its case upon this theory in the Chamizal arbitration. Presumably, a copy of this opinion was transmitted to the Mexican officials though no record can be found of the Mexican reply or attitude concerning it. However, eleven years later, a second case arose which clearly placed the Cushing opinion on the nature of the Rio Grande boundary before the Mexican officials. On January 9, 1867, Minister Matias Romero wrote Secretary of State W. H. Seward and enclosed a letter from Lerdo de Tejada, Mexican Minister of Foreign Affairs, who inquired about the American view concerning changes occurring in the Rio Grande. This question was raised by the Mexican Government fol­lowing receipt of a letter from the prefecture of Brazos, who, in 1866, complained that Americans at Franklin were claiming not ~mly all land which was deposited on the United States side by either accretion or avulsion but also land cut off by avulsion from the American side and sson October 10, 1856, a Mr. J. W. Magoffin in a letter from Fort Davis, Texas, asked Major Emory about the boundary line. Proceedings, I, iii. The commissionerii took the position that a change, such as was threatened, would make no difference in the boundary. sachamizal, U.S. Arg., p. 58. s1ops. A tty. Gen., VIII, 175-178; Chamizal, U.S. App., II, 559-563. SBFor the rules set forth by the publicists concerning accretion and avulsion, consult the following: Grotius, II, 217-218; Samuel Pufendorf, De Jure Naturae et Gentium Libro Octo, II, 594; Henry Wheaton, Elements of International Law (6th ed.), I, 353­354; Henry Halleck, International Law (4th ed.), I, 183; Christian Wolff, Jus Gentium Methodo Scientifica Pertractatmn, II, 63-64; and William E. Hall, A Treatise on International Law (5th ed.), pp. 121-122. The University of Texas Publication added to the Mexican side. He specifically asked about the status of certain towns if the river should return to a former channel!0 This letter elicited from Minister T'ejada several statements on the general practice on alluvial streams. He requested Romero to ascertain if the United States accepted these principles. Also he raised the ques­tion of whether avulsion would change the boundary line. As is evident from his letter Tejada takes the position that such a change would not deprive the owner or nation of such territory. He also clearly points out that changes by accretion can be ignored. 9'' Minister Romero sub­mitted the matter, and the American Secretary of State replied that the American views on the changes in the Rio Grande were covered by the opinion of the Attorney General, rendered in November, 1856, a copy of which he enclosed for the Minister's information.01 Thus the opinion, which was to govern the United States on questions of accretion and avulsion, was presented for Mexican examination and approval. On the following day, Romero replied that after perusing the opinion "it has appeared to me that the principles enunciated therein are equitable and founded on the teachings of the most accredited expositors of interna­tional law ..."; and until receiving contrary instructions from Mexico, "I hesitate not to adopt them, meanwhile, as reasonable and equitable . • • . " 92 Seemingly, the Mexican Government accepted the op1mon as a guide on changes in the river, for no objection was filed to either the opinion itself or the Minister's approval of it. The third problem caused by river changes prior to 1884 is known as the Brownsville Wharf Case. On August 11, 1871, Sefior Don Francisco Palacio, acting charge d'affaires of Mexico, complained to Secretary of State Hamilton Fish that for the past two years the Wharf Company of Brownsville had been constructing stakes and dikes about one hun­dred and fifty yards above Brownsville on the left bank of the Rio Grande. The purpose of this construction work was to prevent the river from following its natural course. He objected to these dikes on two grounds, one that they impaired navigation, which would be contrary to the treaty, and secondly, that because of these dikes Mexican ground had been covered by water and in some instances had been eroded away. However, his chief concern was that he feared a change in the course of the river that might alter the boundary line between the United States and Mexico. He pointed out that the slow erosion of Mexican territory with consequent accretion to the American side transferred the land to the United States.03 &9Chamizal, U.S. App., II, 557-558. Franklin is the present city of El Paso, Texas. 90Tejada to Romero, Dec. 5, 1866, i bid., p. 556. 01seward to Romero, Feb. 5, 1867, ibid., pp. 558-563. 02Romero to Seward, Feb. 6, 1867, ibid., pp. 564-567. 93Palacio to Fish, Aug. 11, 1871, ibid., pp. 569-570. Boundary Commission, United States and M e:>;ico On March 7, 1872, Secretary Fish, reporting to Sefior Palacio the results of an investigation of the works, informed him that there seemed to be no appreciable change on the Mexican banks and that navigation was not impeded.9 4 Thomas F. Wilson, United States consul at Matamoros, who had been instructed to investigate the matter, reported to William Hunter, Second Assistant Secretary of State, on December 21, 1871, that the entire river had changed in many places from natural causes. Sometimes large pieces of land had been detached from one side and formed on the other ; at other times the river had cut through solid ground and left tracts belonging to both countries on the opposite sides. The consul concluded : ... The local authorities of both countries collect taxes and exercise jurisdiction irrespective of the present river channel, where these changes have taken place, apparently in conformity with the principles of law enunciated in the opinion of Attorney General Cushing November 11th 1856 and reaffirmed by Secretary Seward, in his Dispatch under date of February 5th 1867 to Mr. Romero, and acquiesced in by the Mexican Minister, in his Dispatch of the 6th of February 1867 as "equitable and founded on the teachings of the most accredited expositors of inter­11ational law". ...9s Wilson's report was also sent to the Mexican Minister. In it one finds that the principles announced by Cushing were once more presented as the American attitude on changes in the boundary stream. Again Mexico filed no dissent with this view. Receipt of this report was acknowledged in a note in which Palacio referred to the frontier as "confused and altered by variations which have been produced in the river by natural causes."9 6 Late in 1874 Ignacio Mariscal, then Minister from Mexico at Wash­ington, approached Secretary Fish in regard to a convention to obviate boundary difficulties.97 This was in accordance with instructions from Sec­retary of Foreign Relations Lafragua, who had made to his subordinate the suggestion98 that the treaty should state clearly the acknowledged rules of international law on avulsion, accretion, and erosion. He con­tinued: It is clear that the boundaries which are definitely established when the treaty was celebrated, constituted mathematical lines to be thenceforth considered as invariable; and that no provision was made for the even\· not then foreseen, that the rivers, suddenly changing their courses, should penetrate into either of the two territories, dismembering them in such a way as to render the boundaries indefinite and imaginary, with irreparable detriment to one of the two Nations, whose territorial rights would be at the mercy of an unexpected change. in the currents of the river. 94Fish to Palacio, March 7, 1872, ibid., p. 574. 95Wilson to Hunter, Dec. 21, 1871, ibid., pp. 574-576. g6Palacio to Fish, March 11, 1872, ibid., p. 577. 97Mariscal to Lafragua, No. 148, Dec. 17, 1874, Arbitmje del Chamizal, II, 396; Chamizal, U.S. Arg., p. 43. 9BLafragua to Mariscal, No. 161, Sept. 12, 1874, Arbitraje del Chamizal, II, 387­388; Chamizal, U.S. Arg., pp. 44-45. The University of Texas Publication Here might seem to be an expression of the Mexican Foreign Office to the effect that the river boundary was fixed and invariable under the treaties of 1848 and 1853, though in the Chamizal case it was con­tended on behalf of the United States that Secretary Lafragua referred to avulsive rather than to erosive changes."9 On March 25, 1875, the Mexican Minister submitted to the Depart­ment of State a project for the convention that had been proposed.100 In accordance with a suggestion from Secretary Lafragua,101 the Mex­ican Minister in the following December amplified the draft treaty with another article on the occasion of again presenting the proposal for such a treaty to the Department of State,102 the additional article providing: If by the force of the current, a portion of territory of one of the two nations were severed from one of the margins and carried within the boundaries of the ne'.ghboring nation, the said portion shall continue to belong to the nation to which it formerly corresponded. Thus were laid the foundations for what was later substantially to become the Treaty of 1884, whose interpretation was to become the chief controversial point in the Chamizal arbitration. It remained for the international problems arising over sovereignty of Morteritos Island near Roma, Texas, to induce the two states to sign the treaty. Changes in the Rio Grande were again brought to the fore in 1884 when J. L. Haynes, customs collector, inquired of H. F. French, Acting Secretary of the Treasury, about two islands in the Rio Grande, named Morteritos and Sabinos.103 This question arose because of the seizure of some cattle by customs officers from Mier, Mexico, on American ter­ritory. A Mexican citizen, Manuel Garza Pefia, claimed that an earlier American seizure of cattle had been unlawful because it had occurred on his land which he claimed was within Mexican jurisdiction. He based his claim on the fact that he owned a small island which was in the Rio Grande at the time the Treaty of Guadalupe Hidalgo was made and which within the past three years had become attached to Texas by overflows of the river. He claimed the entire flat on the ground of accre­tion. About twelve to fifteen hundred acres of this land were the result of the accretions.10 • The Department of State checked the maps of the Emory survey and found that on them the island known as Morteritos had been marked as belonging to the United States. Consequently, Frelinghuysen pointed sschamizal, U.S. Arg., pp. 40-45. 100Mariscal to Lafragua, No. 35, March 26, 1875, Arbitraje del Chamizal, II, 397­399; Chamizal, U.S. Arg., p. 46. 101Lafragua to Mariscal, No. 48, April 30, 1875, Arbitraje del Chamizal, II, 400. 102Mariscal to Secretaria de Relaciones, No. 123, Dec. 2, 1875, ibid., pp. 401-403; Chamizal, U.S. Arg., p. 47. 103Haynes to French, March 26, 1884, Chamizal, U.S. App., II, 585. 104Jbid., p. 582. Boundary Commission, United States and M e:cico out to Minister Romero that Morteritos or Island No. 13, having been given to the United States when the boundary survey of 1853 was made, remained American despite any change in the course of the river. There­fore, the United States must reaffirm title to the area in controversy.105 That the Secretary of State had adopted the fixed line theory appears to be substantiated by the following extract from a letter to the United States Minister to Mexico, Philip Morgan, directing him to confer con­cerning the Morteritos situation with Secretary of Foreign Affairs Fernandez: ". . . You will point out to him that . . . the Mexican claim is completely at variance with the ground taken by the Mexican Gov­ernment itself, that the boundary fixed by the survey is definitive, and not to be changed."106 On October 9, 1884, Minister Romero notified the Department of State, after expressing satisfaction on the "uniformity of views and principles between our two governments," that Mexico accepted the American con­tention and withdrew its claim to the island.10 • The United States Government had requested Brigadier General W. H. Emory, who, as Major Emory, had conducted on behalf of the United States the boundary survey of 1853, to examine these survey maps; he confirmed the point that the main channel in 1853 lay to the right of the island. When the boundary was run in 1853, all islands to the right of the main channel of the Rio Grande were given to Mexico and all to the left to the United States.108 This, then, was the basis on which the maps of the survey were pre­pared and the island given to the United States. Many boundary treaties stipulate the disposition of islands found in boundary streams. Further­more, many state that changes in the river shall not affect the owner­ship of islands, once their sovereignty has been determined. A review of a few such treaties reveals that the procedure followed by General Emory and his colleague was that used by other nations. In Article II of the Treaty of 1784 between Austria and Bavaria the ownership of the islands found in the Danube, Inn, and Salza rivers was to be deter­mined by the thalweg; and, all islands on the left of it were to belong to Bavaria and all on the right were to form a part of the Inn quarter."'" The islands found in the Dniester were also to be determined by the thalweg and all those lying to the left of the thalweg were to belong to Russia and those to the right to Austria.110 In 1810 the treaty between iosFrelinghuysen to Romero, July 10, 1884, ibid., p. 655. losFrelinghuysen to Morgan, No. 609, July 11, 1884, ibid., pp. 655, 657. io•Romero to Frelinghuysen, Oct. 9, 1884, ibid., pp. 667-669. This conclusion to the discussion leads one almost to believe that Frelinghuysen had been outwitted, had in fact been led into a trap by accepting the fixed line theory in this case whereas, in general, American interests would not be served thereby. lOBEmory, Report, I, 65. io9Martens, Recueil de Traites (2d ed.), III, 754. i10/bid., Nouveau Recueil de Traites, I, 253-254. The University of Texas Publication Sweden and Russia provided that all islands situated to the east of the greatest depth of the channel or thalweg of the Tornea, Muonis, and Kongama rivers were to belong to Russia and those to the west to Sweden.111 While the Morteritos case was under discussion, the Mexican Embassy presented again the treaty which had been proffered in 1875.112 A month after Romero sent his note to the Secretary of State, the Treaty of 1884 was signed at Washington. Whether its terms reaffirmed recognized principles of international law which had been subscribed to by the two governments, or whether they marked a new departure, substituting such rules of international law for a previously held theory of an immutable boundary, is a key question in the Chamizal controversy. In recapitulation, it might be pointed out that the fact of the Cushing opinion and its subsequently implied acceptance on both sides of the Rio Grande-especially in the Seward-Romero correspondence of 1867 and in the Fish-Palacio correspondence of 1871-1872-constitute the chief foundations for the view that the Treaty of 1884 simply stated principles that already had been understood. On the other hand, Mex­ico's repeated efforts to conventionalize such principles might appear to substantiate, by negative reasoning, the view that the Treaty of 1884 was a new departure so far as the United States-Mexico boundary was concerned; for, if the principles it contained were already understood and applied to the border, what would have been the practical use of conventionalizing them? Secretary Frelinghuysen's perhaps inadvertent acceptance of the fixed line theory, so far as it would appear to be proved by facts, would be positive proof. T'o hold to the former view-that is, that the convention merely set forth what was already in fact applicable to the boundary-is to defeat the fixed line theory and is equivalent to holding the Treaty of 1884 to be retroactive. In reviewing the treaty, it will be noted that the tense of the signifi­cant verbs in the pertinent articles is the future. Whether or not that is a determining detail in regard to interpretation of the treaty is another way of stating the crux of the controversy over the Chamizal so far as the fixed line theory and the theory of retroactivity are concerned. Application of the Treaty of 1884 between the time of its going into effect and the time of the Chamizal arbitration would seem to lend little information on the questions here considered. It will be recalled that the International Boundary Commission provided for by the Treaty of 1889113 was organized for. work on January 4, 1894. Some of the cases arising from river changes, which were presented to the Commission, lllJbid., p. 315. 112Romero to Frelinghuysen, May 31, 1884, Chamizal, U.S. App., II, 588-591; same to same, June 5, 1884, ibid., pp. 594-595; same to same, July 10, 1884, ibid., pp. 649­ 651. See also For. Rels., 1884, pp. 380ff. i1326 Stat. 1512. Boundary Commission, United States and Mexico include the following problems. A dispute, which arose in 1893 as a result of land formed by accretion since 1865, was submitted, after a lengthy correspondence between the United States and Mexico, to the Boundary Commission. In the same year the case of the arrest of sev­eral American citizen on land, which had formed prior to 187 4 and was claimed by both nations, was set aside for consideration by the Commission. The Banco de Vela claim, which was based on accretions begun in 1853, was also sent to the Commission.11 The case of the • Island of San Elizario, concerning an avulsive change in 1857 and 1858, was decided by the International Commission and no mention was made of a fixed line at the time. The decision in this case was expressly approved by the Mexican Government.115 One final example of the actions of the two governments might be given to uphold the view that the Rio Grande was a ftuvial boundary, and that is the Bosque de Cordova, an extension of land between El Paso and the Banco de San Lorenzo. In 1900 by an artificial cutoff it was given the form of a banco.116 If the fixed line theory were adopted the land formed north of the line of 1852 would belong to the United States.11 ' Bridging the International Boundary Commission's initial consider­ation of the Chamizal situation, in which, as has been noted, the fixed line theory was not considered, the development of this theory came to its next phase in the diplomatic discussions preliminary to the refer­ence of the controversy to arbitration.118 Jose Godoy, charge d'affaires ad interim at the Mexican Embassy in Washington, on May 21, 1908, approached Secretary of State Root with a suggestion for a treaty to settle not only the Chamizal question but all other river boundary matters as well. In the course of his letter, he made a forthright statement of the fixed line theory, and a sugges­ tion that the solution for boundary problems must originate with an admission of it.119 With this introduction, the Mexican representative launched into a summary of the proposed treaty provisions:'"" First, abandonment by both countries of the fluvial boundary set by previous treaties and adoption of the existent river channels in lieu thereof, with an optional recommendation that the two countries exchange areas detached from their sovereign so that Chamizal and Cordova Island would pass to the United States and the Horcon bar and San Elizario Island would go to Mexico; second, retention of the rivers as boundary limits despite changes in the future, whether these be of avulsive or erosive nature, except for avulsively detached areas containing more 114Chamizal, Award, p. 26. 115/bid., p. 28. 11schamizal, U.S. Arg., p. 77. 111/bid., p. 78. 118/bid., pp. 74-75. mGodoy to Root, No. 203, May 21, 1908, ibid., U.S. App.. I, 375, 378. l~OA draft, in Spanish, of the Mexican treaty project is in M. B., Env. 27. The University of Texas Publication than 400 hectares or 200 inhabitants; third, employment of commission­ers appointed by the two governments to act ad hoc in such abnormal river-bed changes by attempting to restore the old bed or to mark off the old boundary line so as to preserve the old sovereignty of the area; fourth, a prohibition against artificial river changes, with provision for restoration of the old channel or retention of the old sovereignty in such cases; fifth, mutual respect of private titles affected by the provisions. Secretary Root's reply to the proposition was vague. "Agreeing in principle," he was indefinite in reacting to most of the provisions, though he did state opposition to the proposed use of temporary boundary commissions in place of the permanent commission. It is noteworthy that he expressed no specific dissent to the fixed line view.121 Godoy replied in turn, saying122 that his government was pleased that the United States accepted the fundamental principle of the pro­jected treaty that the boundary had "ceased to be along the real courses" of the Colorado River and the Rio Grande. Thenceforward, the Mexican representative attempted to prove by logic that the acceptance "in prin­ciple" meant recognition of Mexico's sovereign title to the Chamizal tract, and added a discussion of the mutual advantages in the proposed treaty. Nothing more came of the discussion until the spring of 1909, when Ambassador de la Barra again urged the treaty upon the Department of State.1 23 Where Secretary Root had found occasion to "agree in prin­ciple," his successor, Secretary Knox, replied to this second overture with a flat rejection of the Mexican premises.12Ambassador de la Barra, • in his reply several months later, said, in substance, to the Secretary of State that the boundary as set under the treaties of 1848 a.nd 1853 was an "invariable and fixed line."125 He then attempted to prove the fixed line theory by a review of some of the historical incidents which have been mentioned here. Emphasis was laid on the Frelinghuysen view in the Morteritos affair and on Root's acceptance "in principle" of the Mexi­can project of 1908. De la Barra in reality indicated in advance the bases on which Mexico would attempt to convince the arbitral tribunal when the Chamizal case went to that means of settlement after the United States Government refused to join in the general treaty proposal. What has been summarized above will indicate in general the posi­tions taken by opposing counsel and agents of the two governments when the question went through the arbitral phase. Without attempt­ing to explore all the ramifications of the subtle polemics of the case, 121 Root to Godoy, No. 361, Oct. 22, 1908, Cham.izal, U.S. App., I, 383-384. i22Godoy to Root, No. 123, Dec. 12. 1908,. ibid., pp. 385, 390. 123De la Barra to Knox, No. 205, April 6, 1909, ibid., pp. 395-396. 124Knox to de la Barra, No. 78, July 28, 1909, ibid., pp. 396-398. i2~De Ia Barra to Knox, No. 469, Jan. 15, 1910, ibid., pp. 398-406. Boundary Commission, UnUed States and Mexico suffice it to say that the Mexican case simply dilates upon the premises offered by Ambassador de la Barra in his argument to Secretary Knox.1 ~" The case for the United States reviewed the historical facts with a different emphasis. It challenged the authority of the boundary commis­sioners operating under the Treaty of 1848 and the Treaty of 1853 to make binding interpretations of the treaty provisions ; 1~• it pointed to the Cushing opinion, to the Seward-Romero correspondence of 1867, to the Palacio-Fish correspondence of 1871-1872, and to the Mexican treaty project of 1875 to demonstrate conclusions in opposition to those of Mexico as to the historical bases of the fixed line ;125 the conclusive effect of the Frelinghuysen theory in the Morteritos case was scouted in an attempt to explain away that incident,12" and a substantial attack made upon the theory of the fixed line boundary.''30 In the majority opinion in the Chamizal case, Presiding Commissioner Lafleur rejected the Mexican contention for a fixed line. Commissioner Mills joined in that part of the decision, with Commissioner Puga dis­senting. After a resume of the case and a consideration of the treaties of 1848 and 1853, Presiding Commissioner Lafleur in upholding the defeat of the fixed line theory said: While ... the Treaty of 1848 . . . or the Treaty of 1853, standing alone, might seem to be more consistent with the idea of a fixed boundary than one which would vary by reason of alluvial processes, the language of the Treaty of 1853, taken in conjunction with the existing circumstances, renders it difficult to accept the idea of a fixed and invariable boundary. During the five years which elapsed between the two treaties, notable variations of the course of the Rio Grande took place, to such an extent that surveys made in the early part of 1853, at intervals of six months, revealed discrepancies which are accounted for only by reason of the changes which the river had undergone in the meantime. Notwithstanding the existence of such changes, the Treaty of 1853 reiterates the provision that the boundary line runs up the middle of the river, which could not have been an accurate statement upon the fixed line theory. Presiding Commissioner Lafleur next took up some of the historical incidents in the background of the fixed line theory. The Canadian jurist said that the boundary commissioners, in making remarks to the effect that the boundary being determined under the treaties of 1848 and 1853 was invariable, "were exceeding their mandate, and that their views as 12GThe Mexican position is argued in Arbitraje del Chamizal, I, 34ff.; the position as to the fixed line, ibid., pp. 46ff. Two points worthy of comment in the Mexican case are: First, an attempt to show a retroactive treaty unconstitutional under paragraph 9, section 9, article one of the United States Constitution, the Mexican counsel confusing retroactivity with the pro­hibition against ex post fa,cto laws (ibid., pp. 40-42) ; second, an attempt to impeach the Cushing opinion as being formulated in ignorance of the provisions of the pertinent treaties (ibid., pp. 57-58). mchamizal, U.S. Arg., pp. 31-32. 12'Jbid., pp. 37-48. 129Jbid., pp. 48--55. t30Jbid., U.S. Case, pp. 32-41. The University of Texas Publication to the proper construction of the treaties under which they were work­ing could not in any way bind their respective governments."131 He gave special heed to Attorney General Cushing's opinion on the nature of the boundary, particularly in view of Mexico's failure to dissent from it at that time.132 Furthermore he attached little significance to the alleged acceptance by Secretary of State Frelinghuysen of the fixed line theory.133 Of the incidents in diplomatic relations concerning the border and their relationship to the case, the presiding commissioner pointed out that the only real importance to be given this correspondence was to show "that a considerable doubt existed as to the meaning and effect of the treaties of 1848 and 1853."134 The Treaty of 1884 which dissipated these doubts135 rendered impossible the acceptance of the fixed line theory, declared the majority opinion.126 The majority attached no importance to the declarations of high offi­cials regarding the essential features of the treaty made during the interim between the signing of it and ratification,137 but did consider of value the course of action pursued by the two governments, particularly after the International Boundary Commission was created by the Treaty of 1889, to administer the Treaty of 1884. Consequently, the presiding commissioner said that if any doubt had existed as to the intention of the treaty makers, it would be dispelled by an examination of the uniform and consistent manner in which both governments declared the document to apply to past as well as to future changes.138 The majority cited, for illustration, in turn, the disposition by the Commission of the earlier banco problems-Banco de Camargo, Banco de Vela, Banco de Granjeno, and Banco de Santa Margarita; conventionalization, in the Treaty of 1905, of the view that the Treaty of 1884 applied retrospectively in affecting bancos; the omission of the fixed line theory in the first Chamizal case; and the disposition of the San Elizario problem.139 Therefore, the presiding commissioner and the American commissioner held . that the treaties of 1848 and 1853 created an arcifinious boundary, and that the Convention of 1884 applied retroactively.14° Mexican Commissioner Puga filed a separate opinion which amounted to a restatement of the Mexican case on this issue.141 From the diplo­matic records of the period from 1852 to 1884, the Mexican commis­sioner found the conclusion inescapable that Mexico considered the rn1chamizal, Award, pp. 18-19. 1 3qbid., p. 19. 133/bid., p. 20. 134/bid. 135/bid., p. 23. 136/bid., p. 24. 131Ibid., pp. 24-25. 138/bid., p. 24. 139/bid., pp. 27-28. 140/bid., p. 28. Bl/bid., pp. 49-55. Boundary Commission, United States and Me;rico boundary to be fixed and invariable.H~ As to the facts from which the majority had adduced proof that the governments had accepted their view in practice after the adoption of the Treaty of 1884, the Mexican commissioner proceeded by exercises in logic to reach diametrically opposite conclusions.143 Thus Mexico clung to a view which, if the majority opm1on be accepted, came to it comparatively late in the history of the boundary­an attitude which, had it prevailed, would have established Mexican sov­ereignty over a large section of the city of El Paso. It would have meant little else, f 6r situations along the rest of the border had already been covered by the stipulations of later treaties and other modes of prac­tice. For practical effect, reliance on this view by the majority of the arbitral body would have meant only Mexican possession by title of the Chamizal area, and would have given it an immense bargaining point for future boundary adjustments even if the establishment of Mexican control over the area would have proved out of the question or unde­sirable to it. At least it would have meant the reduction to chaos of an already complicated structure of private titles in the area. c. Analysis of the Question of Rapid Erosion Defeated in efforts to have accepted the fixed line theory and the theory of non-retroactivity of the Treaty of 1884, as a basis for set­tling the Chamizal question, Mexico still had, in the theory of rapid erosion under the Treaty of 1884, a point on which to rely. The difference regarding the meaning of the Treaty of 1884 in this regard had been the one on which the Chamizal case had originally arisen and first divided the International Boundary Commission. Its origin lies in the wording of Article I of the Treaty of 1884144 wherein it provides: The dividing line shall forever be that described in the aforesaid Treaty145 and fol­low the centre of the normal channel of the rivers named, notwithstanding any altera­tions in the banks or in the course of those rivers, provided that such alterations be effected by natural causes through the slow and gradual erosion and deposit of alluvium and not by the abandonment of an existing river bed and the opening of a new one. On the physical facts pertinent to the Chamizal situation the commis­sioners of the International Boundary Commission found no difficulty in agreeing. It was patent, both from topographical studies and from the testimony of witnesses, that the river until 1864 had eroded gradually southward in the bend where it swings out of its narrow gorge into the 14~/bid., p. 53. 143/bid., pp. 54-55. 14424 Stat. 1011; App. III. 145Treaty of 1848, 9 Stat. 922. The University of Texas Publication broad El Paso Valley. In and after that year by a series of intermittent, irregular, and visible movements it cut into its southern bank, making the arc of its bend still deeper to the south.MG In the final stage of the Commission's first consideration of the case, the Mexican commissioner, F. Javier Osorno, by a syllogism summarized the Mexican position that any change other than slow and gradual would not change the boundary. Since according to his interpretation the change at Chamizal had not been slow and gradual, the line of 1852 remained the boundary. He went on to strengthen his syllogism by cit­ing Websterian definitions of the significant words "slow and gradual," and by quoting from the witnesses to show that the changes did not meet the standard set by the dictionary.117 Finally, to complete the sub­stantiation, the Mexican commissioner turned to the then recent case of Nebraska v. Iowa118 to find what he regarded as implicit proof of his contentions. Contrasting with the Chamizal situation the words of the opinion of Justice Brewer in that case, the Mexican commissioner observed"" that the Missouri River differed from other streams in ref­erence to accretion only in the velocity of its current, the accretions nevertheless proceeding imperceptibly. He pointed out that the Rio Bravo differed from the Missouri in that the latter "does not dry as the Bravo, which is merely a torrential river in which the slow and gradual process of accretion is impossible. . . ." ";0 He added that the bed of the Rio Grande was changed by freshets from 1864 to 1868. The technique of the Mexican commissioner was to use portions of the opinion given in Nebraska v. Iowa and erect upon them a structure of definitions. He sought to prove that an erosive process of rapid progress and great force must, under the provisions of the T'reaty of 1884, be classified, from the standpoint of legal effect, as tantamount to avulsion. Such a view would necessarily assume that there is a line by which rapid and slow erosion could be differentiated. The whole theory of the Mexican commission­er's argument is based upon the belief that the adjectives slow and gradual in the significant passage of the Treaty of 1884 were inserted for the purpose of modifying restrictively the noun that followed, namely erosion. The theory of the American attitude was that the adjectives were inserted to modify the noun in a purely appositive sense. In passing, it is worthy of note that the Mexican commissioner's opin­ion contained what was equivalent to its own refutation. In the excerpts quoted above, the following words of the commissioner are in point: "The Bravo is ... merely a torrential river in which the slow and gradual process of accretion is impossible." The commissioner would, 146Proceedings, I, 50-59, 65-67; Mexican Engineer's Report, May 26, 1896, ibid., pp. 72-79; for map see App. XI. 14' Proceedings, I, 80-82. l 48143 u.s. 359 (1892). H"Proceedings, I, 84-85. luOfbid. Boundary Commission, United States and Mea:ico however, extend the provisions of Article I of the treaty only to that class of alluvium which he declared to be impossible. If his words were correct, and his view tenable, then the Treaty of 1884 ·would amount to a conventionalization of the fixed line theory; yet, by its own terms, that document did just the opposite. Commissioner Mills, on July 17, 1896, delivered his reply to Commis­sioner Osorno's proposition. "·1 He pointed out that the celebrated opin­ion of Attorney General Cushing admitted only two types of river alter­ations insofar as affecting legally the location of boundaries; and, he further insisted, the Treaty of 1884 had divided such river changes into two categories: alluvial and avulsive. To strenghen his point, the Ameri­can commissioner showed that the Treaty of 1889, in its fourth article, charged the Commission with the duty, in the survey of bancos, of applying for legal eff€ct either Article I, dealing with alluvial changes, or Article II, covering avulsion, of the Treaty of 1884; thus, he rea­soned, no other class of natural river changes was recognized. Dealing with the matter of definition, the American commissioner observed that ".. . To be slow and gradual need not of necessity be constant and uniform in ratio of time, but may be intermittent wholly, or unequai in degrees or steps of progress....";52 He went on to deny the Mexican commissioner's interpretation of his, Mills's, earlier words of an agreement that all changes in the Upper Rio Grande were essentially avulsive. '"" He dissented from the view that the witnesses had not shown conclusively that the change in the river was slow and gradual, arguing from the words of the witnesses, that the accretion was accomplished over a long period and part at a time.10·• After examining the testimony of witnesses in the Nebraska v. Iowa case and comparing it with the attestations in the Chamizal hearings, the American commissioner concluded that the Missouri surpassed the Rio Grande in violence.'-''' He added that to uphold the Mexican view would of necessity have the consequence of invalidating all of the Com­mission's work in the surveying of bancos. E ·G When the Chamizal case advanced to the arbitral phase, virtually noth­ing was added to the views of the two governments as stated at the first consideration by the commissioners in their opinions, which have been examined above. The contentions of Mexico presented before the arbit­ral court consisted of a dilation on the points covered earlier by that country's former com:missioner. i:,, The United States, in turn, presented an elaboration of the views of Commissioner Mills.'"' 1.51/bid., pp. 86-93. 152/bid., p. 87. 153/bid., pp. 88-89. 154Jbid., pp. 90-91. 155/bid., pp. 91-92. 156/bid., p. 93. 15' Arbitraje del Chamizal, I, 244-283. 158Chamizal, U.S. Case, pp. 13-19; ibid., U.S. Arg., pp. 94-112. The University of Texas Publication Presiding Commissioner Lafleur, who had sided with the American commissioner on the fixed line theory and retroactivity, here decided against the United States, the Mexican commissioner joining him to form a majority. Said the majority reviewing the transcripts of testi­mony from the earlier case :1" 0 " ••• the changes referred to in this tes­timony cannot by any stretch of the imagination, or elasticity of language, be characterized as slow and gradual erosion." Referring to the case of Nebraska v. Iowa, the Canadian jurist said that the decision in that case, holding the legal effects of erosion to obtain even where the phenomenon was violent, must be distinguished from the one before the arbitral tribunal :100 ... In Nebraska v. Iowa the court, applying the ordinary rules on international law to a fluvial boundary between two States, held that while there might be an instan­taneous and obvious dropping into the Missouri River of quite a portion of its banks, and while the disappearance, by reason of this process, of a mass of bank might be sudden and obvious, the accretion to the other side was always gradual and by the imperceptible deposit of floating particles of earth. The conclusion was, therefore, that notwithstanding the rapidity of the changes in the course of the channel, and the washing from the one side onto the other, the law of accretion controlled on the Missouri River, as elsewhere. Thus the majority declared that this case was not applicable because while the accretions to the Chamizal tract may have been slow and gradual, the Treaty of 1884 requires that the erosion also be slow and gradual. Consequently, they held, the rule to be applied by the treaty differed from that which was used in Nebraska v. Iowa.10 L The practical question of determining what is slow and gradual was also raised. It was shown that the north bank of the Rio Grande had moved south about 69 feet in 1852-1853; a survey in 1859 of the same plot revealed the north bank had receded south about 232 feet between 1853 and 1859; and a third survey indicated that the north bank between 1872 and 1885 had moved southward 558 feet.1 62 The last period the majority of the Commission would consider rapid movement. This is interesting in the light of the case of the Banco de Camargo, the facts of which are as follows: In 1865, in front of Rio Grande City, the Rio Grande moved southward for twenty-seven years, until in 1891 it aban­doned its old channel; during these twenty-seven years the river had moved 2,350 meters or an annual average of 87 meters. Yet in dealing with this case, the Mexican commissioner agreed with the United States commissioner that from 1865 to 1891 the river by "gradual erosion from the Mexican bank and deposit on the American bank" changed to the HO/bid., Award, p. 32. 160/bid., pp. 32-33. l GJ Ibid., p. 33. 162Joint Journal, May 7, 1896, Proceedings, I, 60. Boundary Commission, United States and M exfoo south.163 The American commissioner pointed out that in the Chamizal tract the greatest annual average movement was thirty-two meters.rn4 In the case of Nebraska v. Iowa in which the Supreme Court held that the rule of accretion applied despite the rapidity of changes, the river movement was nearly three times as great as that of the Rio Grande at Chamizal.165 The presiding and Mexican commissioners then applied the case of St. Louis v. Rutz,166 which, they thought, was very similar to the Gnam­izal case. In this case the United States Supreme Court found that the erosion of the bank of the Mississippi River had not been slow and gradual, but that the caving in and washing away of the bank was rapid and perceptible. These cavings occurred chiefly at the rises or floods of high water in the Mississippi River, usually in the spring. These rises or floods lasted from four to eight weeks, and each time a strip of land from the river bank of 240 to 300 feet in width would be carried off. Sometimes, a city block would be washed away in a day or two. The Court held that the degradation of the Mississippi River bank was not slow and gradual. The majority commissioners asked, if the case of the Mississippi was found not to be slow and gradual, how could the destruction of land, houses, and forests, described by Chamizal wit­nesses, be regarded as slow and gradual erosion ?H;r The lack of pertinency of the St. Louis case rules it out as a point for the majority to rely on because although both in that case and in the Chamizal there was rapid erosion, in the former, after complete sub­mergence for several years, an island formed on the east side of the Mississippi River and attached itself by accretion to the plaintiff's sur­veys. The Supreme Court held "that the holder of the Missouri title on the west bank could not own the land which thus appeared first by an island formation and subsequently by accretion thereto east of the thread of the stream."168 The American commissioner dissented to the proposition that part of the Chamizal tract was not formed by slow and gradual erosion and deposit of alluvium. He pointed out that the Treaty of 1884 makes pro­vision for only two types of changes, to wit: one, alterations in the banks or the course of the rivers by natural forces through slow and gradual erosion and the deposit of alluvium, and, two, any other change caused by the force of the current, either in cutting a new channel or, i6aJoint Journal, July 17, 1896, ibid., p. 89. 164/bid. 165/bid., p. 91. Another example of rapid erosion is that in the Red River boundary dispute. The court compared the Red River with the Missouri and ruled that the decision in Nebraska v. Iowa controlled such changes. W. C. Carpenter, "The Red River Boundary Dispute," A. J., XIX, 517-529 (July, 1926). 166138 U.S. 226 (1891). 167Chamizal, Award, p. 33. 168/bid., p. 44. The University of Texas Publication where there is more than one channel, deepening another than that which marked the boundary in 1852. These are the two classes of changes provided in the treaty. The majority agreed that the river had not cut a new channel or deepened one other than the boundary channel. Therefore, reasoned the American commissioner, the only alternative change was erosion and accretion.rnv The American commissioner also presented the Treaty of 1905, which provides for the elimination of bancos. In this treaty it is stated that bancos were formed "owing to slow and gradual erosion, coupled with avulsion.""0 As he indicated, the erosive changes causing the bancos were much more rapid than those occurring in the Chamizal region. However, the presiding and Mexican commissioners declared that such facts had not been included in the report given by the commissioners to their governments. The Mexican commissioner, also, felt that there were no similarities between the two cases.111 Commissioner Mills observed that the fifth article of the Treaty of 1884 provided protection for property rights "in respect of lands which may have become separated through the creation of new channels as defined by Article 11." However, he added, "it makes no provision what­ever for the protection of property rights in contemplation of any other change in the course of the river, much less does it make such provision as to lands degraded by rapid and violent erosion."1 12 To an argument made by the presiding commissioner in the conduct of the case, that private tights could not be preserved when the action of the river necessarily 0 lorie --GAGING STATIONS --ESTACIONES HIDROMETRICAS WATERSHED BOUNDARY----LIMITE DE CUENCA STATE BOUNDARv-·--·--·-UMITE DE ESTADO 0 EL PASO. TEXA S 1939 l vcumc.e n ~o~m \ \ C H 0 \11 ,K.1 UiFlor (Water Bulletin, 1939, p. 3) The University of Texas Publication In April, 1880, forty-five citizens of the town of San Elizario in El Paso County petitioned the county commissioners that they either be given provisions for sustenance or be relieved from taxes for the years 1879 and 1880.3 The county judge thereupon wrote to Governor Roberts of Texas, transmitting the petition and averring that the main trouble of the petitioners was lack of water and that this deficiency resulted from the fact that the stream was being tapped from its source on down through the territories of Colorado and New Mexico. He asked that Governor Roberts call the attention of the Governor of the Terri­tory of New Mexico and of Congress to the matter. As for Mexico, the judge asserted that the Mexicans were accustomed to taking water from the river by means of an acequia (irrigation canal) one and one-half miles above El Paso, and that they often took 1.he whole flow of the stream in dry weather. He stated that the dispute had been eased by a truce, but that the Americans were planning later to contend for half of the water.4 The Governor of Texas reported the circumstances to the United States Secretary of State who directed the United States Min­ister to Mexico to investigate the matter and also inquired about the point from the Mexican Minister.5 Four years later Mexico answered this complaint, when, on August 27, 1884, Minister Romero informed Secretary of State Frelinghuysen that the scarcity of water in 1880 was due to the dryness of the season, not diversion. He admitted that there did exist a dam at Paso del Norte, Mexico, but pointed out that it had been in use over 300 years and no additions had been made to it recently.6 By 1888, definite plans were being formed for the alleviation of the difficulties of these irrigators. The city of El Paso requested Colonel Anson Mills, who was later to become the boundary commissioner, to devise a plan for water conservation. Colonel Mills recommended that the two nations jointly construct a conservation dam in the canyon above El Paso. He embodied this idea in a letter to the Secretary of State with the further suggestion that the initial steps toward reaching an agreement with Mexico be taken through diplomatic channels.7 Mills estimated that $100,000 would be sufficient to construct the dam, with equal amounts both for the removal of railroad tracks from the pro­posed lake site and for condemnation of lands to be submerged. He attributed the water shortage not to Mexican uses but rather to the expansion of irrigation along the upper reaches of the river. In response to Mills's suggestions, Congress passed a concurrent resolution on April 29, 1890, requesting the President to begin negotiations with Mexico 3For. Rels., 1880, pp. 754-755. 4 Cook to Roberts, April 16, 1880, ibid., pp. 753-754. 5Roberts to Evarts, May 10, 1880, ibid., pp. 752-753; Evarts to Morgan, June 12, 1880, ibid., p. 752; Evarts to Navarro, June 15, 1880, ibid., pp. 783-784. nMoore, Digest, I, 653; For. Rels., 1880, pp. 752-754, 784. 7Mills to Bayard, Dec. 10, 1888, H. Doc., 54 Cong., 1 sess., XLVII (3414), No. 125. Boundary Commission, United States and Mexico directed toward the solution of the Rio Grande problem.8 The matter was evidently adjudged not of sufficient urgency for immediate atten­tion, for nothing was accomplished. The question was revived in 1894 when the Mexican consul at El Paso complained to the Mexican Minister in Washington that the Juarez region was being rapidly depopulated and that still more irrigation com­panies were being formed both on the El Paso side of the valley and in the upper reaches of the river. This communication was sent by the Mexican Minister to the United States Secretary of State, who referred the matter to the Secretary of Agriculture. The latter official reported that it was by no means certain that the failure of the stream was due to upcountry irrigation, because the river had been repeatedly dry in the past. Records in the Department of Agriculture showed no appreci­able increase in the utilization of water for irrigation in the Upper Rio Grande.9 Thus again the matter was delayed. The Mexican Minister renewed his endeavors in the latter part of 1895. His letter to Secre­tary of State Olney stated that in 1894 the river was dry throughout the summer months, that the population of the Mexican side of the valley was reduced by half, and that land values were greatly diminished. He stressed the theory of navigability of the Rio Grande as set down by the Treaty of Guadalupe Hidalgo. To prove the point, he called atten­tion to the report of a United States army official in 1850 that he had ascended the river in a boat, reaching a point several kilometers above Paso del Norte. He went on to say that the fact that the river was a boundary and therefore an international stream restricted the freedom and rights of the inhabitants on both banks and did not permit them to construct works that reduced the volume of water to such an extent that it was no longer navigable, and even, at last, was dried up entirely. Furthermore, even if this view of the treaties of 1848 and 1853 be incor­rect, he said, Mexico has a valid case inasmuch as](• SJbid., p. 6. See also H . Rep., 51 Cong., 1 sess., II (2808), No. 490. The draft of this resolution as it left the House of Representatives was much more complete and required the president to negotiate specifically for an international dam at El Paso. It also suggested a joint international commission for the purpose of adjusting and determining the respective water rights of the citizens of the two countries in and to the said reservoir. See ibid., p. 9. In its final draft, however, the resolution merely requested the president to enter negotiations directed toward a remedy for the difficulty. Mr. Lanham, reporting from the Select Committee on Irrigation of Arid Lands, l'Uggested that not only was Mexico in hearty accord with the proposition, but "that they will readily be disposed to participate in the expense involved." Ibid., p. 8. It is safe to assert that Mexico never intended this construction to be placed on its acquiel!cence in the scheme. 9Guarneros to Romero, Oct. 4, 1894, For. Rels., 1894, pp. 395-396; Romero to Gres­ham, Oct. 12, 1894, ibid., p. 395; Gresham to Romero, Nov. 1, 1894, ibid., p. 397. 10Romero to Olney, Oct. 21, 1895, S. Doc., 57 Cong., 2 sess., XIII (4428), No. 154, pp. 7, 8. Italics introduced. The statement is significant in view of the exactly opposite position taken by Mexico in later negotiations concerning the waters of the Lower Rio Grande. The University of Texas Publication international law would form a sufficient basis for the rights of the Mexican inhabitants of the bank of the Rio Grande. Their claim to the use of the water of that river is incontestable, being prior to that of the inhabitants of Colorado by hundreds of years, and, according to the principles of civil law, a prior claim takes precedence in case of dispute. Such an appeal as this could not be ignored. The Secretary of State, still attempting to give effect to the congressional resolution of 1890, sent the letter to the Attorney General, presenting two questions: ( 1) Are the provisions of the Treaty of Guadalupe Hidalgo ~till in force? (2) Is the United States obliged by the principles of international law, independently of treaty or convention, to refrain from continued obstruc­tion and diversion of the Rio Grande, and is Mexico entitled to ade­quate indemnity for such harm in the past ?11 These queries brought forth an opinion from Attorney General Harmon stating that the upper riparian state on an international stream is unaccountable to the lower riparian.1 2 This matter of accountability will be discussed in the con­clusion to this chapter. The Attorney General in answering the first question stated that dams do hinder navigation, but he declared that Article VII of the Treaty of 1848 is limited in application to the international section of the river. Above this point, within the territory of the United States, a different rule, one governing the protection of private rights upon which the government could not encroach except by eminent domain, would apply. Furthermore, he reasoned, the treaty protects the right of navigation, whereas the claim for an indemnity is for injuries to agriculture above the head of navigation. Consequently, in his opinion13 . .. the claim now made by Mexico finds no support in the treaty. On the con­trary, the treaty affords an effective answer to the claim by the well-known rule that the expression of certain rights and obligations in an agreement implies the exclusion of all others with relation to the same subject. The high point of Harmon's discussion, and the one which was later to embarrass the United States, was his mention of absolute sovereignty within a state as set forth by Chief Justice Marshall :14 11 Ibid., pp. 9, 10. 120ps. Atty. Gen., XXI, 274; S. Doc. , 57 Cong., 2 sess., XIII (4428), No. 154. This pronouncement was to embarrass the United States on more than one occasion: It was to be the strongest point of argument on the part of the Rio Grande Dam and Irrigation Company in its contentions for the right to construct its projected dam at Engle, New Mexico; it was to cause the reservation made by the United States in the equitable distribution treaty of 1906 to the effect that the concession there made would establish no precedent; and it was to confront the United States when Mexico asserted the doctrine that it was not accountable in its uses of the San Juan and the Salado at the present time. Harmon's opinion did not terminate the investigations, but it did contribute the tone of the American outlook on the matter. t 3Qps. A tty. Gen., XXI, 278. 14Schooner Exchange v. McFaddon (1812), 7 Cranch 136. Boundary Commission, United States and Mexico The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction. All exceptions, therefore, to the full and complete power of a nation within its own territories, must be traced up to the consent of the nation itself. They can flow from no other legitimate source. Harmon concluded :15 The case presented is a novel one. Whether the circumstances make it possible or proper to take any action from considerations of comity is a question which does not pertain to this Department; but that question should be decided as one of policy only, because, in my opinion, the rules, principles, and precedents of international law impose no liability or obligation upon the United States. On May 13, 1896, the Secretary of State sent to Colonel Anson Mills, the American member of the International Boundary Commission, instructions to examine and report on equitable distribution in coopera­tion with the Mexican commissioner.1 Mills by this time had been con­ ·i verted to the idea of an international dam at El Paso. The Commission met on August 17, 1896,11 and decided to examine three topics. First, there was to be determined the amount of water taken from the Rio Grande by irrigation canals in the United States. For this purpose an engineer, W. W. Follett, later to become consulting engineer for the American Section, was sent into Colorado and New Mexico to investi­ gate. He was also to seek information on the second question before the Commission, namely, whether the flow of the river had been appre­ ciably decreased by these upstream divisions. His findings were that the records on stream flow were not complete before the increased use of the water, but that the grants allowed since 1880 had obviously reduced the flow of the river. His most significant conclusion, however, was that there was not sufficient water in the river to serve projected reservoirs at both Elephant Butte and El Paso.1 8 The third problem which the Commission assigned to itself was the determination of the best and most feasible mode, whether through a dam to be constructed across the Rio Grande near El Paso, or other­ wise, for regulating the river to the best advantage of citizens of both countries. The scheme of an international dam in the gorge above El Paso was so attractive that the Engle site was not then adequately con­ sidered. The engineers carefully examined the gorge and made sound­ ings for bed rock, and the Commission communicated with the officials 1sops. Atty. Gen., XXI, 283. 160lney to Mills, May 13, 1896, Proceedings, II, 277. 17Joint Journal, Aug. 17, 1896, ibid., pp. 278-279. lBReport by W. W. Follett, Nov. 7, 1897, ibid., pp. 284-300. The University of Texas Publication of the railroads that had roadbeds in the territory to be submerged,19 in order to obtain estimates on the cost of removing them. These fig­ures were submitted by the two railroads,20 and the Commission esti­mated on November 25, 1896, that the total cost of the international dam project at El Paso would be $2,317,113.36.21 A provision was included in the plan whereby about ninety-eight acres of land would be ceded to Mexico so as to give her jurisdiction over one end of the dam and make it truly international.22 Mills expressed doubt as to whether the United States had injured Mexicans to the extent of the amount necessary to build the international dam, and he was at first inclined to insist that Mexico share in the expense, but the adamantine position of the Mexican commissioner on this point caused Mills to recommend the construction of the dam entirely at the cost of the United States.23 It should be noted particularly that the Commission centered its atten­tion entirely on the El Paso dam scheme, and, by the slightest refer­ence, ruled out the feasibility of the Elephant Butte project so far as satisfying the Mexican claims was concerned. Following the submission of this report there began the long contro­versy between the United States Government and the Rio Grande Dam and Irrigation Company. The Rio Grande Irrigation and Land Company, Limited, was formed in England in 1893. The Rio Grande Dam and Irrigation Company, a subsidiary of the British concern, acquired under the laws of the Federal Government and of the Territory of New Mexico the right of constructing a dam at Engle, New Mexico, which privilege was leased to the English company.24 It was obvious to all concerned that there was not sufficient water in the river to serve two large dams. The British company wrote to the Secretary of the Interior on April 10, 1896, that its dam would soon be completed and that in return for a subsidy it would cooperate with the government fully in its effort to meet its treaty obligations to Mexico,25 but the enthusiasm of the advo­cates of the international reservoir evidently led them to overlook this proposal. The interested Mexicans and the El Pasoans alike protested against the Elephant Butte Dam.26 The futility of the Mexican contentions 1°Joint Report, Nov. 24, 1896, ibid., pp. 282-283; Commissioners to President of the Atchison, Topeka and Santa Fe Railway Company, Sept. 8, 1896, ibid., p. 279; Com­missioners to President of the Southern Pacific Railway Company, Sept. 8, 1896, ibid. 20Ripley to Mills, Nov. 16, 1896, Proceedings, II, 282; Kruttschnitt to Mills, Nov. 17, 1896, ibid. 21 J oint Journal, Nov. 25, 1896, ibid., pp. 280, 281; for engineers' figures see Joint Report, Nov. 24, 1896, ibid., pp. 282-283. 22lbid. See also Mills to Olney, Nov. 25, 1896, ibid., pp. 277, 278. This point was objected to time and again by the opponents of the international dam scheme in the years which immediately followed. 23lbid. 24fbid., pp. 338-339. 2" Allison to Smith, April 10, 1896, ibid., pp. 340-341. 26Horcasitas to Secretary of Foreign Relations, June 22, 1896, ibid., p. 337. Boundary Commission, United States and Mexico of navigability was apparent,21 but the government could not dispose of the Mexican claims by pointing out the untenable foundation upon which they were based, as Attorney General Harmon had done. The Secretary of State inquired of the Secretary of the Interior on November 30, 1896, if it would be possible to revoke the former incum­bent's approval of the map filed by the Rio Grande Dam and Irrigation Company, and the Secretary of the Interior responded that he could assume no such authority.28 Shortly thereafter the Attorney General of the United States, despite the recorded pronouncements of his predecessor, Harmon, obtained a temporary injunction against the company in a district court of New Mexico. The case was prosecuted through the com­bined efforts of the departments of Interior, State, Justice, and War, and was decided for the company each time in the lower court, but the United States Supreme Court reversed and remanded each judgment. The main ground for reversal by the Supreme Court was the unproved point of navigability. The case was in the Supreme Court three times, and the holdings of the New Mexico courts were not affirmed until it was declared, in 1906, that the company forfeited its claim by failure to comply with procedural law. The Supreme Court in reviewing this holding in 1909 sealed the doom of the Rio Grande Dam and Irrigation Company.20 In 1923 the British Government on behalf of the company filed claims against the United States because it had unjustly deprived British stockholders of returns on their investments. The American and British Claims Arbitration Tribunal dismissed the claims.30 21Beaton to Fergusson, June 17, 1897, S. Doc., 57 Cong., 2 sess., XIII (4428), No. 154, p. 18. Beaton pointed out that Mexico, in contending for the navigability fiction, had overlooked the existence of the hundred-year-old Mexican diversion dam at El Paso. "In view of this fact," said Beaton, "navigation would appear to be fit only for turnpike sailors." 28Francis to Olney, Dec. 19, 1896, ibid., p. 19. 29The ramifications of the arguments and contentions of the parties to this con­ troversy extend beyond the scope of this study. For court pronouncements, see United States v. Rio Grande Dam and Irrigation Company (1898), 9 New Mex. 292, reversed in United States v. Rio Grande Dam and Irrigation Company (1899), 174 U.S. 690, and remanded to the lower courts on the question of navigability; United States v. Rio Grande Dam and Irrigation Company (1900), 10 New Mex. 617, reversed in United States v. Rio Grande Dam and Irrigation Company (1902), 184 U.S. 416; United States v. Rio Grande Dam and Irrigation Company (1906), 13 New Mex. 386, affirmed in Rio Grande Dam and Irrigation Company v. United States (1909), 215 U.S. 266. For documents dealing with the controversy, see Proceedings, II, 337­ 400; S. Doc., 55 Cong., 2 sess., XXI (3610), No. 229; H. R ep., 55 Cong., 2 sess., VII (3719), No. 598; S . Doc., 56 Cong., 2 sess., V (4033), No. 104; S. Doc., 57 Cong., 2 sess., XIII (4428), No. 154. Unquestionably the government reversed its position regarding all the questions affecting the company. It is significant that the government felt its obligation to Mexico sufficiently to proceed against rights vested as soundly as were those of the company. soA. J., XIX, 206--214 (Jan., 1925). The University of Te:rns Publication With the failure of the case of the company, the International Bound­ary Commission had no further official connection with the plans regard­ing the settlement with Mexico. It was readily seen, once the company was disposed of, that a dam at Elephant Butte would not only furnish the required water to the El Paso-Ju{irez Valley, but that it would also permit the originally intended development in New Mexico. Early in 1905 Congress turned its attention to the proposal for the construction of a dam and reservoir in New Mexico. A decision was reached to Elephant Butte Dam: Spillway and Power Plant (Photographs by the author : September, 1932) Boundary Commission, United States and Mexico authorize the Secretary of the Interior to ascertain the amount of land formerly irrigated in Mexico, and to direct the Secretary of State to negotiate a treaty, by which a certain amount of water would be allowed in return for the abandonment of Mexican claims. Investigations revealed that lands irrigated in Mexico would take only about one-eighth of the water thus conserved and would at the same time enable the Depart­ment of State to dispose of troublesome claims.31 A law was enacted on February 25, 1905, providing that if after investigation the project should prove feasible, the Secretary of Interior might proceed with the work of constructing the dam.32 When research by the Department of the Interior disclosed that as much water for the El Paso Valley could be provided by this dam as by the proposed international dam at El Paso,33 work was begun on the Engle project. Thus by 1906 a definite arrangement could be made with Mexico and this was done in the equitable distribution Treaty of May 21, 1906.3• Article I of the convention stipulates that upon the completion of the Engle Dam, the United States would deliver to Mexico 60,000 acre-feet of water annually. Article II contains the schedule of monthly deliv­eries of this water, and Article III provides that the delivery should be made without cost to Mexico. In Article IV Mexico waived all claims for . damages, past or future, in this section of the river, and in Article V the United States entered its disclaimer that this treaty should be considered as the acknowledgment of any principle of its accountability or as the establishment of a precedent with regard to the diversion of waters from the Rio Grande. It will be instructive to note, as the story progresses, the varying interpretations that have been placed upon this reservation by the two governments with regard to the present prob­lems on both the Rio Grande and the Colorado River. Work on the dam advanced slowly, and it was necessary for Congress to appropriate more funds than had been estimated.35 The dam was completed and put into operation in 1915.36 The arrangement as pro­vided by the Treaty of 1906 has with certain exceptions proved satis­ a1H. Rep., 58 Cong., 3 sess., III (4762), No. 3990; H. Rep., 58 Cong., 3 sess., II (4756), No. 3915. a233 Stat. pt. 1, 814. aan. Doc., 58 Cong., 3 sess., XCVIII (4877), No. 463, p. 77. a434 Stat. pt. 3, 2953; App. VI. For negotiations leading up to the treaty, covering the years 1904 and 1905, see Report of the Arnerican Section, pp. 386-419. For an excellent statement of the Mexican position in the matters leading to the treaty, see Dictamenes sobre el Abuso de las Aguas de Los Rios Bravo, Colorado y 81tS Afiuentes, Mexico, D.F.: Oficina Tip. de la Secretaria de Fomento, 1892, pp. 3-104. asAct of March 4, 1907, 34 Stat. pt. 1, 1357. See also Act of Feb. 14, 1911, 36 Stat pt. 1, 930, 931, for an act extending the power of the Secretary of Interior to lease power rights on Engle Dam for fifty years instead of the customary statutory ten years. aeH. Doc., 63 Cong., 2 sess., XXV (6622), No. 1144, pt. 5. The University of Texas Publication factory.37 Cases have arisen on that part of the river between El Paso and Fort Quitman involving Mexican diversions of water below the intake of the Acequia Madre (main canal) and have been brought before the Boundary Commission. In a discussion by the Commission involv­ing the proposed settlement of the Chamizal question in 1918, the asser­tion was made that Mexicans were taking water below the dam in spite of the Treaty of 1906, and Commissioner Hill suggested, as a concession to Mexico, that this practice be regularized by treaty.38 Again, Mexicans petitioned the Commission in 1928 for permission to divert below the Acequia Madre, and the diversion was allowed for the current season.39 In the summer of 1934, Mexican irrigators again demanded more water and threatened to destroy American diversion dams, if necessary.•0 The Mexican Section of the International Water Commission in 1930 had indicated that an additional 50,000 acre-feet "might well be used" in the section between Fort Quitman and El Paso.•t Observation, as well as information supplied by those in a position to know the facts, warrants the statement that as late as the summer of 1939 there were twelve or fourteen "illegal" diversions on the Mexican side of the El Paso-Juarez Valley below the Acequia Madre. Some are effected by pump and at least two by gravity through concrete gates. One diesel engine was pumping onto Cordova Island. Theee diversions are possible by reason of occasional flood flows and also because Frank­lin Canal, the main American canal, is not adequate to carry the whole flow. For this reason the channel of the river is used by the El Paso County district to carry some water down to Riverside Heading, where virtually the entire normal flow of the river runs into the Ameri­can canal. Curiously enough, some of the grade control structures made necessary by the rectification works assist diversion on both sides. To this extent the United States is inadvertently aiding Mexico to secure water to which it is probably not entitled. These additional Mexican works plus Acequia Madre could divert about 200,000 acre-feet per year. Probably the actual diversion by Mexico 37 Act of March 3, 1915, 38 Stat. 822, 860, for the maintenance appropriation for the project. It should perhaps be stated that the opinion is expressed in Juarez that 60,000 acre-feet is not enough for existing Mexican uses. •BMinute of April 27, 1918 (MS). "!•Minute No. 101, Feb. 27, 1928 (MS). This matter involved the petition of users of the Mexican canal to redivert as much water as was returned from the Acequia Madre into the Rio Grande. Itwas observed on the ground, however, that the Mexicans were diverting from this section of the river from permanent intakes. It is the Mexican understanding that if this use is questioned the Mexican argument in reply will be that the Treaty of 1906 provided only for the delivery of water from above the intake, and that whatever water is found in the river where it constitutes the international boundary is international water and subject to use by either state. A careful perusal of Article IV of the treaty, however, leads to the conclusion that this argument would not hold. •oSan Antonio Express, Aug. 1, 1934. 41 Report of the American Section, p. 26. Boundary Commission, United States and M e.rico 187 totals approximately 120,000 acre-feet, i.e., twice the amount allowed by the treaty. This situation could be solved by the construction of works on the north side so as to avoid the use of the river channel below Acequia Madre in the EI Paso-Juarez Valley except in time of flood. Another method might be for the United States to count the "illegal" diversion as part of the 60,000 acre-feet allowed by the treaty, thus reducing by the amount of such diversion the quantity deiivered to the Acequia Madre. An important attack upon this problem has been made by the Rio Grande Canalization Project. It was developed by the United States in order to provide for the control and canalization of the Rio Grande from the Caballo Dam in New Mexico to a point near EI Paso, Texas, and for the adequate control and measurement at the diversion point of the amounts of water delivered to Mexico under the provisions of the T'reaty of 1906. As has been stated, the terms of the Treaty of 1906 between the United States and Mexico provide for the delivery to Mexico of a total of 60,000 acre-feet of water annually in the bed of the Rio Grande at the h~ad of the Acequia Madre, known as the Old Mexican Canal, near EI Paso, Texas. At this delivery point is situated the International (Mexican) International (Mexican) Dam, El Paso-Juarez Photograph by the author: September, J932) Dam, a low dam of rock-masonry construction built many years ago, and by which waters are delivered into the Acequia Madre and until 1938 were diverted also into the Franklin Canal on the American side. The University of Texas Publication The treaty stipulated that the United States would pay the cost of storing, measuring, and delivering the water but made no adequate pro­vision for facilities for controlling and measuring the water at the place of delivery. The water supply for the American lands of the Rincon, Mesilla, and El Paso valleys and for deliveries to Mexico under the treaty is stored in the Elephant Butte and Caballo reservoirs, located about 135 and 110 river miles, respectively, upstream from the point near El Paso where the Rio Grande becomes the international boundary line. The plan for Rio Grande canalization resulted from an engineering investigation authorized by Congress and performed in 1935 under the supervision of the American commissioner, International Boundary Commission, United States and Mexico. Construction was authorized by Congress in 1935 (49 Stat. 961) and 1936 (49 Stat. 463). The project comprises two principal features, namely, the American Dam and Canal and the Channel Canalization, the second of which will be discussed under flood control measures. This work is under the supervision of the United States Section, International Boundary Commission, United States and Mexico. T'he American Dam and Canal consists of a diversion dam located entirely within the United States at a point two miles upstream from the International (Mexican) Dam, and a feeder canal extending from the American Dam to the Franklin Canal of the El Paso Valley. The construction of this feature was begun early in 1937 and was completed and placed in operation in June, 1938. Drainage Canal near El Paso (Photograph by the author: September, 1932) Boundary Commission, United States and Me.rico Irrigation water for American lands of the EI Paso Valley is diYerted through the canal, and the treaty allotment of water to Mexico for the Juarez Valley is delivered, through one or more radial gates of the American Dam, into the channel of the Rio Grande whence, at the Inter­national Dam located two miles downstream, it is deflected into the Acequia Madre. Covered Section of Irrigation Canal Showing construction work on underground conduit for upper portion of canal from new All-American Diversion Dam aboYe El Paso ( Photogra1-h by the author: September, 1937) However, complete control by the United States of the Rio Grande water between El Paso and Fort Quitman is not possible under existing conditions, since at several points below the Franklin Canal heading certain water is returned to the river channel; at the Riverside Canal heading 12 miles below El Paso, the entire normal flow in the river channel is diverted for irrigation of lands in Texas, and at various points below the Riverside Canal heading certain quantities of water consisting of drainage and irrigation return flow enter the channel of the Rio Grande. It is thus apparent that serious difficulties face the United States in its attempt to secure such control of the water in the river channel between the American Dam and Fort Quitman as would provide adequate water for the Texas lands and assure complete observ­ance of the treaty provisions. Yet the degree of control afforded the United States by the American Dam and Canal feature easily justifies the investment. The University of Texas Publication 3. EARLY EFFORTS TO SECURE AN AGREEMENT REGARDING THE COLORADO The efforts on the part of the two governments to find a solution to the problems of equitable apportionment on the Rio Grande and the Colorado have led from time to time to the creation of joint commis­sions to consider them. There are distinct lines of activity on each river, however, and they will be considered separately from the beginning of the last decade, at which time the matter on both rivers took on a new aspect. The Colorado River rises in Wyoming and Colorado and flows some 1,400 miles to empty into the Gulf of California. The drainage area of the basin covers about 244,000 square miles, of which only 2,000 square miles are in Mexico. The river traverses about a hundred miles of deltaic land in Mexico. Practically its whole water supply is derived from the United States.42 It was not until 1906 that definite action was taken by the United States and Mexico to reach a settlement on the Colorado. However, Mexico had earlier protested several times about irrigation works on this river. In 1898 Minister Romero"3 notified the Department of State ... that the Arizona Improvement Company is about to complete on the left· shore of the Colorado River, south of Yuma, the setting up of two powerful centrifugal pumps, capable of pumping up a continuous column of water for supplying a canal for irrigation. For this reason the Mexican Government instructs me to request you to warn the said company not to let the works it is conducting for the purpose of drawing water from the Colorado River hinder or interrupt the free navigation of that portion of said river.... Again, in 1901, Secretary of State John Hay was reminded by Minister de Asp:iroz that works were being constructed to divert Colorado waters and transport them to the southern part of the State of California. The Mexican Minister expressed the fear that these works might change the course or exhaust the water supply of the river. The fear of Mexico that the channel might be changed was realized in 1905 when the Colo­rado River broke through its banks below the boundary line and flowed into the Salton Basin. Two problems were thus raised: one, flood con­trol; and two, equitable apportionment of water. In order to under­stand the avulsion of 1905, a brief summary of the events leading up to the change must be given. In 1892 the Colorado River Irrigation Company was organized but failed shortly thereafter. Its property was purchased by C. R. Rock­wood, an engineer, and his friends, who organized in 1893 the California Development Company under the laws of New Jersey. The following year Guillermo Andrade, owner of 400,000 acres below the boundary line, gave the company an option on 100,000 acres of land embracing the 4 2Report of the American Section, p. 17. Also see map p. 191. 43Romero to Sherman, Report of the Arnerican Section, p. 259. Boundary Commission, United States and Mexico UNITED STATES DEPARTMENT OF THE INTERIOR BUREAU OF RECLAMATION COLORADO RIVER BASIN MAP NO. 26380 SCALE OF lllLES •• 0 100 .. 1937 EXPLANATION -Irrigated Area U. S. ProJect -Diversion from Basin NEV. 0 i JE ][ c 192 The University of Texas Publica,tion channel of the Alamo River. This option expired. However, in 1898, the California Development Company purchased the land from Andrade. Inasmuch as Mexican laws did not permit foreigners to buy land on the border, a subsidiary Mexican company, La Sociedad de Irrigaci6n y Terrenos de la Baja California, was formed and technically held title to the Mexican lands purchased by the California company. The directors of the Mexican corporation were American citizens. A George Chaffee was, in return for absolute control of the company, to furnish the money to buy land near the point of diversion, just north of the boundary, on which to build canals through Mexico to California and to make a dis­tribution system in the latter State. He built a temporary canal and in 1901 was dismissed.44 To attract .additional settlers the company spent money on advertising which might better have been used on permanent structures.45 Troubles soon appeared. The canal system became clogged with silt and, in 1903, there was a shortage of water. The heading at Hanlon was insufficient to handle the demand. So, in 1904, a second intake was made in Mexico, just below the boundary line. Within a short time this intake also became silted up. Another intake was cut in June, 1904, about four miles south of the second. The fall floods came and washed away the opening of the third intake, and the river swept down to Imperial Valley into the Salton Sea. For over a year the Colo­rado followed its new channel. The Southern Pacific Railroad and the United States Government came to the aid of the California Develop­ment Company and restored the river to its regular channel.46 The works were finally constructed by the Department of Interior, with the per­mission of Mexico, by means of extensive protective structures on Mexi­can territory. The construction was supervised by J. A. Ockerson and Mexican Boundary Commissioner Puga. Early interest in the Colorado River related to the navigability of the stream,47 and, although all early reports show that the river could not 44S. Doc., 59 Cong., 2 se:ss., IV (5071), No. 212, pp. 30-32. 45fbid., pp. 2-3. 46lbid., pp. 33-34. The Southern Pacific obtained control of the company at this time; from 1910 to 1916 this property was in the hands of a receiver; in 1916 the Imperial Irrigation District bought out the Southern Pacific's interest. For docu­ments relating to the overflow see: H. Doc., 61 Cong., 2 sess., CXXXIII (5836), No. 972; H. Doc., 62 Cong., 2 sess., CXXXIX (6321), No. 504; H. Doc., 63 Cong., 3 sess., CIII (6888), No. 1476; H. Doc., 64 Cong., 1 sess., CXLIV (7098), No. 586; For. R els., 1911, pp. 525-565; ibid., 1913, pp. 977-993. For general treatises in docu­ments, see : S. Doc. , 60 Cong., 1 sess., VIII (5241), No. 246; S. Doc., 65 Cong., 1 sess., XI (7265), No. 103; S . Doc., 67 Cong., 2 sess., XI (7977), No. 142. This problem gave way, in priority of interest, only to the discussion of an All­American canal, which in turn yielded to interest in the Colorado River Compact and Boulder Dam. It is easily seen, then, that the distribution of water between the two countries has been handicapped, at least from the standpoint of the United States, by other matters of greater popular interest. 4 1Ex. Doc., 36 Cong., 1 sess., XIV (1058), No. 90; H. Ex. Doc., 51 Cong., 2 sess., XXV (2855), No. 18; H. Doc.., 54 Cong., 1 sess., XLVII (3414), No. 101; H. Doc., Boundary Commission, United States and Me.tico feasibly be improved for navigation purposes, it is nevertheless safe to say that, prior to the extensive irrigation activities in its valley, the river was somewhat more serviceable for such use than was the Rio Grande. Captain Edgar Jadwin reported as early as 1903 that irriga­tion had been undertaken by two companies, but that48 . . . these companies have not as yet taken out sufficient water to materially interfere with navigation. Fortunately the period of the year when the land requires the greatest amount of irrigation coincides with the time of higher water on the river.... That the country was being awakened to the possibilities of irrigation in the Colorado Valley is evidenced by the congressional resolution of April 28, 1904, directing the Secretary of the Interior to investigate the potential capacity of the river in California and Arizona. The report of the Geological Survey in response to this resolution lent momentum to this interest by showing that the total area irrigated at that time was almost insignificant compared with the possibilities.40 In view of Jadwin's report, the War Department held the Colorado River to be a navigable stream; and in 1903, upon formal application made to it for permission to divert the waters of the Colorado River, the department stated that it was not authorized to approve works already completed, but that the operations would not be interfered with so long as navigation was not affected.50 A bill was introduced in Con­gress in 1904 to declare that the waters of the Colorado were more val­uable for irrigation than for navigation, but it failed to pass.51 It was then that a Mexican corporation, La Sociedad de Irrigaci6n y Terrenos de la Baja California (Sociedad An6nima), the capital stock of which was held by the California Development Company, which was chartered in the United States, obtained from Mexico a concession to divert from the Colorado River, at the boundary or below, 10,000 second-feet of water to be delivered to the American company at the boundary line leading into Imperial Valley, provided that one-half of the water so diverted would be subject to use in Mexico.52 r,4 Cong., 2 sess., XXIX (3505), No. 118; H. Doc., 56 Cong., 2 sess., LX (4134), No. 67; H. Doc., 58 Cong., 2 sess., XLVI (4672), No. 204. •B/bid., p. 4. This report indicated that commerce on the river was much less below Yuma than above it, and that the river was used much more extensively for naviga­tion before the completion of the great railroad systems through the territory, when it was used for bringing in supplies from the outside. Jadwin recommended that it was not advisable to improve the river purely for navigation purposes, even to the extent of building locks around the darns built for irrigation purposes. See also ibid., No. 237, again stressing the lack of importance of the navigation phase. 4"33 Stat. p. 1, 591; H. Doc., 58 Cong., 3 sess., LI (4830), No. 204. 00S. Doc., 60 Cong., 1 sess., VIII (5241), No. 246, p. 12. 5 1/bid., p. 13. 528. Doc., 65 Cong., 1 sess., XI (7265), No. 103, pp. 15-17. It is seen from this state of affairs that the waters from the Colorado which serve the Imperial Valley must first be led through Mexican territory, and it is this disadvantage which led The University of Texas Publication The Salton Sink overflow invited attention to the situation on the Lower Colorado. The Director of the United States Geological Survey estimated in 1907 that the average annual flow of the Colorado River was approximately 11,000,000 acre-feet, and that with proper storage facilities this could be made available. It was his opinion that 8,000,000 acre-feet would be all the water that could be used by gravity irrigation in the United States, and that the remainder could be left for Mexico."3 The Department of State communicated to Mexico on January 29, 1908, its opinion that the concession to the Mexican irrigation company was excessive and suggested that a commission be formed to investigate and report on the matter of an agreement on the division of the flow of the Colorado, the commission's decision to be informatory and not binding on the two governments. Mexico agreed, and by May 8, 1908, there was established the Commission to Study the Questions in Connection with the Distribution of Colorado River Waters, with Mr. Louis C. Hill serving for the United States and Sr. Beltran y Puga, then a member of the International Boundary Commission, for Mexico.''4 The work of this commission was later combined with that of a similar commission for the Lower Rio Grande, and in 1910 these two were joined with the International Boundary Commission."; Hill resigned as commissioner in 1910, and in a letter to his successor indicated that he and Puga had agreed that the most equitable solution of the Colorado question would be the construction of reservoirs at joint expense on a pro rata basis as to the acreage served."r. Subsequent events were to prove, however, that this agreement would not be made operative. It was suggested by the Secretary of the Interior in 1910, in his com­munication of the engineer's report on the protective works for Imperial Valley, concerning which an agreement with Mexico was being sought, that it would be best to eliminate from the negotiations with Mexico any matters regarding the right to the waters of the river, on the ground that this would cause too great delay; the matter was accord­ingly ignored in these arrangements.'·,. That the special commission on later to the extensive arguments for the "All-American" canal, now under construc­ tion. The Mexican corporation had a concession to divert nearly three times the amount of water that the river carried at an extreme low stage; yet, in later negotia­ tions, Mexico adhered to the fiction of navigability. A second-foot means one cubic foot of water flowing past a given point per second; i.e., 10,000 second-feet would cover about one-fourth acre one foot deep each second. ""Walcott to Roosevelt, Jan. 10, 1907, For. Rels., 1911, pp. 534-535. " 1 Root to Thompson, No. 397, Jan. 29, 1908, ibid., pp. 535-536; Mariscal to Thomp­son, March 31, 1908, ibid., pp. 538-539; Bacon to Thompson, No. 479, April 25, 1908, ibid., p. 539; Thompson to Root, No. 1054, May 8, 1908, ibid., p. 540. 5'•Huntington Wilson to Keblinger, May 9, 1910, M. B., Env. 27. 5 r.L. C. Hill to Keblinger, July 28, 1910, ibid. Keblinger was at this time secretary to the International Boundary Commission. See Official Register of the United States, 1911, I, 35. "'Ballinger to Knox, Oct. 17, 1910, For. Rels., 1911, p. 544; Adee to H. L. Wilson, No. 127, Oct. 26, 1910, ibid., pp. 542-543. Boundary Commission, United States and Mexico equitable use of the waters of the Colorado had become inactive by 1911 is evidenced by the fact that a conference of the engineers who had participated in the remedial works on the Colorado, held under the direction of the Bureau of Reclamation, recognized the importance of the problem of apportionment of waters and the fact that irrigation should be considered paramount to navigation, and suggested58 ... the early creation of an international Colorado River Commission, embracing in its membership both American and Mexican engineers, invested with large powers and ample authority to examine into and to submit a basis for the adjustment of all questions relating to the conservation, use, and control of the waters of the Colorado River, with a view to such governmental action as shall result in a complete, just, and final settlement of all such matters at issue between the two nations. This recommendation was communicated to the Secretary of State by the Secretary of the Interior on February 10, 1912,59 and when informed that a commission already existed, the Secretary of the Interior advised the creation of an entirely new and more powerful commission. N ego­tiations were undertaken with this end in view, and, indeed, they pro­gressed so far that drafts and counterdrafts of conventions on equitable distribution were exchanged; but these negotiations were brought to an unsuccessful close on May 8, 1913, when General Huerta refused to con­sider the Colorado River question further until such time as his admin­istration should be recognized by the United States.60 It should not be overlooked, however, that the old commission, now connected, in per­sonnel at least, with the International Boundary Commission, continued to exist.61 The commission did not succeed in solving the distribution problems, for it was discontinued shortly after 1915,62 and no agree­ment was reached between the two states. The question involved was, however, not one to be ignored. The acreage of lands under irrigation increased. For example, on the canal leading into Imperial Valley it was estimated that the acreage irrigated in the United States from 1918 to 1925 ranged from 400,000 to 415,000 acres per year, while in Mexico for the same period the acreage increased from 118,530 to 217,000.°'3 5BH. Doc., 62 Cong., 2 sess., CXXXIX (6321), No. 504, p. 161. 59Fisher to Knox, Feb. 10, 1912, For. Rels., 1913, pp. 981-983. 60Huntington Wilson to Fisher, Feb. 19, 1912, ibid., pp. 983-984; Fisher to Knox, March 18, 1912, ibid., pp. 984-985; Lascurain to H. L. Wilson, April 13, 1912, ibid., p. 986; Huntington Wilson to H. L. Wilson, No. 974, Sept. 10, 1912, ibid., p. 991; note, ibid., p. 993. 61 0/ficial Register of the United States, 1915, p. 40. Keblinger was still on this Commission in 1913, and in 1915 John W. Gaines had succeeded him. Puga served throughout for Mexico. 62No reference is made to the International Water Commission in the Official Uegister of the United States, 1917. 63H. Rep., 69 Cong., 2 sess., I (8688), No. 1657, pt. 1, p. 15. The University of Texas Publication 4. EARLY EFFORTS TO SECURE AN AGREEMENT ON THE LOWER RIO GRANDE The problem of equitable distribution on the Lower Rio Grande did not, until quite recent times, assume the urgency that has characterized the Colorado River situation. The Rio Grande rises in Colorado and flows down through central New Mexico to El Paso, from which point it serves as the boundary between the United States and Mexico for 1,200 miles. As was shown above,6 ' the question regarding the Upper Rio Grande was solved by the treaty arrangement of 1906; but for the approximately 1,120 miles from Fort Quitman to the Gulf of Mexico there is as yet no understanding between the two countries. This stretch of river, particularly in the lower reaches. has great possibilities with regard to irrigation.60 Intensive development in this region began shortly after the St. Louis, Brownsville and Mexican Railroad was built to Brownsville in 1904,66 and has since continued. The Secretary of State was petitioned as early as 1902 to negotiate a treaty with Mexico regarding the utilization and distribution of the waters of the Rio Grande from Devil's River to the Gulf.';' This sug­gestion was referred to Commissioner Mills of the International Bound­ary Commission, who recommended that the feasibility of a dam site some­where near Eagle Pass, Texas, be investigated.6~ This proposal evidently bore no fruit. It seems that the government's efforts relating to the Rio Grande in the earlier days were devoted exclusively to the comple­tion of the negotiations on the El Paso-Juarez Valley problem. A Rio Grande Commission was established in 1909 for the study of the ques­tion,69 and was composed of Messrs. Hill and Puga, the same officials who were at that time representing their respective governments on the Commission on the Distribution of Colorado River Waters.'° The members of this commission were even less successful in agreeing on the division of the water of the Rio Grande than they were on that of the Colorado, because Sr. Puga was adamant on the point "that Mexico should have all the water she needs before the United States gets one drop."" The body remained in existence, however, although much of its activity was spent in endeavors other than the study of water appor­ s1see sec. 2, above. 6'For a description of the river, see Report of the American Section, pp. 23-25. See also Ch. I, sec. 1. G6Hearings on H. R. 8371, pp. 20ff. 67J. C. Nicholson to Hay, March 5, 1902, M. B., Env. 40. G8 Mills to Hay, March 14, 1902, ibid. 690fficial Register of the United States, 1909, I, 26. Mr. Hill, the American member of this Commission, was to receive no compensation. 70See above, n. 54. 71Hill to Keblinger, July 28, 1910, M. B.1 Env. 27. Boundary Commission, United States and Mexico tionment.12 It is noteworthy that the statute making the appropriation for the International Boundary Commission in 1914 provided that two­thirds of the amount granted should be made immediately available for the resumption of the work relating to the division of water under the direction of the Secretary of State, as authorized by and in pursuance of the protocol of May 6, 1896, between the United States and Mexico.73 That the matter was creating some interest is evidenced by the sugges­tion of Senator Sheppard, from T'exas, on February 17, 1915, that the then existing commission on equitable distribution be directed to deter­mine the most feasible means of fixing the bed, conserving the water, and equitably utilizing the river by the two countries." As a result of this recommendation, the next appropriation for the Boundary Com­mission likewise allotted a special portion of the funds to the matter of equitable distribution, and added the further stipulation that the Com­mission was to submit to Congress, on or before December 10, 1915, a plan for preserving the boundary by flood control and for impounding, regulating, and utilizing the waters of the Rio Grande.7° No material results came of this provision, however, and the Commission shortly thereafter ceased to function.76 The matter was abandoned officially until brought up in the congressional investigations of 1924,77 which resulted, in December of that year, in the establishment of a Commission on Equitable Use of Water of the Rio Grande below Fort Quitman.78 5. THE PROBLEM TO THE PRESENT With the coming of the third decade of the present century the prob­lem of equitable distribution took on a new aspect. Agricultural expan­sion on both the Rio Grande and the Colorado rapidly increased. Interest 72Gaines to Lansing, Nov. 5, 1915, ibid., Env. 56. Mr. Gaines, then a member of this Commission, disclosed here that his main interest was in flood control and not in division of water. 73Act of June 30, 1914, 38 Stat. pt. 1, 446. The protocol referred to is the agree­ment according to which the El Paso-Juarez Valley problem was presented to the International Boundary Commission for the submission of evidence relating thereto. See above, n. 16. Ten thousand dollars out of $15,000 appropriated was to go to equitable distribu­tion. 74S. Rep., 63 Cong., 3 sess., I (6762), No. 992. This resolution also authorized the Commission, under the direction of the Secretary of State, to "enter into such negotia­tions with a similar Commission representing the Mexican side of the Rio Grande," so as to make a satisfactory report. This was amended in the report cited to enable the employment of the engineers of the International Boundary Commission in making the survey. 75Act of March 4, 1915, 38 Stat. pt. 1, 1116, 1120. This statute allotted $8,000 out of $14,000 appropriated to the work of equitable distribution. No access was had by the writer to the report made in pursuance of this statute, assuming such report was submitted. 1asee above, n. 62. 11H. Rep., 68 Cong., 1 sess., III (8228), No. 666. 78Act of Dec. 5, 1924, 43 Stat. pt. 1, 672, 692. The University of Texas Publication in irrigation on the Colorado resulted in 1921 in the giving of advance congressional consent to a compact among the seven States of the Colo­rado basin for dividing the flow of the river among them.19 This was the initial step which led, after long dispute, to the passage of the Boulder Canyon Project Act of December 21, 1928, which carried with it federal approval of the Six-State Colorado River Compact.8'> This act made provision for possible Mexican claims as follows :81 Nothing in this act shall be construed as a denial of recognition of any rights, if any, in Mexico to the use of the waters of the Colorado River System. The irrigation problems on the Lower Rio Grande, although quite as vital, did not create as much discussion as did the Colorado. The Lower Rio Grande Valley Water Users' Association of McAllen, Texas, grew gradually more insistent in petitions to the Department of State that an adjustment should be reached between the United States and Mexico.82 Exhaustive hearings were held in 1924 before the Committee on Foreign Affairs of the House of Representatives as well as before the Senate Committee on Foreign Relations.83 The Secretary of State advised the House Committee on April 21 that, in his opinion, the International Boundary Commission could not, without additional treaty provisions, do the work of investigating the matter and proposing a solution,~·' and that a separate commission would have to be formed. Consequently, Congress, by the Act of May 13, 1924, authorized the appointment of three commissioners, who were to cooperate with Mexican representa­tives in a study of the equitable use of water of the Rio Grande below 79Act of Aug. 19, 1921, 42 Stat. pt. 1, 171-172. This movement was sponsored at first by the upper riparian States in an effort to prevent complete development of the lower irrigable regions of the river before the upper States had had the opportunity of obtaining their share of the waters of the river. See also R. L. Olson, The Colo­rado River Compact and Paul L. Kleinsorge, The Boulder Canyon Project. 8045 Stat. pt. 1, 1057. The Colorado River Compact divides the river into two "basins," the lower including Arizona, Nevada, and California, and the upper the other four States. Each basin is to have 7,500,000 acre-feet of water per year. The lower basin may increase its beneficial use 1,000,000 acre-feet per year. If the United States, as a matter of international comity, contracts to deliver water to Mexico, such water shall first be taken from the surplus over 16,000,000 acre-feet. If more is needed, then Arizona and California will contribute equally until the amount is complete. It seems from the way the Boulder Canyon Project Act is working out, and in view of the decision in Arizona v. California, that Arizona was made an unwilling subscriber to the compact. The reservoir at Boulder Canyon has & capacity of 29,406,000 acre-feet. Department of the Interior, Surface Water Srupply of the United States, 1938, Part IX, Colorado River Easin, Geological Survey Water­Supply Paper, 859, p. 22. s1 45 Stat. pt. 1, 1057, 1066. 82Hughes to Committee on Foreign Relations, April 21, 1924, H. Rep., 68 Cong., 1 sess., I (8228), No. 666. 83Hearings on H. R. 8371 ; H. Rep., 68 Cong., 1 sess., I (8228), No. 666. 84See above, n. 82. Boundary Commission, United States and Mexico 199 Fort Quitman.85 The Mexican member of the International Boundary Commission refused on July 8, 1924, to cooperate ;86 hence the commis­sion could not be organized. The matter was delayed until 1927, when the Secretary of State informed President Coolidge that inasmuch as Mexico would not agree to a study of the Rio Grande unless the Colo­rado River were also included, he suggested that the United States agree to this proposal.87 In accordance with this recommendation, the Act of 1924 was amended on March 3, 1927, so as to provide for a thorough investigation of the Rio Grande, the Colorado, and Tia Juana rivers by a joint commission.88 The impending completion of Boulder Dam, com­bined with the corollary features of great power development, water supply for cities, an All-American canal for irrigation in the Imperial Valley, and the increasing interest in irrigation in general, made it highly desirable on the part of Mexico that an agreement be reached 0 covering diversion from all three rivers.~The Commission was composed of three Americans: Dr. Elwood Mead, Director of the Bureau of Reclamation, chairman, General Lansing H. Beach, a retired army officer, and W. E. Anderson, a civil engineer; and three Mexicans: Gustavo P. Serrano, the Mexican member of the Inter­national Boundary Commission, Javier Sanchez Mejorada, a member of the National Irrigation Commission of Mexico, and Federico Ramos, general adviser of the Mexican Department of Foreign Relations."0 Three sessions, running from February 27, 1928, until November 9, 1929, were held, the first being in El Paso and Juarez, during which a per­sonal inspection of much of the water boundary was made; the second in Mexico City; and the third in Washington, D.C.9 1 It was decided at the first meeting that data must be gathered covering the stream flow on all three rivers, the area actually under irrigation, the quantities of diversions for all purposes, areas irrigable but not yet irrigated, stor­age and utilization possibilities for electrical, domestic, and other pur­poses, and flood protection works in the lower reaches of the two major rivers.0 2 It may be seen from this list of self-allotted tasks that not much would be left undone in the way of the collection of data. The Commission considered exhaustively all phases of the whole problem, ss43 Stat. pt. 1, 118; also Act of Dec. 5, 1924, ibid., pp. 672, 692. 80Minute No. 46, July 8, 1924 (MS). srKellogg to Coolidge, Feb. 2, 1927; Coolidge to Congress, same date, H. R ep., 69 Cong., 2 sess., II (8689), No. 1951; H. Dor.., 69 Cong., 2 sess., II (8735), No. 676. SBJoint Resolution, March 3, 1927, 44 Stat. pt. 2, 1403. It should b€ noted that although the Commission was established more than a year before the passage of the Boulder Canyon Project Act, yet, by the time the Commission was ready to draw its conclusions, the Boulder Canyon Act was more than two years old. The Boulder Canyon Act was passed on Dec. 21, 1928. B9S. Doc., 70 Cong., 2 sess. (8989), No. 186. 90Report of the American Section, p. 2. 91/bid., pp. 2-11. 92/bid., p. 3. The University of Texas Publication and although it made serious efforts to reach agreements that might serve as the bases of a treaty, its attempts were unavailing except in regard to minor points.93 It will perhaps be best, before discussing the matters of major interest and greatest diversity of opinion on the part of the Commis­sion, to consider briefly the situation existing in the areas covered by the investigation at the time of the Commission's activities. It was estimated that the "Magic Valley" of the Rio Grande, constituting the lower portion of the Lower Rio Grande Valley, had a population of some 200,000, that there were more than 350,000 acres under irrigation, and that property values were approximately $300,000,000.94 The drainage basin of the Rio Grande covers 177,500 square miles, slightly over half of which is in the United States, although the United States furnishes less than half of the water supply. In the whole river basin almost 1,700,000 acres were under irrigation, 1,400,000 acres being in the United States. Below Fort Quitman, 800,000 acres were under irrigation, 70 per cent being in Texas. Available records showed that Mexico sup­plied from the Conchos, the Salado, the San Juan, and lesser tributaries 70 per cent of the river yield below Fort Quitman, whereas Texas was using 70 per cent of the water devoted to irrigation. These figures obviously do not include the flow of the Rio Grande at Fort Quitman.95 It was believed that the maximum of safe development, in the absence of reservoirs, had been reached, and it was shown that by proper con­servation, approximately 1,600,000 acres of new land in the river basin could be irrigated.90 In the light of these figures, it is needless to state that the situation had become critical. This is further evidenced by the action in 1926 of the Texas Board of Water Engineers in adopting the administrative policy that no more permits for irrigation from the Rio Grande or its tributaries would be granted unless provision were made in each case for ample storage.91 As for the Colorado River Valley, it was estimated that property values in the lower section had reached the total of a half billion dollars.98 The basin of the Colorado covers about 244,000 square miles, of which only 2,000 are located in Mexico.99 The United States supplies 93Jbid., pp. 2-77. 9 4lbid., p. 52. 9 5Report of the American Section, pp. 316, 317, 336. See also Department of Com­ merce, Fifteenth Census of the United States: Irrigation of Agricultural Lands. It was estimated in 1924 that at that time the Conchos, Salado, and San Juan contributed some 52 per cent of the total run-off of the river, whereas the Rio· Grande and minor tributaries, exclusive of Devil's and Pecos rivers, contributed something over 31 per cent. It was noted by one of the early observers of the river that the Conchos and not the Rio Grande was the mother stream of the system. Figures quoted from "a lower Rio Grande farm paper," H. Rep., 68 Cong., 1 sess., III (8228), No. 666, p. 10. soRepor.t of the American Section, pp. 316-317. 91Jbid., p. 319. Apparently the requirement as to storage has been disregarded. 9BJbid., p. 52. ssJbid., p. 17. See map p. 191. Boundary Commission, United States and Mexico 201 the entire flow of the Colorado. Of the then irrigated area of 2,600,000 acres, only 190,000 were in Mexico, and it was estimated that, were sufficient water available, a total of 8,500,000 acres would be ultimately irrigable, less than 2,000,000 of which are in Mexico.100 It will be noted that the Rio Grande above EI Paso, as affected by the Treaty of 1906, presents problems similar to those that have arisen in respect of the Colorado. Even as compared with the Lower Rio Grande, however, the Colorado is of greater importance. The water resources of the basin of the Colorado were estimated at 20,000,000 acre-feet, whereas those of 1 the Rio Grande are only 7,700,000 acre-feet.1 " The question may be asked if this matter of relative economic importance, not to mention the greater political weight of the Colorado area, will play a part if and when the United States finds it necessary to make concessions to Mexico. As far as municipal matters are concerned, California has been largely victorious at most points.102 Mexican interests are, how­ever, sufficiently urgent in both sections to require a solution on each river as nearly equitable as possible. There is reason to believe that an arrangement of almost any sort is so earnestly desired by all concerned that local politics will, in the final analysis, play a minor part. It is worthwhile to repeat that the problem in the Colorado River basin had become, even before the investigations of the Commission, an interstate (in United States public law) as well as an international one. As for the Tia Juana, this little river, only seventeen miles long, flows from the coastal range near San Diego, California, across from Mexico into the United States and into the Pacific. It is primarily important as a source of water supply for San Diego and Tia Juana. The Com­mission agreed that any further reservoir construction would require international cooperation.103 In 1934 the T'ia Juana came before the International Boundary Commission because of sanitary conditions. As iooReport of the American Section, pp. 85ff. S. Doc., 70 Cong., 2 sess. (8989), No. 186, pp. 41ff. 101/bi.d., p. 38; Report of the American Section, pp. 93, 317. See also H. Doc., 70 Cong., 2 sess., LXVIII (9071), No. 636. One acre needs from two to three feet of water per year. Of the flow of the Colorado, 16,000,000 acre-feet have been allotted by the Colorado River Compact, this in exclusion of the water necessary to supply the Metropolitan Water District of Southern California. This leaves a narrow margin to satisfy the claims of Mexico. io2see above, n. 80. 103Report of the American Section, pp. 16, 17, 79-84. Since the Commission de­voted little attention to the Tia Juana, that stream may be dismissed from further consideration by noting that the Commission accepted the conclusions presented by the Mexican Section to the effect that further development, which might be international in character, would require a reservoir at Marron, and that San Diego might proceed with investigations of the feasibility of this project. Ibid., pp. 9, 10, 59. I11; 1938 the Boundary Commission again pointed out that an international agreement is necessary in order to build the Marron dam. Report of the Commissioner, 1938, p. 38. The Tia ,Juana is of intermittent flow. An instance is on record where the river flowed more water in two hours than it had in the sevenl consecutive years preceding. Report of the American Section, p. 1. 202 The University of Texas Publication a result of the survey and studies of the Commission, there was begun in July, 1937, six and a half miles of sanitary sewer lines from near San Ysidro, California, to the Pacific. The American section was com­pleted in March, 1938, at an approximate cost of $150,000 irnpplied from emergency funds. The Mexican portion of this project consisted of several miles of principal and auxiliary mains and a sanitation plant near the boundary line."" Commissioner Lawson reported in August, 1939, that the international sanitary works at San Diego were working satisfactorily .10" Perhaps a better presentation of the problems arising on the Colorado and the Rio Grande may be made if they are elaborated in the order in which they were considered by the Commission. It gave its first con­sideration to the treaty provisions applying to the Colorado. The Treaty of Guadalupe Hidalgo, 1848, provided for the boundary to cross and not to follow the Colorado,10n which thus did not become a boundary stream until the Gadsden Treaty was negotiated. The former treaty did, how­ever, proclaim the theory of navigability by giving United States citi­zens free passage through Mexico by way of the river and the Gulf of California.107 This provision was repeated in Article IV of the Treaty of 1853.108 However, the Convention of 1884 modified the navigation terms by restricting the common right to the "actually navigable main channels of the said rivers."109 Neither state could construct, without the consent of the other, any work that would impede the right of navigation.m As a matter of practice, neither state regards the river as navigable.111 Mexico, however, has refused to abandon the legal theory since it offers, presumably, a good diplomatic bargaining point.112 The Mexican view on this topic was sustained by the holding of the United States Supreme Court in the case of Arizona v. California, in 1 o•Report of the Commissioner, 1938, p. 189. 10''Interview, Aug. 30, 1939. lOGArt. V, 9 Stat. 922, 926-928; App. I. 107 Art. VI, 9 Stat. 922, 928; App. I. 108 10 Stat. 1031, 1034; App. II. Some authorities hold that the failure to secure from Mexico during these negotiations the whole territory surrounding the mouth of the Colorado was a blunder. See Carman; Mary Austin, "The Future of the South­west," New Republic, XLII, 186 (April 8, 1925). lO"Art. V, 24 Stat. 1011, 1013-1014; App. III. 110Art. VII, 9 Stat. 922, 928-929. Secretary of State Hughes seemed to believe that this article applied to the Colorado. Hughes to Hoover, Aug. 17, 1922., Report of the American Section, p. 261. 111see above, n. 49. Especially is this true since the construction of Laguna Dam, eleven miles above Yuma, which forms a positive obstruction to navigation. H. Doc., 63 Cong., 2 sess., XXV (6622), No. 1141. It is noteworthy, in view of the Mexican contentions of navigability, that the Mexican corporation operating below Yuma has a concession to divert nearly three times the amount of water that the river carries at an extreme low stage. S. Doc., 65 Cong., 1 sess., XI (7265), No. 103, pp. 15-17. This water is used by Americans and Mexicans alike, and the procedure is an accurate index to the value that each state puts on the navigation of the river. i12Report of the American Section, p. 40. Boundary Commission, United States and Mexico which, in order to justify the Federal Government in passing the Boulder Canyon Project Act, the Colorado River was held to be navigable. More­over, the law itself states that the works undertaken are for the improvement of navigation.m Thus persists the theory as established by the early treaties between the two states, even though there have long been advocates of its abandonment.11 • Other than navigation, the treaties contain no provisions regarding the respective rights of the states to the waters of the river. Never­theless, each section of the Commission developed a set of theories bolstering the claims of its state. The position of each may be summa­rized and briefly criticized. The American Section maintained, in the first place, that the principle of the Treaty of 1906, although expressly not constituting a precedent, may be applied to the Colorado and that, consequently, the United States should have to guarantee to Mexico only that amount of water-about 750,000 acre-feet-needed to take care of existing developments in Mexico. This argument is not wholly sound, however, in view of the fact that the amount of water granted for Mexican use in the Juarez Valley is a much greater quantity in proportion to the total amount of irrigable land. The second point advanced for the United States was that Boulder Dam would largely solve the ftood­control problem, as well as that of silt deposits, both of which were inti­mately related and of considerable importance to the Mexican develop­ments. Third, the American Section contended, with some justification, that power development was not a factor in the question of water division. Fourth, the point was made that surplus water, upon the com­pletion of the power and storage dam, would continue to flow with even greater regularity to Mexico, but that use thereof by Mexico could not establish a right to it as against the United States. This statement, in effect, denied to Mexico the privilege of priority of right for future developments. The fifth argument on behalf of the United States was that its case was materially strengthened by the fact of its undertak­ing the great regulatory works which were needed and which would benefit both states.m Thus the American commissioners rejected the fiction of navigability, and espoused, according to one authority, the doctrines of sovereignty in American territory, comity governing agree­ments, and the preservation of existing uses in both countries.11 6 On the other hand, Mexico's representatives advanced the following contentions: First, the Colorado "being an international stream, the use of its waters constitutes a common wealth for both countries, and 11 3Arizona v. California (1931) , 283 U.S. 423. See above, n. 80. 114For example, the suggestion in 1917 that the countries agree that no claim by either country for injury to navigation be enforced against irrigation uses, S. Doc., 65 Cong., 1 sess., XI (7265), No. 103, p. 35. 11 0Report of the American Section, pp. 44-46. 116W. Hawkins, "Water Rights in United States-Mexico Streams," Temple Law Quarterly, V, 193, 203 (Jan., 1931). 204 The University of Texas Publication that in consequence, in order to deal with its beneficial uses as well as with flood control, this river must be considered as a single geographic unit." This proposition, if backed by both states to the limit, would undoubtedly result in the most equitable solution possible. The second contention was that treaty provisions required both parties to main­tain navigability. In the third place, however, the Mexican Section admitted that, aside from legalities, irrigation was of greater impor­tance than navigation. Fourth, it was insisted that, since irrigable Mexi­can lands totaled 1,500,000 acres as opposed to 6,000,000 acres in the United States, Mexico's share of water should be not less than 3,480,000 acre-feet. This figure, it will be observed, is about five times the amount which the American Section would concede. Fifth, the Mexican commis­sioners urged that the principle of the Treaty of 1906 was not applicable to the Colorado for the reason that this treaty provided compensation for damages and contained a specific denial by the United States, in Article V, that it set up a precedent binding upon the parties. In refer­ence to the application of this tenet, attention was called by the Mexi­cans to their doctrine of "common wealth." Sixth, it was argued that the Boulder Dam project violated treaty provisions, that it would not effect flood control and would not solve the problem of silt deposit, as was proved in the case of Elephant Butte Dam on the Rio Grande. As for Boulder Dam, this point could come only under the navigation pro­visions of the treaties. That it will not effect flood control sufficiently to satisfy Mexico is true to some extent because the Gila River, always a menace in flood times, enters the river below Boulder Dam. As for the silt problem it is readily seen that from the very nature of the river, the matter can never be obviated. In the seventh place the Mexican Section pointed out that since the United States was going ahead with the development of power resources regardless of Mexico, then the latter should be given the benefit of the use of such power at a price no greater than that charged in the United States.111 Thus it may be said fhat the Mexican representatives reiterated the principle of navi­gability and adopted the doctrines of common wealth, geographical unit, and sovereign rights.11 8 That the United States had certain advantages in this matter becomes apparent when an examination is made of the rejoinder of the Ameri­can Section. It was insisted, with regard to the alleged inapplicability of the principle of the Treaty of 1906, that the facts, especially after the construction of Boulder Dam, were decidedly similar ; and that if the United States insisted upon the principle of Article V,119 accepted by Mexico, the latter could have no legal right to any water of the Colo­rado. This contention is untenable in any save the most legalistic sense; and even legalists would have to find a way around the provisions of 111Report of the American Section, pp. 40, 41, 47-49. 11sHawkins, pp. 196--197. 11934 Stat. pt. 3, 2953-2955; App. VI. Boundary Commission, United States and Mexico that article restricting the understanding to the El Paso-Juarez Valley section of the river. It is significant, however, that the American Sec­tion failed to refute the point made by Mexico that the Treaty of 1906 was made in response to Mexican claims for damages, a situation which does not prevail on the Colorado. On the subject of navigation, the American Section stressed the fact that both governments had ignored the fiction of navigability and that Mexico had even granted rights to divert the entire low-water flow of the river, notwithstanding the rights secured to American citizens.1 20 Nor did the American Section make any concession in the allocation of water beyond the previous offer; for it noted merely that the fact of Mexican grants of water to corporations did not establish the right to the water, all of which came from the United States. No specific comment was made on the subject of flood control except to indicate that Mexico had not borne its fair share of the cost. Mexican responsibility for a proportionate part of flood pro­tection costs would seem to be a logical consequence to the espousal of Mexico's doctrine of common wealth, a result that might not be accept­able to the Mexican negotiators. The American Section did admit, how­ever, that the Mexican position in regard to power was reasonable.12 1 It is apparent that by adhering to the theory of navigability Mexico retains a bargaining power that the facts of the case do not warrant. Even granting that the treaties forbade only along the boundary portions of the river the construction by either party, without the consent of the other, of works impeding navigation, it is nevertheless unreasonable to suppose that the upstream state might in equity divert, within its ter­ritory, such an amount of water as to destroy the navigability of the river in its international portions, assuming, of course, that the river is navigable, which is not the case. In this respect a navigable stream differs from one that is non-navigable.12·' It is to be noted in this con­nection that Mexico actually protested against the proposed Boulder Dam project and that Secretary of State Hughes advised that, apart from legal rights in the case, "considerations of equity and comity" would require that the interests of Mexico in the matter should be taken fully into consideration.123 That the United States will not be unreasonable is evidenced by the fact that, in spite of the opinion of Attorney General Harmon in 1895 to the effect that the pertinent treaties did not bind the United States in the delivery of waters of the Upper Rio Grande and that it was in no way accountable,'24 nevertheless it consented to deliver the water to Mexico at the dam head, the conservation, measurement, 12osee above, n. 111. 121For the American rejoinder, see Report of the American Section, pp. 54-58. 122Hyde, I, 313-316. 123Report of the American Section, pp. 257-259, 261-265. This angle of the case probably accounts for section 20 of the act, which could possibly be construed as an admission of accountability on the part of the United States. 124see above, n. 12. The Univers1:ty of Texas Publication and delivery expenses to be borne exclusively by the United States. Exist­ing uses on the Mexican side were provided for by the Treaty of 1906. However, the settlement of the Colorado question on the basis of this understanding would preclude any further development whatever below the international boundary. No solution of the problem will be equitable which does this, despite the fact that the whole water supply does orig­inate within the United States.12;; The International Water Commission, after receiving the statements of the two sections, referred the whole matter of the Colorado to a joint committee for study, which resulted in the report that restated the positions of the parties and suggested the abrogation of the theory of navigability and the inclusion in the proposed treaty of provisions on flood control and power use.126 The National Resources Committee submitted in December, 1936, a 6-year program of federal construction. Included in this program were several projects concerning the Colorado River. Among those recom­mended for immediate investigation were: ( 1) a 20-year study at an estimated cost of $1,000,000 or more of the consumptive use of water in the Colorado River Basin; (2) a study of the effect of floods of the Gila River upon lands in the Colorado River delta; (3) a silt study on its origin and alleviation to extend over 25 years or more of the Colo­rado River drainage area; and ( 4) several investigations on flood con­trol and irrigation. Projects suggested for immediate construction include: (1) the All-American Canal, California, including the Coachella main canal, which is under construction, (2) power plants and distri­bution system in the Imperial irrigation district, California, the plans of which were 90 per cent completed. While these projects do not involve Mexico they are noted because the results of the studies may prove important in an eventual treaty dividing the waters of the Colorado between the United States and Mexico.121 By way of conclusion, it is believed that the United States, for several reasons, will not disregard the interests of Mexico in the Lower Colo­rado. In the first place the experience of the United States has been that it is not pleasant to have starvation and depopulation of Mexican settlements ascribed to alleged American greed, as was the case in the Upper Rio Grande. Also the situation in the Lower Rio Grande Valley is the reverse of that which obtains on the Colorado, and the United States may have to take in the one case the treatment that it gives in the other. In considering the Lower Rio Grande problem, it is advisable to begin, as in the case of the Colorado, with the pertinent treaty provisions. The same conventions-those of 1848, 1853, and 1884-apply. Article V of 12'•Note the questions that have arisen because of the settlement of the Upper Rio Grande difficulties in this manner. See above, n. 38 and n. 39. ti6Report of the American Section, pp. 64-69. 1 2 7H. Doc., 75 Cong., 1 sess. (10115), No. 140, pp. 115-118. Boundary Commission, United States and Mexico the Treaty of Guadalupe Hidalgo makes the middle of the deepest chan­nel the boundary line along the international section of the river, and Article VII secures freedom of navigation on the same portion to the vessels and citizens of both countries and forbids the construction by either without the consent of the other of any work "that may impede or interrupt, in whole or in part, the exercise of this right; not even for the purpose of favoring new methods of navigation."128 The last para­graph of the latter article, since it has given rise to differing interpre­tations, may be quoted in full: "The stipulations contained in the present article shall not impair the territorial rights of either Republic within its established limits." Article IV of the Gadsden Treaty1 " 9 abrogated the sixth and seventh articles of the T'reaty of 1848, but, so far as the Rio Grande is concerned, specified that the terms of Article VII should remain in force below the new boundary line. The Treaty of 1884, as has been stated in the discussion of the Colorado, restricted somewhat the right of navigation by limiting it to "the actually navigable main channels of the said rivers."130 The Treaty of 1906 also enters into the picture because of the fact that Article IV, wherein Mexico waives all claims to the water between the head of the Mexican canal and Fort Quitman, is not interpreted in the same light by both parties. The American Section of the International Water Commission con­tended, in the first place, that by the Treaty of 1906 all water reaching Fort Quitman belongs to the United States. This is derived from the provision of the treaty which states that13 1 ... it is agreed that in consideration of such delivery of water, Mexico waives any and all claims to the waters of the Rio Grande for any purpose whatever between the head of the present Mexican Canal and Fort Quitman, Texas.... It is readily conceivable from this provision that the United States could rightfully claim the use of all water above Fort Quitman in excess of 60,000 acre-feet as allotted to Mexico by the treaty, but to state cate­gqrically that the whole flow of the river at Fort Quitman is subject to diversion by the United States would seem to go a step too far, in that it would give to this country the entire water supply of a boundary river. Such a situation could not exist, according to international law, save with the assent of the other riparian state,m and the Treaty of 1906 does not give this consent since by its own terms it is limited to that part of the river between the head of the Mexican Canal and Fort Quitman. In the second place, the American commissioners proposed that the existing irrigation developments and other uses of the water that have grown up in the two countries along the Rio Grande below 2289 Stat. 922, 926, 929; App. I. 12010 Stat. 1031, 1034; App. II. 2ao24 Stat. 1011, 1014; App. III. 131 See above, n. 34; 34 Stat. pt. 3, 2953-2955; App. VI. 2a2Qppenheim, I, 362. The University of Texas Publication Fort Quitman should be perpetuated by a treaty which would give to these uses the superior and prior right to the present flow of the river. It should be observed that they were not asserting here the principle of priority of appropriation regardless of state lines, but were contending that a treaty arrangement should be reached whereby present uses would be guaranteed priority over future appropriations. The third point advanced by the American Section was that the unused flow should be regulated by reservoirs, the cost and benefits of these to be evenly divided.133 The Mexican Section asserted, in the first place, that the waters of the main stream should be shared equally only after each country has fully developed its tributaries. It is singular that the Mexican commis­sioners should propose such an argument in view of Mexico's vulner­ability on this point with regard to the Colorado, unless, indeed, it could be shown that full development of the tributaries of the Colorado would leave so much water in the main stream that half of it would be all that Mexico would need. As has been stated previously, nearly 70 per cent of the water contributed to the system below Fort Quitman is derived from the Mexican tributaries.' 34 The second tenet of the Mexi­can position as to the Rio Grande was that the hydroelectric power which may be generated on the main stream should be apportioned equally betwen the two countries. This arrangement certainly should not be called inequitable, provided that each state were allowed to develop its half of such power for itself. Third, the Mexican Section maintained that the waters between El Paso and Fort Quitman remained interna­tional after the Treaty of 1906, a refutation of the first point put for­ward by the American Section. In the fourth place the Mexican commissioners argued against the doctrine of priority and prescription, contending that it was not estab­lished in international law. The Mexican view, and indeed much Ameri­can thinking, on this matter is based on a misconception. The arid­region principle of prior appropriation as propounded by the courts of the United States in the western States, and as derived from the civil and common law, is applicable only to municipal disputes as to private rights. It is based on the norm, "first in time, first in right." It is a progessive tenet, whereby each successive withdrawal is established in right as against all diversions which come after, and so it continues until the entire flow of the stream is vested in the prior users. As regards international law and practice on the distribution of waters of international rivers, the matter is not progressive as in the case of municipal law, subject in its unappropriated flow to the first newcomer, but instead it is static and fixed according to conventional agreement, i3aReport of the American Section, p. 75. lHfbid., p. 316. Boundary Commission, United States and Mexico such as these negotiators were trying to reach.135 Furthermore, once a treaty arrangement is made, the appropriator, national of one state, must acquire his right to divert according to the provisions of that pact, or he will withdraw water at his own peril. In the cool atmosphere of deliberation no Mexican of authority would contend that he was advo­cating a reduction of the water supply of the American irrigators in the Lower Rio Grande Valley by convention in such a manner as to leave them destitute as were the Mexican and Texas irrigators in the El Paso­Juarez Valley before a treaty was negotiated. The matter must be solved without shutting off any existing uses; this is in the interest of Mexico as well as of the United States. Furthermore, since the aim of the present negotiations is to produce a mutually acceptable arrangement, it should be clear that in no event would the United States agree to a settlement whereby American property would be destroyed. An attempt will be made later to show that it has been the unwavering rule in international practice in the matter of treaty agreements on the division of the waters of international rivers to guarantee existing appropria­tions in each state before an apportionment of waters is made.136 The fifth item in the Mexican Section's contentions was that the navi­gation sections of the treaties should be canceled when the two govern­ments should accept the Mexican commissioners' recommendations.131 Needless to say, agreement was reached only upon minor matters in this exchange of views. It was finally decided that better stream-flow data should be gathered, that studies on location and operation of reser­voirs should be completed, and that the right of navigability should be abrogated.138 That the positions of the two states as between the Colorado and the Rio Grande are somewhat contradictory is evident. Perhaps a state­ment from a recent commentator might serve to elucidate the point:m To the American section's claim of sovereign right to all the waters cf the Colorado the Mexican section interposed a sovereign legal right to a share thereof, and then to the Mexican section's assertion of a sovereign right to all the waters of the Mexican tributaries of the Rio Grande the American section interposed a sovereign legal right to all such tributary waters now used in American territory. This is enough on which to say that neither section seriously doubts the rule ... that a nation may not divert and use the waters of an international stream without ac­countability. Clearly the chief concern of the United States is to make secure exist­ing developments in Texas and if possible to provide water for future 135International law and practice are given more detailed treatment, this chapter, sec. 7; for American law and practice see C. S. Kinney, A Treatise on the Law of Irrigation and Water Rights and the Arid Region Doctrine of Appropriation of Water. 136The common law rule with regard to riparian rights is that every riparian is entitled to the continued flow of the water past his property. 137Report of the American Section, pp. 74-75. 138Jbid., pp. 74, 77. 1aDHawkins, pp. 203-204. The University of Te:ras Publication expansion. To accomplish this, it is essential to induce Mexico to admit the preservation of existing uses and to join in a program to store the 4,000,000 acre-feet now passing to the Gulf of Mexico each year.11° It should be borne in mind that in the Lower Valley some 370,000 acres are being irrigated on the American side in Cameron and Hidalgo coun­ties alone and only 4,300 acres on the Mexican side, that Mexico sup­plies well over half of the water, practically all of which American users must have unless storage be provided, and that, in consequence, any measurable development in Mexico will threaten with ruin whole com­munities in the "Magic Valley."rn Furthermore, Mexico has already constructed a large reservoir on the Conchos, another on the Salado with a capacity of 1,100,000 acre-feet, and is building one on the San Juan Don Martin Dam and Reservoir on Rio Salado, Mexico (Photograph by the author: September, 1932) with a capacity of approximately 2,000,000 acre-feet. ,.2 It is not astonish­ing, therefore, that the situation facing the United States is potentially critical and that an agreement should soon be reached. The Mexican commissioners' refusal to agree to the preservation of existing uses presents a definite reversal of the position taken by their ""In 1938 the measured flow at the Matamoros station was 4,025,500 acre-feet. Water Billletin, No. 8, p. 44. Subnormal precipitation and diversions for two new developments decreased the 1939 figure. Ibid., 1939, p. 43. Hlfbid.; Hwrings on H. R. 8371, p. 11; Report of the American Section, p. 24. 142lbid., pp. 27, 28. See also frrigaci6n en Mexico, Revista Mensual, Organo de la Comisi6n Nacional de Irrigaci6n, IV, 211, 217, 239 (Jan., 1932); and later issues, especially Vol. XV, Nos. 1-6; Vol. XX, No. 1; Vol. XXI, No. 2. Boundary Commission, United States and Mexico government in 1896, at the time when the El Paso-Juarez Valley prob­lem became really serious.118 It is futile, however, for either side to argue in this vein, because to make an agreement without caring for existing uses would not be solving the question but would be aggravat­ing it. Mexico's position is readily understandable. It, too, has millions of acres of rich soil as yet undeveloped. This lack of development is, indeed, the chief reason why the situation has not become more critical in Texas. Mexico would like to utilize her land to the fullest, but this cannot be done at the expense of existing Texas uses unless interna­tional practice be disregarded. Economic facts, however, indicate no early agricultural expansion on the Mexican side comparable to what has taken place in Texas. The soil, the water, the climate, and the labor are there, but the all-important factor of a market is almost completely absent. The production of staples alone may not warrant extensive devel­opment, and the only feasible market for vegetables and fruits is the United States, 'but the United States tariff schedules operate as a serious hindrance to the importation of such products from Mexico. This point might also be made with regard to the Lower Colorado. There, too, the market, by virtue of American tariffs, would have in large part to be Mexican, and in Mexico markets develop slowly.1 H Then the matter rested for several years. Chairman Mead of the American Section presented the Commission's findings to the Depa1·t­ment of State on March 22, 1930, and they were submitted in turn to the President and to Congress.140 The Commission continued in opera­tion to complete its studies on flood control, dam sites, gauging stations, and the measurement of evaporation, consumptive uses, and duties on water used in irrigation.116 However, in July, 1930, the American Sec­tion of the International Water Commission was reorganized; L. M. Lawson was designated as sole American commissioner. In 1932 he recommended that the duties of the American Section of the Interna­tional Water Commission be transferred to the American Section of the International Boundary Commission, and this was done.17 On Janu­ • 143Romero to Olney, Oct. 21, 1895, S. Doc., 57 Cong., 2 sess., XIII (4428), No. 154, pp. 7, 8. 144ln view of the social and economic structure of rural life in Mexico, there would appear to be less weight to the argument that irrigation developments in Mexico, as in the United States, would have to have ready markets for types of products such as are grown in the Lower Valley in Texas. It overlooks the i'act that :rural life in Mexico is still fairly self-contained and that the need for "cash crops" there is far less than in the United States; yet, this condition would undoubtedly restrict the total acreage that could bei advantageously irrigated in Mexico. 14SMead to Stimson, R eport of the American Section, p. vii; Cotton to Hoover, April 18, 1930, ibid.; Hoover to Congress, April 21, 1930, ibid., p. v. 146Stimson to Hoover, Jan. 8, 1931, S. Mis. Doc .. , 71 Cong., 3 sess., I (9346), No. 250. An appropriation of $287,000 for further studies on the three rivers was made in the Act of Feb. 14, 1931, 46 Stat. pt. 1, 1162. 147H. Rep., 72 Cong., 1 sess., II (9492), No. 1025; Act of July 1, 1932, 47 Sta;t. pt. 1, 475, 481. The University of Texas Publication ary 1, 1932, the Mexican Section of the International Boundary Com­mission likewise assumed the work of its section of the International Water Commission. Three years later, there was appointed an Interna­tional Water Commission for Mexico, and, although separated, the two 0 Commissions (Water and Boundary) functioned as one.1However, begin­ • ning January 1, 1941, Mexico again united the two functions. Thus the transfer of the functions of the American Section of the International Water Commission to the American Section of the Inter­ational Boundary Commission considerably increased the duties and activities of the latter. The work of gathering additional data on flood control, dam sites, gauging stations, evaporation, and consumptive uses and duties on the American side falls now to the lot of the American Section of the Boundary Commission.149 From it also will come the additional reports required by the Department of State for its negotia­tions. It is worthy of mention that the Commission's functions were increased in the same manner on several previous occasions. The sub­mission of the problem of equitable distribution on the Upper Rio Grande to the Commission in 1896 had the result that for a time the whole of its activities consisted in the collection of data for this pur­pose.1"0 In like manner once the Treaty of 1906 was effected by the completion of the dam at Elephant Butte, the Commission was required on several occasions to rule on the interpretation of the treaty, a task which it had theretofore not had.1 " 1 From these instances, it would seem that the assumption of Secretary of State Hughes in 1924 that this agency could not be empowered to investigate the subject of equi­table distribution was erroneous.1 02 In any event, the functions of the American Section of the Boundary Commission have been materially increased by the act adding to it the powers and duties of the Interna­tional Water Commission. The results may well prove momentous. The National Resources Committee in December, 1936, recommended that a study of water uses and supplies in Texas along the Rio Grande below Fort Quitman be made immediately to form the bases of plans for the construction of major reservoirs.1 53 In October, 1938, Federal Project No. 5 was instituted. It consists of an engineering investigation and study to ascertain the best methods of effecting flood control and the conservation of water on the Rio Grande between Fort Quitman and the Gulf of Mexico. On the portion of the project between Fort Quitman and Laredo, the field surveys and investigational works have already been performed in the 100-mile HBWater Dulletin, No. 9, p. 4. 14!•See Water Bulletins, passim. 150See above, n. 16. This agreement to refer the question of distribution to the Commission came later to be known as the Protocol of May 6, 1896. See above n. 73. 151 Minute of April 27, 1918 (MS); Minute No. 101, Feb. 27, 1928 (MS). 1" 2Hughes to Committee on Foreign Relations, April 21, 1924, H. Rep., 68 Cong., 1 sess., III (8228), No. 666. ic.sH. Doc., 75 Cong., 1 sess. (10115), No. 140, pp. 111-113. Boundary Commissi.on, United States and Mexico stretch of the Presidio Valley and the engineering investigations are now in progress. On the section below Laredo, comprehensive recon­naissance work and engineering studies of topographic maps and other data were completed, and possible American sites on the Rio Grande for inland diversion and storage reservoirs were examined. On February 3, 1940, the engineers reported on the Valley Gravity Canal and Storage Project, envisaged in the investigations under Fed­eral Project No. 5. This report, which has not been made public, calls attention to the dangerously critical situation confronting the Texas side of the Lower Valley. There are now 583,000 acres with irrigation facilities, the total net area of the public districts and private systems being 715,000 acres. The well-being of this enormous development is threat­ened by the lack of water storage, more specially now that the Mexican canal headings can divert the entire low water flow. Since no satisfac­tory treaty with Mexico is yet in sight, it becomes imperative to con­struct such all-American works as will give the United States full con­trol of the water required by its citizens. Briefly stated, the suggested plan calls for the immediate construction on the Texas side of two off-river reservoirs to store a total of 405,000 acre-feet of water, a 72-mile concrete-lined inlet canal, 97 miles of concrete-lined feeder and distribution canals, 70,000 linear feet of dam embankment, a power plant, several bridges, and minor structures. Postponed for the future is an upstream reservoir on the main stream or on Devil's River. That this project is no idle dream is clearly evidenced by the West bill, which would authorize an appropriation of $54,643,000 to execute the project, which would require no less than four years. In the 1942 appropria­tions bill for the Department of the Interior, now being considered by Congress, the sum of $2,500,000 is set aside for the completion of these investigations and the commencement of construction of works in com­pliance with the engineering plan outlined in the report submitted to the American commissioner by the engineers and the attached report. This money is under the direction and control of the President in accord­ance with the Act of 1935.'54 Thus, on both the Colorado and the Rio Grande the United States is pushing to completion plans to provide not only ample water for the neelis of its people along these rivers but also effective control of such water. These plans do not stand in the way of an eventual agreement with Mexico covering the whole water problem. Indeed, they may be regarded as encouragements to the making of a treaty. T"he problem in the Colorado basin and in the Upper New Mexico basin are now well in 154Statement submitted by L. M. Lawson, American commissioner, Feb. 7, 1940; The Austin American, April 19, 1940; H. R. 9442, Congressional Record, April 18, 1940, p. 7199. Report of Conference of Engineers to The American Commissioner, International Boundary Commission, United States and Mexico, on The Valley Gravity Canal and Storage Project (Federal Project Number 5), 1940 (mimeographed). JI. R. 4590, 77 Cong., 1 sess., April 30, 1941, p. 86. The University of Texas Publication hand. The desperate needs of the Lower Valley of Texas render imper­ative the early completion of an all-American gravity canal and storage project in that region to assure an adequate supply of water and to eliminate the numerous pumping systems now used there. 6. FLOOD CONTROL PROJECTS Plans for flood control and conservation of waters are matters closely related to the problem of division of waters. Storage and flood protec­tion at Elephant Butte are an essential part of the agreement reached in 1906 regarding the Upper Rio Grande. Boulder Dam is destined to fill the same role with regard to any arrangement reached on the Colo­rado River.155 Conservation and control have long had the attention of the Boundary Commission. Commissioner Gaines of the Commission on Equitable Distribution went so far in 1915 as to advise that flood con­trol would be the only effective remedy for the banco troubles.1 56 The Boundary Commission had from time to time expressed opinions on the feasibility of storage dams at various places along the Rio Grande.'"7 One of the flood control works carried out under the supervision of the Commission is that at Nogales, Arizona-Sonora. In 1930 the Nogales wash, a drainage basin leading into the Santa Cruz River and flowing into the United States, was flooded and caused great damage on both the Mexican and the American side of the boundary. Conferences were held with the result that the International Boundary Commission was ordered to make a complete survey with a view to the construction of flood control works. This was done, and the joint report was made in June, 1931.1" 8 The commissioners later submitted a comprehensive plan for the construction of these works. In 1933 the Public Works Admin­istration allotted the sum of $433,000 for the portion of the work to be performed on the American side, and operations shortly thereafter com­menced on this project.m On July 4, 1936, these preventive works had 15 "Coolidge Dam on the Gila River, a tributary of the Colorado, is another American dam designed to effect conservation and flood control as is the Red B;ico an analysis of the pertinent economic and geographic facts, the natnre of the present arrangement in the Upper Rio Grande, the essentials of the situation in the Colorado River basin, the problem the United States Section of the Commission faces on the Lower Rio Grande, and the recent efforts to discover satisfactory bases for a water convention. Finally, an excursion was made into other parts of the world to dis­cover what international customary and conventional law, past and present, have to offer on the matter of diversion of water from inter­national streams.0 In the course of these investigations to determine the nature of the problems before the Commission, its juridic characteristics, and the legal points involved in its work, the occasion has necessarily presented itself to make special studies of the Commission's powers and functions. These may readily be classified as to source and kind; and the questions upon which they are brought to bear may be grouped as to their place in public international law. As to source, Chapter III established that they rest primarily upon treaties-those of 1889, 1905, 1906, and 1933-and secondarily upon instructions and ordinary statutes. In respect of kinds of powers and functions a classification may be made as to the types of boundary upon which they are applied, upon the degree of independence possessed by the Commission in the carry­ing out of its functions, and as to the functional character of its powers and duties. These bases of division may be employed in the above order. As to the first, i.e., types of boundary, there are powers and duties relating to the river boundary and those relating to the land boundary. By far the majority have to do with the river boundary. They include many matters over which the Commission was given in broad, sweep­ing terms "exclusive jurisdiction" in Article I of the Treaty of March 1, 1889. Examples are: to decide on the character of changes in the bed of the rivers; to suspend or prohibit, or require changes in the plans of, works in violation of the treaties; to survey and mark the river boundary; to survey, mark, and eliminate bancos; to take water meas­urements; to study bases for agreements on water storage and appor­tionment; and to undertake river rectification and flood control surveys and works. On the land boundary the powers and duties of the Com­mission depend upon statutes and special instructions and are usually limited to relocation of the boundary, to monumentation, and to flood control. With regard to the degree of independence in the exercise of powers and duties they may be classified as ministerial or as discretionary. Illustrations of the former are the various surveys, the gathering of data, and the supervision of flood control works. As examples of dis­cretionary authority-at least within certain limits-may be given the power to decide the relative value of evidence, whether or not to hold sch. IX. The University of Texas Publication hearings or call witnesses, what changes to order made in works along, in, or over the river, e.g., levees, bridges, weirs. Next, on a functional basis, the powers and duties of the Commission may be classified as quasi-judicial, executive, administrative, investiga­tive, and advisory. Under quasi-judicial powers may be listed the power to decide whether changes in the beds of the rivers are accretive or avulsive; whether, on the basis of discovered facts or evidence submitted, a given cutoff should be eliminated under the Treaty of 1905; or whether works in, over, or along the rivers viol'ate the stipulations of the bound­ary treaties. This group of powers is described as quasi-judicial for two reasons : First, decisions in these and all other matters before the Commission are subject to the disapproval of either government within the stated period of one month; second, the subject matter of most of the questions is not strictly justiciable in character but is primarily administrative or technical. Yet there is something of the judicial char­acter about a decision that a certain levee or embankment is so con­structed as to violate the treaty terms. Furthermore, Article VII of the Treaty of 1889 categorically endows the Commission with power "to call for papers and information," and to summon any witnesses whose testimony it may think proper to take, and it ~hall be the duty of all persons thus summoned to appear before the same and to give their testimony, which shall le taken in accordance with such by-laws and re;sulations as may be adopted by the Commission and approved by both governments. In case of the refusal of a witness to appear, he shall be compelled to do so, and to this end the Commission may make use of the same means that are used by the courts of the respective countries to compel the attendance of witnesses, in con­formity with their respective laws.o This phraseology seems to imply that the Commission has the status of a court in the matter of witnesses and evidence. However, there is no record of a case wherein the Commission has attempted to use these powers, and it would appear clear that in case witnesses failed to appear to produce evidence, the Commission would have to apply to the proper court for writs.10 As to executive power, which, in general, may be defined as the power to carry into effect laws, decrees, or court decisions, there is no evidence 926 Stat. 1512, 1515. 10There appears to be no documentary evidence on this point, but it has been discussed carefully with the legal counsel of the American Section. In this connection it will be of value to compare the United States-Mexican Boundary Commission with the International Joint Commission between the United States and Canada. The latter has definite judicial power ; yet Article XII of the Treaty of 1909 (36 Stat. pt. 2, 2448, 2453) merely binds the two states to enact legislation empowering the Commission to compel attendance of witnesses, production of papers, etc., and the United States law in the case (36 Stat. pt. 1, 1363, 1364) authorizes the Joint Com­mission to apply to the proper circuit court of the United States for enforcement of these legal rights. It would thus appear that the Treaty of March 1, 1889, is in terms self-executing; yet, as a matter of fact, the Commission has no machinery for such judicial processes and would have to rely on the courts. Boundary Commission, United States and Mexico that the Commission possesses any large amount of such authority. In one sense, of course, it may be thought of as a part of the executive in the execution and administration of the foreign affairs of the two states. In a special sense, the Commission scarcely has executive authority. It may, of course, use the courts in some of its processes, as it did in the case of United States v. American Rio Grande Land and Irrigation Com­pany,11 but it has no independent executive or police authority. True, it "follows up" its decisions to see that they are obeyed, but a failure to obey them would leave the Commission wholly dependent upon the executive, who in turn would apply to the courts for judicial enforcement. There is no doubt, however, that the Commission has administrative power. Some of it, as the technical work of surveying and marking the water boundary and applying the treaty law to river changes in order to determine whether such changes be avulsive or erosive and, if the former, whether the cutoff falls within the defined limits for elimination, comes definitely from treaty authorization. Its work and authority under the Treaty of 1933 may also be described as administrative. Other administrative functions, as has been seen, are derived from ordinary statutes and special instructions. The Nogales Flood Control Project and the functions along the land boundary are illustrations.12 A phase of the Commission's administrative pow,er may be defined as permissive. It is observed in application especially in approving or disapproving, or compelling changes in plans for, bridges and other works along the river boundary.13 Another group of powers, classified on the functional basis, may be called investigative. The treaties do not, per se, give the Commission such power, i.e., if by investigative power is meant merely the discovery of facts as distinguished from the investigations that must necessarily precede decisions by the Commission. That is, the Commission is not made, by the treaties, a commission of inquiry for certain special sub­jects. In this respect, also, it differs from the United States-Canadian Joint Commission, which is authorized by Article IX of the Treaty of 190914 to investigate and report upon "other questions or matters" that either government may refer to it. But the same result is achieved in the case of the United States-Mexican Boundary Commission by special instructions, protocols, and statutes. An early instance was the Protocol of May 6, 1896, !;' directing the Commission to investigate the facts and make recommendations in regard to the distribution and storage of water in the Upper Rio Grande. Other important cases are the flood control 11Equity, No. 41, U.S. Circuit Court, Southern District, Texas, judgment filed Dec. 5, 1911, at Brownsville; see Proceedings, Horc6n Case. 12ch. III, passim. 13See above, pp. 63-90. 1436 Stat. pt. 2, 2448, 2452. 15Proceedings, II, 275. 228 The University of Texas Publication projects, the preliminary studies of river rectification, water measure­ments, and, since 1935, the remonumentation of the land boundary, water studies, and investigations for proposed boundary projects. The last named are by virtue of the Act of 1935.rn In connection with investigative powers is the advisory or recommend­atory power. In one sense, it may be said, all the decisions of the Com­mission are recommendatory since either government may within one month of the date of the decision disapprove the action. In practice, however, its decisions are almost never disapproved.17 Here, though, reference is had to a special power to advise or recommend certain courses of action. As in the case of investigative powers, the treaties are silent; but the same instructions, protocols, and statutes that confer investigative powers upon the Commission give it also power to recom­mend a course of action.18 Finally, this summary may be concluded by classifying the powers and duties of the Commission with reference to the types of international law questions to which they relate. These have been stated from time to time in preceding chapters. Here the purpose is to bring them together in compact, summary form. The first and oldest group of international law questions involved in the Commission's authority is navigation of international streams. Article V of the Treaty of 1889 adopts by refer­ence Article VII of the Treaty of 1848 and Article III of the Treaty of 1884, both of which guarantee the right of navigation and bind the governments to prevent any works that would tend to interfere with the right. Much of the power and activity of the Commission relate, therefore, to this old legal fiction of the navigability of the Rio Grande and the Colorado, so that even today when both governments tacit.ly admit the non-navigability of the two rivers the Commission looks with a careful and jealous eye upon any work that interferes or may tend to interfere with the main channel of the streams.19 Another important group of international law questions relates to the rivers as the boundary. One is reminded immediately of the rules of the thalweg as opposed to the fixed line theory; of accretion, avulsion, and erosion ;20 and of diversion and control of water. Involved in avul­sion and accretion are such points as prescription, cessionary theory as opposed to the theory of areas of disputed sovereignty, the protection ' 6Cited above, p. 54. The Act of 1935, of course, deals only with the American Section. 17The minutes do not clearly record cases of disapproval. The practice is to amend minutes to conform to the wishes of the governments before such minutes are made parts of the permanent records; but too much should not be made of this power of disapproval. Governments may and do disapprove strictly arbitral awards if sufficient justification is present. 18 See, e.g., 43 Stat. pt. 1, 118, providing for the study of distribution of water. rnrt should be stated that the Commission's interest is now occasioned by the tendency of such works to deflect the current against one or the other bank. 20See especially Ch. VIII on the Chamizal case. Boundary Commission, United States and Mexico of rights and property of aliens, the relation of domestic courts to the determination of boundaries, and the enforcement of foreign judgments.2 ~ Other international law points are, in the main, embedded in much of the law and work of the Commission. Treaty interpretation by the executive, the courts, and the legislature appears frequently.2" Involved in treaty interpretation is the question of the retroactivity of treaties, as was seen in the Mexican arguments in the Chamizal caBe. There are also such general matters as the law and procedure of international commissions, the pacific settlement of international disputes, as in the Chamizal case, and the relation of municipal to international law.23 2. COMPARISONS, CONTRASTS, AND CONCLUSIONS In drawing conclusions from the preceding chapters there is, of course, room for differences of opinion according to the particular interests, prejudices, training, and background of the reader. Hence, in ventur­ing several conclusions and suggesting a few alternative policies there is no hope or supposition that all of them-or any of them, for that matter-are free from valid objections. Some of the following points relate directly to the Commission; others have reference immediately to treaties or to the two governments; but all have a close bearing upon the powers, functions, and general position of the International Bound­ary Commission. The first conclusion is that the Commission is to a considerable degree unique as to nature, powers, and work. This may be more readily understood after a glance at other similar bodies. Of major importance to the United States is the International Joint Commission between the United States and Canada. Indeed, had the idea of an international organization possessing powers over all streams of international interest on the North American continent been accepted and put into operation as suggested in 1894 and adopted as a resolution in 1895 by the Inter­national Irrigation Congress, the two American boundary agencies might today be merged into one great North American boundary commission."' However, subsequently, mention of Mexico was dropped from the nego­tiations. Each of the four commissions (two American and two European, the latter being discussed as of their pre-World War II status) has a per­ manent organization. The International Joint Commission between the 21An example of the last is the treatment accorded the decrees of the Mexican court in the San Lorenzo Banco case, cited above, pp. 22on this point see above, Ch. VI, sec. 1. 23The conflicts over private titles to banco lands serve well to illustrate the relation of the sovereign political power to fix the boundary to the municipal law on determina­ tion of private rights. 24C. J. Chacko, The International Joint Commission between the United States of America and the Dominion of Canada, pp. 72ff., gives an account of .the Canadian resolution and its subsequent history. The University of Texas Publication United States and Canada was established in 1909,25 the Central Com­mission of the Rhine in 1815,26 and the European Commission of the (Lower) Danube in 1856.21 However, certain differences can be noted among these structures. The International Boundary CommiP.sion, United States and Mexico, consists of two commissioners, each country being represented equally. Permanent headquarters are located on the fron­tier at towns across from each other: El Paso, Texas, and Juarez, Chihuahua, in the United States and Mexico respectively. These two commissioners, in recent years, have resided on the border, and, conse­quently, are constantly in intimate touch with boundary problems. They meet whenever it is necessary, daily, if required. Each commissioner has one vote.28 The International Joint Commission between the United States and Canada is composed of six members, three representing each nation. Permanent headquarters for Canada are located at Ottawa and for the United States at Washington, D.C. This body meets regularly on the first Tuesday in April at Washington and the first Tuesday in October at Ottawa, special meetings being held at such places and times as the chairman of the two sections designates.29 The Central Com­mission of the Rhine whose headquarters is at Strasbourg is made up of an unequal number of representatives from several of the states: France has a total of five, including the presidency, Germany four, the Netherlands, Switzerland, Great Britain, Italy, and Belgium two each. In voting, each delegation has "the right to record a number of votes equal to the number of representatives allotted to it."30 In order to be effective, decisions must receive an absolute majority of the votes; how­ever, decisions are not binding upon riparian states until their consent is obtained.31 The European Commission of the Danube, at the close of the World War, consisted of one representative each of France, Great Britain, Italy, and Roumania. Its permanent headquarters is at Galatz. Regular sessions are held twice a year, in May and October. A majority only is necessary for decisions of form, interior service, etc., but unanim­ity is required for important questions of principle.32 The main function of each of these commissions also offers some con­trasts. The Central Commission of the Rhine is empowered to act in all matters concerning navigation and is required to publish each year a detailed report on Rhine navigation, its annual movement, its progress, and everything relating to internal and foreign commerce. To supervise 2°36 Stat. pt. 2, 2448. 26Martens, Nouveau Recueil de Traites, II, 429. 21/bid., Nouveau Recueil General de Traites, XV, 770. The International Commis­sion of the (Upper) Danube was created by the Treaty of Versailles. 2ssee above, Ch. II, sec. 2. 2936 Stat. pt. 2, 2448, 2451; Chacko, App. B. 00Article 355 of the Treaty of Versailles. 3 1Kaekenbeeck, International Rivers, p. 52. 32Article 346 of the Treaty of Versailles; J. Chamberlain, The Danube, p. 65. Boundary Commission, United States and Mexico the carrying out of the commission's regulations there are several sub­inspectors, who also oversee the policing of the navigation. Disputes arising over these rules may be appealed for final judgment to the com­missiDn.33 The European Commission of the Danube also is primarily interested in navigation, and in connection therewith, is an administra­tive, judicial, and engineering body. To enforce its regulations the war­ships of the powers may be called upon to suppress violators belonging to their nation.34 The International Joint Commission between the United States and Canada is specifically endowed by the Treaty of 1909 with definite arbitral, judicial, administrative, and investigative powers, and is, to a large extent, legal in its nature and work.35 It has no large engineering staff and does not itself undertake the construction of great public works. The International Boundary Commission is not an arbitral tribunal, as that term is ordinarily understood, yet it renders decisions on many classes of boundary problems, and these decisions are rarely disap­proved by the governments. The treaties do not give it definite powers of inquiry and conciliation; yet, much of the work of the separate sec­tions has consisted and now consists in making investigations and rec­ommendations. It has no treaty authority over the land portion of the boundary, but in fact many technical questions affecting that line are handed to it for solution. The older treaties give it no administrative power, but in recent years, and to an increasing extent, it has acted as an administrative agency for large public undertakings along the border. Furthermore, it began as a body chiefly technical, tended thereafter for a period of years to become legal and political in work and composi­tion, and has lately developed into a large, efficient, engineering organ­ization, headed by engineers, staffed mainly by engineers, and engaged primarily in engineering tasks. The United States-Mexican Commission, then, is partly judicial but mainly technical, administrative, and inves­tigative. A second conclusion is that the Commission has been measurably suc­cessful in its work, and that the future seems certain to assure even greater success. Its difficulties have been far greater than have been those of the commission on the northern boundary of the United States. In the first place, relations between the United States and Mexico have been, during much of their history, notably unhappy. Even yet it would be short oi the truth to say that their relations are as cordial as are the relations of the United States with Canada. Differences in culture, background, legal systems, and economic development have operated to make difficult a good understanding between the peoples of the United States and Mexico. Furthermore, there were the long, tragic years of the aachamberlain, The Regime of International Rivers: Danube and Rhine, pp. 186-187, 216, 241-242; Kaekenbeeck, p. 52. a•Kaekenbeeck, p. 128. asMalloy, pp. 2607-2616; Chacko, Chs. III, V, VI, VII. The University of Texas Publication Mexican revolution. It may be noted, too, that the boundary streams, with their shifting channels, and their dearth of water for vast areas trying desperately to get water for arid wastes, have not conduced to an easy solution of the boundary problems. In spite of these and related difficulties the Commission has labored during most of the time to find solutions satisfactory to both peoples and has, by and large, succeeded in its undertaking. It failed in the case of El Chamizal, and the great task of water storage and distribution lies before it; but it has settled most of the banco problems.36 Its uniform success may be ascribed to several factors. One is the fact that the Commission in theory and in practice operates on the basis of the absolute equality of the two states. So does the Canadian­American Commission; but it is believed that for the character of work that the United States-Mexican Commission must do it is preferable to have but two commissioners. Another factor contributing especially to its later success and its promise of a future usefulness is its steady insistence on avoiding strife and on doing something practicable. If a certain problem, as Chamizal, cannot be settled at any given time, the commissioners simply avoid the subject and direct their energies toward some constructive work in which both states have a vital interest, such as flood control and river rectification. Instead of quarreling over legal rights to water, the two sections of the International Boundary Com­mission set about with their corps of experienced engineers to make a careful survey of all water resources in the boundary rivers and their tributaries and of all storage possibilities, including great international dams, in order to discover if by cooperative endeavor the two states might not secure enough water for all reasonable uses. Still a third factor making for the success of its work, especially in late years, is the fact that both commissioners are, as has been stated, engineers, but engineers with a broad knowledge of international law and rela­tions. Finally, let us note that the Commission operates on a full-time basis. It is always at work. The commissioners and their staffs give practically all of their time to the tasks before the Commission ; they do not look upon it as a temporary or spasmodic matter; they stay on the frontier and are intimately familiar with the whole river and land boundary.37 esThe task of surveying and eliminating about 172 bancos, giving some to one, some to the other state, has been a huge one, especially when many of such tracts were claimed by both Americans and Mexicans, whose titles were necessarily affected by the decisions of the Commission on the location of the boundary and the character of river changes. 37 Attention should also be called to the steadily improving tone of Mexican-Ameri­can relations in recent years. This has been particularly noticeable along the boundary since the decision of the Department of State, early in the. term of Commissioner Lawson, to undertake in good faith the application of the banco elimination treaty to the El Paso-Juarez Valley. Furthermore, general relations of the two states, strained for a time as a result of the execution of the terms of the Constitution of Boundary Commission, United States and Mexico A third conclusion is, in some degree, no more than a presentation of a policy. It is that bancos should be surveyed, marked, and, if within the limits set in the Treaty of 1905, eliminated immediately after they are formed instead of allowing years to elapse, by which time counter­claims are fairly certain to arise. This is no reflection on the Commis­sion; rather, it is the statement of a belief that the Commission, as a general policy, should suffer no interference in its work. The unhappy results of delay are seen in the El Paso-Juarez Valley, where from 1913 until 1930 no bancos were eliminated, mainly because of the policy of delay enforced upon the American commissioners.38 In the interim Americans settled on the lands and received titles, all in good faith. Yet Mexicans also had titles. Furthermore, testimony and scientific data grow vague with the passage of time. In the fourth place, it is believed, as a conclusion drawn from a study of the character of the Commission's work, that the attachment of an engineering adviser to the staff of the Department of State might be a policy warranted in the circumstances. The Department of State has legal and economic advisers; yet with engineering problems of great magnitude facing it on both frontiers it has thus far not secured an adviser whose sole task would be the study of the engineering phases of our boundary problems. The fifth conclusion is that the whole problem of bancos and other avulsive changes needs clarification. This includes an elucidation of the relation of the domestic courts to the Commission's work in fixing the boundary line and eliminating bancos. In the first place, it is difficult to criticize the local courts for acting on the assumption that bancos, until eliminated, are areas of disputed sovereignty; that their elimina­tion cannot be cession; hence, finally, that Mexican titles are without validity. The simple truth is that the diplomatic negotiations were con­cluded on the basis of areas of disputed sovereignty. It is an uncom­fortable situation, for disputed sovereignty clouds all titles until one sovereign surrenders its claims. The Treaty of 1905 should be clarified so as to make elimination a clear-cut transfer of undisputed sovereignty, which is, indeed, the actual interpretation now put upon it by the gov­ernments and by at least one federal court of the United States. How­ever the United States Supreme Court may rule, the situation will be complex and unsatisfactory. Perhaps the Treaty of 1933 points the way by m-aking it an exchange of territory, thereby avoiding the popular objection to cession as such and the legal difficulties of clouded sovereignty. 1917, have tecome definitely more friendly. Commissioner Lawson and Commissioner Serrano are also serving as commissioners to examine the land claims of Americans against Mexico. 3RMinute of Feb. 15, 1912 (MS). 234 The University of Texas Publication Mouth of Rio Grande, the Gulf of Mexico, and a banco (Photograph by National Photo Print Co.: December 18, 1929, copy supplied by Commissioner L. M. Lawson, International Boundary Commission, United !Otates and Mexico) Boundary Commission, United States and Mexico Meantime, it is believed that if American courts cannot and do not protect treaty rights of Mexicans in banco lands cut to this side, it may be a good policy to create an agency, perhaps a temporary claims commission, that will make monetary reparation. It seems clear thus far that Mexican property owners can scarcely be assured protection in Texas courts and even in some United States courts. Treaty obligations are here involved and a way must be found to execute them in good faith.39 Involved in this same matter of segregated tracts are El Chamizal, C6rdova Island, San Elizario, Beaver Island, and the Horc6n tract. Preliminary to any further effort to settle these problems, it is believed that measures should be adopted to prevent the recurrence of avulsions. The rectification program in the El Paso Valley has accomplished this result in that area. Storage dams and flood control works farther down the Rio Grande, in addition to Boulder Dam on the Colorado and dams on the tributaries of the Rio Grande, will go far to achieve the same result in the remainder of the water boundary. The two governments could then attempt to find bases for the settlement of the question of the special areas named above. Once they agreed that the river must actually be the boundary, and then having assured it a stable channel, a settiement would be easier to reach. It is frankly submitted that neither state really wants, except as a bargaining point, any territory on the other side of the actual channel. Some bases for an equitable solution might be these: Let Beaver Island and the Horc6n tract go to Mexico. San Elizario may remain American territory. The rectified channel now runs along the south side of the island. Mexico lays no claim at all to it; hence it need not be thrown into the balance in esti­mating exchanges. C6rdova Island should go to the United States, and the de facto control of Chamizal by the United States should be made de jure, provided Mexican title-holders, if there be any, be amply pro­tected or compensated, if need be, by means of a temporary arbitral body such as a Mexican official suggested to the United States when Victoriano Huerta was seeking recognition.40 T'he important factor is, not that the United States should be favored in these respects, but rather that the thread of the actual main channel should be the boundary. It is a mere accident that the larger, more important tracts lie on the United States side of the present river. Mexico could and should be liberally compensated-and this applies also to individual Mexican owners of lands in these areas who may desire to relinquish holdings that would lie in American territory-in certain 39 The Mexican Section has a list of twenty-one bancos on which holders under Mexican titles have lost their properties to American claimants. •oMexican Embassy to Department of State, Jan. 27, 1913, For. Rels., 1913, pp. 971­ 972. See also ibid., pp. 972-973. It would appear that the United States might have secured a settlement at that time, had President Wilson desired to recognize Huerta. 236 The University of Texas Publication ways for any differences in size or value of areas divided by this arrange­ment between the two states. Such compensation could take the form of money payments, or, preferably, an additional allowance of water in Baja California and the Juarez Valley, or a favorable division of the cost of international dams. Other means of compensation would occur in the actual working out of the plan. To summarize this general conclusion: Measures might well be taken to rectify and stabilize the river channels and to make the thread of the stabilized, controlled channel the actual boundary, which would involve passing to Mexico sovereignty over all American tracts that would be left on the Mexican side and reciprocally for Mexican tracts left on the American side. Furthermore, a special arbitral or mixed claims tribunal should be set up to remedy injuries to title holders occasioned by these and previous transfers. It is difficult to believe that the final settlement of such claims should be left to domestic courts.41 As a sixth conclusion, it is believed that the powers of the Boundary Commission should be increased so as to give it more effective control over situations along the boundary in its entire length, both land and water. The tendency is in that direction already by virtue of giving to it special duties, such as water measurement, land boundary problems, and flood control. The United States by the Act of 1935 bestowed upon the American Section power over the land boundary comparable to the treaty powers over the water portion. It would appear essentially use­less, for example, to engage in diplomatic negotiations preliminary to instructing the two sections to paint or repair or replace a land bound­ary monument. These additional matters could, for the most part, be readily conventionalized. It is suggested, moreover, that the essential connection between developments on the non-boundary portions of the rivers and their tributaries and the solution of strictly boundary prob­lems is so close as to make it advisable to tie the Commission in some way with all such developments. This point may be easily illustrated. The Commission can scarcely reach any agreement on water storage and apportionment if it has no effective control over the water in tributaries in the non-boundary por­tions of the main stream. To have private, or even local public, control 41 No reflection on the courts is intended. They are bound, in the main, by municipal law, and, as suggested above, Ch. VII, they can scarcely be criticised, in view of the preparatory material, for construing the territorial exchanges in the light of clearing clouded sovereignty. At the same time, this construction has been employed thus far exclusively to the disadvantage of holders of Mexican titles. One additional point: Most of the Mexican title holders on banco lands are poor. The cost of carrying cases to the United States Supreme Court is so great as to mean, in effect, that such title holders give up without a struggle or the story ends with the bankruptcy of the owners. It is submitted, with some bluntness, that this is not a situation calculated to reflect credit upon the United States. It appears that when lands are assigned to Mexico, holders under American title ordinarily sell their holdings to Mexican citizens. Boundary Commission, United States and M ea:ico over water in these river basins is to complicate the general picture to an almost hopeless degree. The only alternative, it would seem, is to adopt the principle that each state may use without accountability all the water in tributary streams. It is believed, however, that in the long run the governments will have to consider the river basins as essential units. Furthermore, it seems clear that the present tendency to confer upon the United States Section complete control of the planning and execution of public works along the boundary streams should be con­tinued and extended. The whole problem might be simplified if the two sections were assigned relatively similar powers and functions by their governments. To have boundary functions dispersed among several gov­ernment agencies on the Mexican side and concentrated in the United States Section of the Boundary Commission on the United States side would appear to create unnecessary difficulties. The marked benefits accruing from this concentration on the northern side could profitably be noted and followed by Mexico, a trend which is now in evidence there. It is probable, too, that the administration of all reclamation, irrigation, drainage, and power developments along the boundary por­tions of these streams, at least insofar as to give the Commission effective control over the use, by such developments, of the channel and channel water, should be assigned to the Commission. The seventh conclusion is in large part a restatement of the conclu­sion reached in the chapter on water use and control, that is, that the governments terminate the growing uneasiness and uncertainty in bound­ary communities in regard to the water supply. The situation may be Palm Fore;st near Brownsville (Photograph by the author: July, 1D34) 238 The University of Texas Publication described as urgent and even critical. Almost the entire low-water flow of the Rio Grande is now being used in the Lower Rio Grande Valley in the growing season, and new developments may at any time bring on a crisis. Added to this is the new situation created in the Colorado basin by Boulder Dam and the All-American Canal. New reservoirs now being constructed or planned on the tributaries in Texas and Mexico may further complicate the situation if large projects are developed in connection with them. T'he problem of flood control is corollary to that of water supply. The solution might take the form of a cooperative plan for the conservation and efficient use of the water resources of the two river basins. The part to be played by the two sections of the Commis­sion was indicated in the sixth conclusion. Briefly restated, these two agencies should make all preliminary surveys, gather all needed data, submit a general and detailed plan, supervise all public works on the main stream undertaken by virtue of such plan, and retain at least a consultative capacity in relation to similar works in other parts of the basins to insure that they are properly integrated with the general plan. It is obviously illogical and unscientific to discuss water apportionment before the governments possess the facts on water flow, storage possi­bilities, present uses, and future needs in all areas in both states dependent for water upon the two river systems. It is believed, furthermore, that any international agreement on this general subject should be as practicable as possible. In the first place, it should definitely abandon the theory of navigability; it should, instead, be grounded on the theory that all the water resources of the two basins may be put to beneficial use, and the order of importance of such uses should be stated. There would appear to be no necessary conflict between use for irrigation and use for power. Municipal uses are another mat­ter, but they offer no insuperable obstacle to an agreement. Beyond these factors come the more difficult ones of the tributary streams, the non-boundary portions of main streams, and prior developments. This is not the place to enter into a detailed discussion of these three factors, but the main contentions of the two sections of the Water Commission may be summarized.42 Each state naturally develops a line of argument agreeable to its major interests. Mexico holds that each state may use all of the water in tributaries and half of the flow of the main rivers. Obviously, consid­ering its position in the El Paso-Juarez Valley and in Baja California, Mexico must contend that main streams should be treated differently from tributaries, even as to those portions of main rivers wholly within the territory of a given state. Hence the argument is that Mexico has a clear right to an amount of water from the Colorado equal to the 42These points are treated at some length in Ch. IX. Only for convenience is "state" used in place of "section." Neither government has officially adopted the views of its section. See Report of American Section, p. vii. Boundary Commission, United States and Mexico ratio that its irrigable lands bear to the lands in the United States irri­gable under the same conditions from the main stream. Considering its special interests in the two basins, the United States argues that a state has the right to use all the water resources wholly within its ter­ritory, but that prior developments should be protected regardless of the national source of the water.4 3 The United States offers to protect Mexican developments in Baja California just as similar developments in the Juarez Valley are protected by the Treaty of 1906. On the other hand, the United States urges that prior developments along the Rio Grande below Fort Quitman be protected by supplying adequate water to the main stream in the proportion now supplied by the tributaries. Beyond that each state, so the United States contends, may use all of the water of its Rio Grande tributaries; in addition, the unused flow of the Rio Grande should be stored by international dams. The situation is extremely complex, but it is believed, nevertheless, that a solution can be found that would be satisfactory to both states. First, what would be the lines of an ideal settlement? Assuming that measures are to be taken to store all the unused flow, especially of the Rio Grande, the main lines of such agreement may be stated. First, existing developments on both main streams and tributaries should be protected. In effect, this would make the Treaty of 1906 superfluous and would apply its principle in both basins. Second, let each state con­struct such storage dams as it would on the tributaries and on the non­boundary portions of main streams within its borders, and if more dams on tributaries are needed to store water so as not to overtax the capacity of reservoirs on main streams along the boundary, the states should cooperate in the construction of enough reservoirs substantially to hold the run-off. The only restriction on the use of tributary water would be the obligation to protect prior developments on both tributaries and main streams. This set of reservoirs would, it is believed, conserve enough water to obviate most of the present difficulties about apportionment. Third, in view of the probability that adequate storage would take care of all uses for a long period of years, the effort to make a definite appor­tionment of water might be abandoned; instead, the two commissioners might be endowed with power to control the whole matter as needs arise. It appears fruitless to try to foresee all future needs in the two states. Hence there is ample reason for leaving the matter subject to a flexible administration. This problem is so vital that the governments may wish to saieguard their interests by reserving the right to denounce at least these portions of the convention at the expiration of stated intervals, for example, a first period of ten years, and successive periods thereafter of five years. The point is that all who are conversant with the situa­tion know that adequate storage will supply more than enough water •aNo special mention is made here of the Tia Juana River, of power development, or of the question of use of the flow of the Rio Grande between the International Dam at El Paso and Fort Quitman. The University of Texas Publication for present needs. So why attempt to make hard and fast rules about future possibilities? The right of abrogation would adequately protect each state as to the future. As a matter of fact, control by the commis­sioners, each in his own state, would take the form, as to water flow, largely of regulating the daily, weekly, monthly, and annual discharge from each reservoir in both river basins. F'ourth, this solution implies that the commissioners' authorization and supervision would be essential for all new developments, but the right of abrogation would protect each state in case it should be dissatisfied. Practically viewed, these suggestions are open to grave objections. There would be serious opposition in each state to the concentration of such vast power in an international agency or even in a single national agency. Furthermore, it would probably not be politically feasible to attempt any construction program in Mexico calling for financial assist­ance by the United States. Also it might well be asked whether the power of abrogation of treaties would be any real protection after the completion of the construction program on the tributaries. These and other objections to this ideal solution call for a brief out­line of a more practicable suggestion along more frankly nationalistic lines. Each state should, of course, make every effort to improve the efficiency of its present irrigation developments so as to avoid unnecessary waste of water. For example, it appears that the many independent districts in the Lower Rio Grande Valley should organize an over-all district, the better to assure ample water supplies, or should be supplanted by out­right Federal control or supervision. Likewise, a frank appraisal of the whole water problem in both river basins in the light of difficulties faced by Mexico in attempting to develop its water resources and in seeing its way clear to come to terms with the United States warrants the conclusion that, so far as it is politically and economically feasible, we should proceed independently to construct such works on the American side as will protect our developments while remaining at all times ready and willing to make reasonable adjustments in favor of Mexican interests. The simple fact is that American irrigation developments dependent on boundary streams are too vast to permit the continuation of a state of uncertainty. T'he proper solution has been found in the Colorado basin by the construction of Boulder Dam, auxiliary works, and the All-Ameri­can Canal. The main lines of the West bill44 offer a practicable solution in the Lower Rio Grande Valley. A coordinated flood control, irriga­tion, and water storage program on the Texas side of the Rio Grande is vitally needed and would easily warrant the expenditure of fifty million to seventy-five million dollars. Progress is now being made along the lines of flood control and irrigation. Should it be feasible to store large quantities of water, perhaps 500,000 acre-feet, in all-American reservoirs, the construction of such basins should be undertaken without delay. HSee above, p. 213. Also see map, App. XIII. Boundary Commission, United States and Mexico Shortages, even for municipal uses, have already occurred in dry sea­sons, and existing Mexican gravity-flow headings add greatly to the danger. With the completion of these reservoirs and of the main canal down the left bank of the river to tie in with existing irrigation facili­ties, the "Magic Valley" would be reasonably well protected against disas­trous water shortages. A potential difficulty lies, of course, in the fact, as often stated, that most of the water of the river comes from Mexico and in the technically possible expansion of Mexican uses on the tributaries to the point of serious depletion of the flow of the main stream. But that danger results from the low water capacity of the Rio Grande system and might be protected against to some degree by the construction of main­stream reservoirs in addition to all-American reservoirs. Be all that as it may, there is reason to believe that the Federal Government, with or without an agreement with Mexico, will shortly undertake a huge expansion of its present construction program in the Lower Valley. The fifth point of the ideal solution is also vital. It would have each government, after the fixing and stabilizing of the river channels, con­demn a strip of ground on its side of the whole land and water bound­ary and keep this strip always as public property, thus applying the practice adopted in the river rectification treaty, and by President Theodore Roosevelt :dong the New Mexico-Arizona-California-Mexico boundary wherever there were public lands. This method would remove the constant annoyance of litigation by private parties and of encroach­ments upon the river channels by private interests. Another feature of this fifth point is that all existing irrigation, drainage, flood control, and power projects in these river systems should be nationalized and all such future projects should be undertaken by the respective national govern­ments. Privately owned utility and irrigation companies should be excluded altogether; and present ownership, wherever it exists, by local governments should be replaced by national ownership. The two great basins need international cooperation for their development, and such cooperation can best be assured by removing the clashing interests and insistent pressure of special groups. In spite of the obvious fact that these points regarding a possible solution of the water problem would give the United States more water below Fort Quitman than it contributes to the Rio Grande and Mexico more water in Baja California than it contributes to the Colorado, it is clear that the balance of advantage lies with the United States. The arrangement under the Treaty of 1906 partly off sets this advantage, but the United States would still obtain a larger net superiority after the above factors are considered. Hence, the United States could readily afford to bear the expense of reservoirs on the boundary portions of the main streams in a proportion determined generally according to factors con­sidered in dividing the cost of the river rectification scheme in the El Paso-Juarez Valley. 242 The University of Texas Publication Rectified Channel of Rio Grande (Photog-raph by Louis V. Olson: 1934, copy supplied by Commissioner L. M. Lawson, lnternationa) Boundary Commisi~ion, United States and Mexico) Boundary Commission, United States and Mexico The eighth and last conclusion drawn from the whole study is that a new treaty is probably needed, perhaps an omnibus treaty divided into parts, each devoted to a special feature of the whole land and water boundary. It would replace the pertinent provisions of the treaties of 1848 and 1853, would incorporate those portions of the treaties of 1884, 1889, 1905, and 1906 not inconsistent with the new arrangements, would include the Treaty of 1933, and would conventionalize the new agree­ments in accordance with the policies stated in these several conclusions. Far-reaching and radical as many of these policies may appear to be, it is believed that present practices and developments tend definitely in their direction. Hence, in outlining such policies little more has been done than to attempt the completion of a picture already well begun. Although it is generally believed that, as a practical matter, no omnibus treaty of this character will be negotiated, it should be noted that the United States and Mexico are now exploring the situation with the view of ascertaining the possibility of reaching agreement on certain impor­tant questions. Lacking such a treaty, the chances are that the two states will gradually feel their way toward solutions of all these problems some­what along the lines here indicated. One great advantage in consider­ing all of them as a whole lies in the fact that each state would then have a wider choice in the offering and acceptance of compromises. For example, a territorial adjustment in one part of the treaty may assist in reaching an agreement on the apportionment of water in another part of the treaty. For the United States the only alternative to a Mexican-American cooperative scheme is an all-American program such as has been suggested. It is not compatible with the spirit of the Ameri­can people to stand still and do nothing in the face of difficulties. It may confidently be expected that the all-American program will be pushed to completion with or without an international agreement. This is as it should be, for the United States should control, as far as possi­ble, the water requirements of its citizens along the frontier. Possible international agreements may, therefore, be regarded as supplementary and not as primary; hence, such agreements, viewed in the light of all the realities along the boundary, while ultimately desirable, are not to be thought of as substitutes for appropriate construction programs wholly within the United States. Fortunately for the United States, the United States Section of the International Boundary Commission, with its trained and experienced personnel and its record of successful accomplishments is admirably equipped to administer the all-American as well as the international aspects of the water program. APPENDIX I TREATY OF PEACE, FRIENDSHIP, LIMITS, AND SETTLEMENT BETWEEN THE UNITED STATES OF AMERICA AND THE MEXICAN REPUBLIC Concluded at Guadalupe Hidalgo February 2, 1848; ratified by the President of the United States March 16, 1848; ratifications exchanged May 30, 1848; proclaimed by the President of the United States July 4, 1848. [EXTRACT] ARTICLE V The boundary line between the two Republics shall commence in the Gulf of Mexico, three leagues from land, opposite the mouth of the Rio Grande, otherwise called Rio Bravo del Norte, or opposite the mouth of its deepest branch, if it should have more than one branch emptying directly into the sea; from thence up the middle of that river, following the deepest channel, where it has more than one, to the point where it strikes the southern boundary of New Mexico; thence, westwardly, along the whole southern boundary of New Mexico (which runs north of the town called Paso) to its western termination; thence, northward, along the western line of New Mexico, until it intersects the first branch of the river Gila; (or if it should not intersect any branch of that river, then to the point on the said line nearest to such branch, and thence in a direct line to the same;) thence down the middle of the said branch and of the said river, until it empties into the Rio Colorado; thence across the Rio Colorado, following the division line between Upper and Lower California, to the Pacific Ocean. The southern and western limits of New Mexico, mentioned in this article, are those laid down in the map, entitled "Map of the United Mexican States, as organized and defined by various a.cts of the Congress of said republic, and constructed according to the best authorities. Revised edition. Published at New York, in 1847, by J. Dis­turnell;" of which map a copy is added to this treaty, bearing the signatures and seals of the undersigned Plenipotentiaries. And, in order to preclude all difficulty in tracing upon the ground the limit separating Upper from Lower California, it is agreed that the said limit shall consist of a straight line drawn from the middle of the Rio Gila, where it unites with the Colorado, to a point on the coast of the Pacific Ocean, distant one marine league due south of the southernmost point of the port of San Diego, according to the plan of said port made in the year 1782 by Don Juan Pantoja, second sailing master of the Spanish fleet, and published at Madrid in the year 1802, in the atlas to the voyage of the schooners Sutil and Mexicana; of which plan a copy is hereunto added, signed and sealed by the respective Plenipotentiaries. In order to designate the boundary line with due precision, upon authoritative maps, and to establish upon the ground landmarks which shall show the limits of both republics, as described in the present article, the two Governments shall each appoint a commissioner and a surveyor, who, before the expiration of one year from the date of the exchange of ratifications of this treaty, shall meet at the port of San Diego, and proceed to run and mark the said boundary in its whole course to the mouth of the Rio Bravo del Norte. They shall keep journals and make out plans of their operations; and the result agreed upon by them shall be deemed a part of this treaty, and shall have the same force as if it were inserted therein. The two Governments will amicably agree regarding what may be necessary to these persons, and also as to their respective escorts, should such be necessary. The boundary line established by this article shall be religiously respected by each of the two republics, and no change shall ever be made therein, except by the express and free consent of both nations, lawfully given by the General Government of each, in conformity with its own constitution. Boundary Commission, United States and Mexico ARTICLE VII The river Gila, and the part of the Rio Bravo del Norte lying below the southern boundary of New Mexico, being, agreeably to the fifth article, divided in the middle between the two republics, the navigation of the Gila and of the Bravo below said boundary shall be free and common to the vessels and citizens of both countries; and neither shall, without the consent of the other, construct any work that may impede or interrupt, in whole or in part, the exercise of this right; not even for the purpose of favouring new methods of navigation. Nor shall any tax or contribution, under any denomination or title, be levied upon vessels or persons navigating the same, or upon merchandise or effects transported thereon, except in the case of landing upon one of their shores. If, for the purpose of making the said rivers navigable, or for maintaining them in such state, it should be necessary or advantageous to establish any tax or contribution, this shall not be done without the consent of both Governments. The stipulations contained in the present article shall not impair the territorial rights of either republic, within its established limits. ARTICLE XXI If unhappily any disagreement should hereafter arise between the Governments of the two republics, whether with respect to the interpretation of any stipulation in this treaty, or with respect to any other particular concerning the political or com­mercial relations of the two nations, the said Governments, in the name of those nations, do promise to each other, that they will endeavour, in the most sincere and earnest manner, to settle the differences so arising, and preserve the state of peace and friendship, in which the two countries are now placing themselves, using, for this end, mutual representations and pacific negotiations. And if, by these means, they should not be enabled to come to an agreement, a resort shall not, on this account, be had to reprisals, aggression, or hostility of any kind, by the one republic against the other, until the Government of that which deems itself aggrieved shall have maturely considered, in the spirit of peace and good neighbourship, whether it would not be better that such difference should be settled by the arbitration of commissioners appointed on each side, or by that of a friendly nation. And should ~uch course be proposed by either party, it shall be acceded to by the other, unless deemed by it altogether incompatible with the nature of the difference, or the circum­stances of the case. APPENDIX II TREATY BETWEEN THE UNITED STATES OF AMERICA AND THE MEXICAN REPUBLIC RELATIVE TO THE BOUNDARY LINE, THE TRANSIT OF PERSONS ACROSS THE ISTHMUS OF TEHUANTEPEC, ETC. Concluded at the City of Mexico December 30, 1853; ratified by the President of the United States June 29, 1854; ratifications exchanged at Washington June 30, 1854; proclaimed June 30, 1854. [EXTRACT] ARTICLE I The Mexican Republic agrees to designate the following as her true limits with the United States for the future: Retaining the same dividing line between the two Californias as already defined and established, according to the 5th article of the treaty of Guadalupe Hidalgo, the limits between the two republics shall be as follows: Beginning in the Gulf of Mexico, three leagues from land, opposite the mouth of the Rio Grande as provided in the fifth article of the treaty of Guadalupe Hidalgo; thence, as defined in the said article, up the middle of that river to the point where the parallel of 31° 47' north latitude crosses the same; thence due west one hundred miles; thence south to the parallel of 31° 20' north latitude, thence along the said parallel of 31° 20' to the lllth meridian of longitude west of Greenwich; thence in a straight line to a point on the Colorado River twenty English miles below the junction of the Gila and Colorado Rivers; thence up the middle of the said river Colorado until it intersects the present line between the United States and Mexico. For the performance of this portion of the treaty, each of the two Governments shall nominate one commissioner, to the end that, by common consent, the two thus nom­inated, having met in the city of Paso de! Norte, three months after the exchange of the ratifications of this. treaty may proceed to survey and mark out upon the land the dividing line stipulated by this article, where it shall not have already been ~urveyed and established by the mixed commission, according to the treaty of Guada­lupe, keeping a journal and making proper plans of their operations. For this purpose, if they should judge it necessary, the contracting parties shall be at liberty each to unite to its respective commissioner scientific or other assistants, such as astronomers and surveyors, whose concurrence shall not be considered necessary for the settlement and ratification of a true line of division between the two republics; that line shall be alone established upon which the commissioners may fix, their consent in this particular being considered decisive and an integral part of this treaty, without neces­i:;ity of ulterior ratification or approval, and without room for interpretation of any kind by either of the parties contracting. The dividing line thus established shall, in all time, be faithfully respected by the two Governments, without any variation therein, unless of the express and free consent of the two, given in conformity to the principles of the law of nations, and in accordance with the constitution of each country, respectively. In consequence, the stipulation in the fifth article of the treaty of Guadalupe upon the boundary line therein described is no longer of any force, wherein it may conflict with that here established, the said line being considered annulled and abolished wherever it may not coincide with the present, and in the same manner remaining in full force where in accordance with the same. Boundary Commission, United States and Mexico ARTICLE IV The prov1s10ns of the 6th and 7th articles of the treaty of Guadalupe Hidalgo having been rendered nugatory for the most part by the cession of territory granted in the first article of this treaty, the said articles are hereby ahrogated and annulled, and the provisions as herein expressed substituted therefor. The vessels and citizens of the United States shall, in all time, have free and uninterrupted passage through the Gulf of California, to and from their possessions situated north of the boundary line of the two countries. It teing understood that this i;assage is to be by navigating the Gulf of California and the river Colorado, and not by land without the express consent of the Mexican Government; and precisely the same provisions, stipulations, and restrictions, in all respects, are hereby agreed upon and adopted, and shall he ~crupulously observed and enforced, by the two contracting Governments, in reference to the Rio Colorado, so far and for such distance as the middle of that river is made their common boundary line, by the first article of this treaty. The several provisions, stipulations, and restrictions contained in the 7th article cf the treaty of Guadalupe Hidalgo shall remain in force only so far as regards the Rio Bravo de! Norte, below the initial of the said boundary provided in the first article of this treaty; that is to say, helow the intersection of the 31° 47' 30" parallel of latitude, with the boundary line established by the late treaty dividing said river from its mouth upwards, according to the fifth article of the treaty of Guadalupe. APPENDIX III CONVENTION BETWEEN THE UNITED STATES OF AMERICA AND THE UNITED STATES OF MEXICO TOUCHING THE INTERNATIONAL BOUNDARY LINE WHERE IT FOLLOWS THE BED OF THE RIO GRANDE AND THE RIO COLORADO Concluded at Washington November 12, 1884; ratification advised by the Senate June 23, 1886; ratified by the President of the United States July 10, 1886; ratifications exchanged at Washington September 13, 1886; proclaimed September 14, 1886. [EXTRACT] Whereas, in virtue of the Vth article of the Treaty of Guadalupe Hidalgo between the United States of America and the United States of Mexico, concluded February 2, 1848, and of the first article of that of December 30, 1853, certain parts of the dividing line between the two countries follow the middle of the channel of the Rio Grande and the Rio Colorado, to avoid difficulties which may arise through the changes of channel to which those rivers are subject through the operation of natural forces, the Government of the United States of America and the Government of the United States of Mexico have resolved to conclude a convention which shall lay down rules for the determination of such questions, and have appointed as their Plenipotentiaries: The President of the United States of America, Frederick T. Frelinghuysen, Secre­tary of State of the United States; and the President of the United States of Mexico, Matias Romero, Envoy Extraordinary and Minister Plenipotentiary of the United Mexican States; Who, after exhibiting their respective Full Powers, found in good and due form, have agreed upon the following articles: ARTICLE I The dividing line shall forever be that described in the aforesaid Treaty and follow the center of the normal channel of the rivers named, notwithstanding any alterations in the banks or in the course of those rivers, provided that such alterations be effected by natural causes through the slow and gradual erosion and deposit of alluvium and not by the abandonment of an existing river bed and the opening of a new one. ARTICLE II Any other change, wrought by the force of the current, whether by the cutting of a new bed, or when there is more than one channel by the deepening of another channel than that which marked the boundary at the time of the survey made under the aforesaid Treaty, shall produce no change in the dividing line as fixed by the surveys of the International Boundary Commission in 1852, but the line then fixed shall continue to follow the middle of the original channel bed, even though this become wholly dry or be obstructed by deposits. ARTICLE III No artificial change in the navigable course of the river, by building jetties, piers, or obstructions which may tend to deflect the current or produce deposits of alluvium, or by dredging to deepen another than the original channel 'under the treaty when there is more than one channel, or by cutting waterways to shorten the navigable distance, shall be permitted to affect or alter the dividing line as determined by the aforesaid Commission of 1852 or as determined by Article I hereof and under the Boundary Commission, United States and Mexico reservation therein contained; but the protection of the banks on either side from erosion by revetments of stone or other material not unduly prajecting into the current of the river shall not be deemed an artificial change. ARTICLE IV If any international bridge have been or shall be built across either of the rivers named, the point on such bridge exactly over the middle of the main channel as herein determined shall be marked by a suitable monument, which shall denote the dividing line for all the purposes of such bridge, notwithstanding any change in the channel which may thereafter supervene. But any right other than in the bridge itself and in the ground on which it is built shall in event of any such subsequent change be determined in accordance with the general provisions of this convention. ARTICLE V Rights of property in respect of lands which may have become separated through the creation of new channels as defined in Article II hereof, shall not be affected thereby, but such lands shall continue to be under the jurisdiction of the country to which they previously belonged. In no case, however, shall this retained jurisdictional right affect or control the right of navigation common to the two countries under the stipulations of Article VII <'f the aforesaid treaty of Guadalupe Hidalgo; and such common right shall continue without prejudice throughout the actually navigable main channels of the said rivers, from the mouth of the Rio Grande to the point where the Rio Colorado ceases to be the international boundary, even though any part of the channel of said rivers, through the changes herein provided against, may be comprised within the territory of one of the two nations. APPENDIX IV CONVENTION BETWEEN THE UNITED STATES OF AMERICA AND THE UNITED STATES OF MEXICO TO FACILITATE THE CARRYING OUT OF THE PRINCIPLES CONTAINED IN THE TREATY OF NOVEMBER 12, 1884, AND TO A VOID THE DIFFICULTIES OCCASIONED BY REASON OF THE CHANGES WHICH TAKE PLACE IN THE BEDS OF THE RIO GRANDE AND THE COLORADO RIVER Signed at Washington March 1, 1889; ratification advised May 7, 1890; ratified by the President of Mexico, October 31, 1889; ratified by the President of the United States, December 6, 1890; ratifications exchanged December 24, 1890; proclaimed December 26, 1890. (EXTRACT) ARTICLE I All differences or questions that may arise on that portion of the frontier between the United States of America and the United States of Mexico where the Rio Grande and the Colorado rivers [sic] form the boundary line, whether such differences or questions grow out of alterations or changes in the bed of the aforesaid Rio Grande and that of the aforesaid Colorado River, or of works that may be constructed in said rivers, or of any other cause affecting' the boundary line, shall be submitted for examination and decision to an International Boundary Commission, which shall have exclusive jurisdiction in the case of said differences or questions. ARTICLE II The International Boundary Commission shall be composed of a Commissioner appointed by the President of the United States of America, and of another appointed by the President of the United States of Mexico, in accordance with the constitutional provisions of each country, of a Consulting Engineer, appointed in the same manner by each Government, and of such Secretaries and Interpreters as either Government may see fit to add to its Commission. Each Government separately shall fix the salaries and emoluments of the members of its Commission. ARTICLE III The International Boundary Commission shall not transact any business unless both Commissioners are present. It shall sit on the frontier of the two contracting countries, and shall establish itself at such places as it may determine upon; it shall, however, repair to places at which any of the difficulties or questions mentioned in this convention may arise, as soon as it shall have been duly notified thereof. ARTICLE IV When, owing to natural causes, any changes shall take place in the bed of the Rio Grande or in that of the Colorado River, in that portion thereof wherein those rivers form the boundary line between the two countries, which may affect the boundary line, notice of that fact shall be given by the proper local authorities on both sides to their respective Commissioners of the International Boundary Commission, on receiving which notice it shall be the duty of the said Commission to repair to the place where the change has taken place or the question has arisen, to make a personal examination of such change, to compare it with the bed of the river as it was before the change took place, as shown by the surveys, and to decide whether it has occurred Boundary Conimission, United States and Mexico through avulsion or erosion, for the effects of Articles I and II of the convention of November 12th, 1884; having done this, it shall make suitable annotations on the surveys of the boundary line. ARTICLE V Whenever the local authorities on any point of the frontier between the United States of America and the United States of Mexico, in that portion in which the Rio Grande and the Colorado River form the boundary between the two countries, shall think that works are being constructed, in either of those rivers, such as are prohibited by Article III of the convention of November 12, 1884, or by Article VII of the Treaty of Guadalupe Hidalgo of February 2, 1848, they shall so notify their respective Commissioners, in order that the latter may at once submit the matter to the International Boundary Commission, and that said Commission may proceed, in accordance with the provisions of the foregoing article, to examine the case, and that it may decide whether the work is among the number of those which are permitted, or of those which are prohibited by the stipulations of those treaties. The Commission may provisionally suspend the construction of the works in ques­tion pending the investigation of the matter, and if it shall fail to agree on this point, the works shall be suspended at the instance of one of the two Governments. ARTICLE VI In either of these cases, the Commission shall make a personal examination of the matter which occasions the change, the question or the complaint, and shall give its decision in regard to the same, in doing which it shall comply with the requirements established by a body of regulations to be prepared by the said Commission and approved by both Governments. ARTICLE VII The International Boundary Commission shall have power to call for papers and information, and it shall be the duty of the authorities of each of the two countries to send it any papers that it may call for, relating to• any boundary question in which it may have jurisdiction in pursuance of this convention. The said Commission shall have power to summon any witnesses whose testimony it may think proper to take, and it shall be the duty of all persons thus summoned to appear before the same and to give their testimony, which shall be taken in ac­cordance with such by-laws and regulations as may be adopted by the Commission and approved by both Governments. In case of the refusal of a witness to appear, he shall be compelled to do so, and to this end the Commission may make use of the ~ame means that are used by the courts of the respective countries to compel the attendance of witnesses, in conformity with their respective laws. ARTICLE VIII If both Commissioners shall agree to a decision, their judgment shall be considered binding upon both Governments, unless one of them shall disapprove it within one month reckoned from the day on which it shall have been pronounced. In the latter case, both Governments shall take cognizance of the matter, and shall decide it amicably, bearing constantly in mind the stipulation of Article XXI of the treaty of Guadalupe Hidalgo of February 2, 1848. The same shall be the case when the commissioners shall fail to agree concerning the point which occasions the question, the complaint or the change, in which case each commissioner shall prepare a report, in writing, which he shall lay before his Government. APPENDIX V CONVENTION BETWEEN THE UNITED STATES AND MEXICO FOR THE ELIMINATION OF THE BANCOS IN THE RIO GRANDE FROM THE EFFECTS OF ARTICLES I AND II OF THE TREATY OF NOVEMBER 12, 1884 Signed at Washington March 20, 1905; ratification advised by the Senate February 28, 1907; ratified by the President March 13, 1907; ratified by Mexico March 15, 1907; ratifications exchanged at Washington May 31, 1907; proclaimed June 5, 1907. (EXTRACT] Whereas, for the purpose of obviating the difficulties ar1smg from the application of Article V of the Treaty of Guadalupe-Hidalgo, dated February 2, 1848, and Article I of the Treaty of December 30, 1853, both concluded between the United States of America and Mexico-difficulties growing out of the frequent changes to which the beds of the Rio Grande and Colorado River are subject-there was signed in Wash­ington on November 12, 1884, by the Plenipotentiaries of the United States and Mexico, a convention containing the following stipulations: "Article 1.-The dividing line shall forever be that described in the aforesaid Treaty and follow the center of the normal channel of the rivers named,. notwith­standing any alterations in the banks or in the course of those rivers, provided that such alterations be effected by natural causes through the slow and gradual erosion and deposit of alluvium and not by the abandonment of an existing river bed and the opening of a new one. "Article II.-Any other change, wrought by the force of the current whether by the cutting of a new bed, or when there is more than one channel by the deepening of another channel than that which marked the boundary at the time of the survey made under the aforesaid Treaty, shall produce no change in the dividing line as fixed by the surveys of the International Boundary Commission in 1852, but the line then fixed shall continue to follow the middle of the original channel bed, even though this should become wholly dry or be obstructed by deposits." Whereas, as a result of the topographical labors of the Boundary Commission created by the Convention of March 1, 1889, it has been observed that there is a typical class of changes effected in the bed of the Rio Grande, in which, owing to slow and gradual erosion, coupled with avulsion, said river abandons its old channel and there are separated from it small portions of land known as "bancos" bounded by the said old bed, and which, according to the terms of Article II of the aforementioned Convention of 1884, remain subject to the dominion and jurisdiction of the country from which they have been separated; Whereas, said "bancos" are left at a distance from the new river bed, and, by reason of the successive deposits of alluvium, the old channel is becoming effaced, the land of said "bancos" becomes confused with the land of the "bancos" contiguous thereto, thus giving rise to difficulties and controversies, some of an international and others of a private character; Whereas, the labors of the International Boundary Commission undertaken with the object of fixing the boundary line with reference to the "bancos," have demonstrated that the application to these "bancos" of the principle established in Article II of the Convention of 1884 renders difficult the solution of the controversies mentioned, and, instead of simplifying, complicates the said boundary line between the two countries: Therefore, the Governments of the United States of America and the United States of Mexico, being desirous to enter into a convention to establish more fitting rules for the solution of such difficulties, have appointed as their Plenipotentiaries-­ Boundary Commission, United States and Mexico That of the United States of America, Alvey A. Adee, Acting Secretary of State of the United States; That of the United States of Mexico, its Ambassador Extraordinary and Pleni­potentiary, Licenciado Don Manuel de Aspiroz; Who, after exhibiting their full powers, found to be in good and due form, have agreed to the following articles : ARTICLE I The fifty-eight (58) bancos surveyed and described in the report of the consulting engineers, dated May 30, 1898, to which reference is made in the record of proceedings of the International Boundary Commission, dated June 14, 1898, and which are drawn on fifty-four (54) maps on a scale of one to five thousand (1 to 5,000), and three index maps, signed by the Commissioners and by the Plenipotentiaries appointed by the convention, are hereby eliminated from the effects of Article II of the Treaty of November 12, 1884. Within the part of the Rio Grande comprised between its mouth and its confluence with the San Juan River the boundary line between the two countries shall be the broken red line shown on the said map-that is, it shall follow the deepest channel of the stream-and the dominion and jurisdiction of so many of the aforesaid fifty­eight (58) bancos as may remain on the right bank of the river shall pass to Mexico, and the dominion and jurisdiction of those of the said fifty-eight (58) bancos which may remain on the left bank shall pass to the United States. of America. ARTICLE II The International Commission shall, in the future, be guided by the principle of elimination of the bancos established in the foregoing article, with regard to the labors concerning the boundary line throughout that part of the Rio Grande and the Colorado River which serves as a boundary between the two nations. There are hereby excepted from this provision the portions of land segregated by the change in the bed of the said rivers having an area of over two hundred and fifty (250) hectares, or a population of over two hundred (200) souls, and which shall not be considered as bancos for the purposes of this treaty and shall not be eliminated, the old bed of the river remaining, therefore, the boundary in such cases. ARTICLE III With regard to the bancos which may be formed in future, as well as to those already formed but which are not yet surveyed, the Boundary Commission shall proceed to the places where they have been formed, for the purpose of duly applying Articles I and II of the present convention, and the proper maps shall be prepared in which the changes that have occurred shall be shown, in a manner similar to that employed in the preparation of the maps of the aforementioned fifty-eight ( 58) bancos. As regards these bancos, as well as those already formed but not surveyed, and those that may be formed in future, the Commission shall mark on the grd.und, with suitable monuments, the bed abandoned by the river, so that the boundaries of the bancos shall be clearly defined. On all separated land on which the successive alluvium deposits have caused to disappear those parts of the abandoned channels which are adjacent to the river, each of the extremities of said channel shall be united by means of a straight line to the nearest part of the bank of the same river. ARTICLE IV The citizens of either of the two contracting countries who, by virtue of the stipu­lations of this convention, shall in future be located on the land of the other may The University of Texas Publication remain thereon or remove at any time to whatever place may suit them, and either keep the property which they possess in said territory or dispose of it. Those who prefer to remain on the eliminated bancos may either preserve the title and rights of citizenship of the country to which the said bancos formerly belonged, or acquire the nationality of the country to which they will belong in the future. Property of all kinds situated on the said bancos shall be inviolably respected, and its present owners, their heirs, and those who may subsequently acquire the property legally, shall enjoy as complete security w:th respect thereto as if it belonged to citizens of the country where it is situated. APPENDIX VI A CONVENTION BETWEEN THE UNITED STATES AND MEXICO, PROVID­ ING FOR THE EQUITABLE DISTRIBUTION OF THE WATERS OF THE RIO GRANDE FOR IRRIGATION PURPOSES Concluded at Washington Ma-y 21, 1906; ratified by the Pres:dent of the United States, December 26, 1908; ratifications exchanged January 16, 1907; proclaimed by the President of the United States January 16, 1907. The United States of America and the United States of Mexico being desirous to provide for the equitable distribution of the waters of the Rio Grande for irrigation purposes, and t-0 remove all causes of controversy between them in respect thereto, and being moved by considerations of international comity, have resolved to conclude a Convention for these purposes and have named as their Plenipotentiaries: The President of the United States of America, Elihu Root, Secretary of State of the United States; and The President of the United States of Mexico, His Excellency Sefior Don Joaquin D. Casasus, Ambassador Extraordinary and Plenipotentiary of the United States of Mexico at Washington; Who, after having exhibited their respective full powers, which were found to be in good and due form, have agreed upon the following articles: ARTICLE I After the completion of the proposed storage dam near Engle, New Mexico, and the distributing system auxiliary thereto, and as soon as water shall be available in said system for the purpose, the United States shall deliver to Mexico a total of 60,000 acre-feet of water annually, in the bed of the Rio Grande at the point where the head works of the Acequia Madre, known as the Old Mexican Canal, now exist above the city of Juarez, Mexico. ARTICLE II The delivery of the said amount of water shall be assured by the United States and shall be distributed through the year in the same proportions as the water supply proposed to be furnished from the said irrigation system to lands in the United States in the vicinity of El Paso, Texas, according to the following schedule, as nearly as may be possible : Corresponding Acre-feet cubic feet of per month water January ----------------------------------------------------------------------------------------0 0 February --------------------------------------------------------------------------------___ .. 1,090 47,480,400 March -----------------------------------------------_______ ------------------------------_ ____ 5,460 237,837,600 April ------------------__ ---------------------------------------------------------------------_ 12,000 522,720,000 May ----------------------------------------------------------------------------------------------12,000 522,720,000 June -----------------------------------------------------------------------------________________ _ 12,000 522,720,000 July -----------------------------------------------------------------------------------------_ ___ 8,180 356,320,800 August ----------------------------------------------------------------------------------------__ 4,370 190,357,200 September ------------------------------------------------------------------------------------3,270 142,441,200 October ----------------------------------------------------------------------------------------1,090 47,480,400 November -----------------------------------------------------------------------------------540 23,522,400 December --------------------------------------------------------------------------------------0 0 Total for the year ----------------------------------------------------------------60,000 2,613,600,000 In case, however, of extraordinary drought or serious accident to the irrigation f:ystem in the United States, the amount delivered to the Mexican Canal shall be The University of Texas Publica.tion diminished in the same proportion as the water delivered to lands under said irriga­tion system in the United States. ARTICLE III The said delivery shall be made without cost to Mexico, and the United States agrees to pay the whole cost of storing the said quantity of water to h€ delivered to Mexico, of conveying the same to the international line, of measuring the said water, and of delivering it in the river bed above the head of the Mexican Canal. It is understood that the United States assumes no obligation beyond the delivering of the water in the bed of the river above the head of the Mexican Canal. ARTICLE IV The delivery of water as herein provided is not to be construed as a recognition by the United States of any claim on the part of Mexico to the said waters; and it is agreed that in consideration of such delivery of water, Mexico waives any and all claims to the waters of the Rio Grande for any purpose whatever between the head of the present Mexican Canal and Fort Quitman, Texas, and also declares fully settled and disposed of, and hereby waives, all claims heretofore asserted or existing, or that may hereafter arise, or be asserted, against the United States on account of any clamages alleged to have been sustained by the owners of land in Mexico, by reason of the diversion by citizens of the United States of waters of the Rio Grande. ARTICLE V The United States, in entering into this treaty, does not thereby concede, expressly or by implication, any legal basis for any claims heretofore asserted or which may be hereafter asserted by reason of an,y losses incurred by the owners of land in Mexico due or alleged to be due to the diversion· of the waters of the Rio Grande within the United States; nor does the United States in any way concede the establishment of any general principle or precedent by the concluding of this treaty. The under­f.tanding of both parties is that the arrangement contemplated by this treaty extends only to the portion of the Rio Grande which forms the international boundary, from the head of the Mexican Canal down to Fort Quitman, Texas, and in no other case. ARTICLE VI The present Convention shall be ratified by both contracting parties in accordance with their constitutional procedure, and the ratifications shall be exchanged at Washington as soon as possible. In witness whereof, the respective Plenipotentiaries have signed the Convention both in the English and Spanish languages and have thereunto affixed their seals. Done in duplicate at the City of Washington, this 21st day of May, one thousand nine hundred and six. ELIHU ROOT (Seal.) JOAQUIN D. CASASUS (Seal.) APPENDIX VII CONVENTION BETWEEN THE UNITED STATES OF AMERICA AND THE UNITED MEXICAN STATES FOR THE RECTIFICATION OF THE RIO GRANDE (RIO BRAVO DEL NORTE) IN THE EL PASO­JUAREZ VALLEY Signed at Mexico City, February 1, 1933; ratified by the President of the United States, October 20, 1933; ratified by Mexico, Octoter 6, 1933; ratifications ex­changed at Washington, November 10, 1933; proclaimed by the President of the United States, November 13, 1933. The United States of America and the United Mexican States having taken into consideration the studies and engineering plans carried on by the International Boundary Commission, and specially directed to relieve the towns and agricultural lands located within the El Paso-Juarez Valley from flood dangers, and securing at the same time the stabilization of the international boundary line, which, owing to the present meandering nature of the river it has not been possible to hold within the mean line of its channel; and fully conscious of the great importance involved in the matter, both from a local point of view as well as from a good international understanding, have resolved to undertake, in common agreement and cooperation, the necessary works as provided in Minute 129 (dated July 31, 1930) of the Inter­national Boundary Commission, approved by the two Governments in the manner provided by treaty; and in order to give legal and final form to the project, have named as their plenipotentiaries: The President of the United States of America, J. Reuben Clark, Jr., Ambassador Extraordinary and Plenipotentiary of the United States of America to Mexico; and The President of the United Mexican States, Doctor Jose Manuel Puig Casauranc, Secretary of State for Foreign Affairs; Who, after having communicated their respective full powers and having found them in due and proper form, have agreed en the following articles: I The Government of the United States of America and the Government of the United Mexican States have agreed to carry out the Rio Grande rectification works provided for in Minute 129 of the International Boundary Commission and annexes thereto, approved by both Governments, in that part of the river beginning at the point of intersection of the present river channel with the located line as shown in map, exhibit No. 2 of Minute 129 of said Commission (said intersection being south (•f Monument 15 of the boundary polygon of Cordoba Island) and ending at Box Canyon. The terms of this convention and of Minute 129 shall apply exclusively to river rectification within the limits above set out. The two Governments shall study such further minutes and regulations as may be ~ubmitted by the International Boundary Commission and, finding them acceptable, shall approve same in order to carry out the material execution of the works in accordance with the terms of this Convention. The works shall be begun after this Convention becomes effective. II For the execution of the works there shall be followed the procedure outlined in the technical study of the project. The works shall be begun and shall be carried The University of Texas Publication on primarily from the lower end, but at the same time and for reasons of necessity works may be carried on in the upper sections of the valley. III In consideration of the difference existing in the benefits derived by each of the contracting countries by the rectification works, the pro-ratable cost of the works will be defrayed by both Governments in the proportion of eighty-eight per cent (88% ) by the United States of America and of twelve per cent (12 % ) by the United Mexican States. IV The direction and inspection of the works shall be under the International Boundary Commission, each Government employing for the construction of that portion of the work it undertakes, the agency that in accordance with its administrative organization Hhould carry on the work. v The International Boundary Commission shall survey the ground to be used as the right of way to be occupied by the rectified channel, as well as the parts to be cut from both sides of said channel. Within thirty days after a cut has been made, it shall mark the boundaries on the ground, there being a strict superficial compensa­tion in total of the areas taken from each country. Once the corresponding maps have been prepared, the Commission shall eliminate these areas from the provisions of Article II of the Convention of November 12, 1884, in similar manner to that adopted in the Convention of March 20, 1905 for the elimination of bancos. VI For the sole purpose of equalizing areas, the axis of the rectified channel shall be the international boundary line. The parcels of land that, as a result of these cuts or of merely taking the new axis of the channel as the boundary line, shall remain on the American side of the axis of the rectified channel shall be the territory and property of the United States of America, and the territory and property of the United Mexican States those on the opposite side, each Government mutually sur­ rendering in favor of the other the acquired rights over such parcels. In the completed rectified river channel-both in its normal and constructed sections -and in any completed porti9n thereof, the permanent international boundary shall be the middle of the deepest channel of the river within such rectified river channel. VII Lands within the rectified channel, as well as those which, upon segregation, pass from the territory of one country to that of the other, shall be acquired in full ownership by the Government in whose te.rritory said lands are at the present time; and the lands passing as provided in Article V hereof, from one country to the other, shall pass to each Government respectively in absolute sovereignty and ownership, and without encumbrance of any kind, and without private national titles. VIII The construction of works shall not confer on the contracting parties any property rights in or any jurisdiction over the territory of the other. The completed work shall constitute part of the territory and shall be the property of the country within which it lies. Each Government shall respectively secure title, control, and jurisdiction of its half of the flood channel, from the axis of that channel to the o:uter edge of the acquired Boundary Commission, United State~ and Mexico 259 right of way on its own side, as this channel is described and mapped in the Inter­national Boundary Commission Minute number 129, and the maps, plans, and specifica­tions attached thereto, which Minute, maps, plans, and specifications are attached hereto and made a part of this Convention.* Each Government shall permanently retain full title, control, and jurisdiction of that part of the flood channel constructed as described, from the deepest channel of the running water in the rectified channel to the outer edge of such acquired right of way. IX Construction shall be suspended upon request of either Government, if it be proved that the works are being constructed outside of the conditions herein stipulated or fixed in the approved plan. x In the event there be presented private or national claims for the construction or maintenance of the rectified channel, or for causes connected with the works of recti­fication, each Government shall assume and adjust such claims as arise within its own territory. XI The International Boundary Commission is charged hereafter with the maintenance and preservation of the rectified channel. To this end the Commission shall submit, for the approval of both Governments, the regulations that should be issued to make effective said maintenance. XII Both Governments bind themselves to exempt from import duties all materials, implements, equipment, and supplies intended for th11 works, and passing from one country to the other. XIII The present Convention is drawn up both in the English and Spanish languages. XIV The present Convention shall be ratified by the High Contracting .Parties in ac­cordance with their respective laws, and the ratification shall be exchanged in the City of Washington as soon as possible. This Convention will come into force from the date of the exchange of ratifications. In witness wheroof the Plenipotentiaries mentioned above have signed this Con­vention and have affixed their respective seals. Done in duplicate at the City of Mexico this first day of February one thousand nine hundred and thirty-three. (Seal.) (Seal.) J. REUBEN CLARK, JR. PUIG ANNEX International Boundary Commission, United States and Mexico, Mexico City, July 31, 1930 Minute No. 129 Subject: Report on Rio Grande Rectification. The Commission met in the conference room at the Department of Foreign Rela­tions, Mexico City, at 10 o'clock A.M. July 31, 1930, in accordance with Minute No. 128, *Only Minute number 129 is included here. The University of Texas Publication to complete its action in reporting and recommending a plan for Rio Grande rectifica­tion. (1) Each section cf the International Boundary Commission has been requested by the Foreign Relations Department of its Government to study and develop an international plan for the removal of the flood menace of the Rio Grande from the El Paso-Juarez Valley. Studies and investigations have now reached the point where it is possible to report to the two Governments a definite plan with estimates of cost; and the following is the repOTt of the International Boundary Commissioners, together with a joint report prepared by the consulting engineers and technical advisers. Minute No. 111 of the Joint Commission, dated December 21, 1928, outlined in a general way the necessities for international action and gave a general descrip­tion of the areas involved, a preliminary summary of the proposed plan and recom­mended proceeding with the development of the final details of the plans and esti­mates. During the past few months a most important step taken by the Commission consisted in rendering decis'ons determining the national jurisdiction and dominion of a number of banco cases in the area under consideration. (2) The plan prepared and developed by the Joint Commission is attached hereto as an exhibit to this minute. In transmitting it to the two Governments the com­missioners offer it as being both practical and feasible as an engineering and economic project. In general the plan consists of straightening the present river channel, effecting decrease in length from one hundred and fifty-five ( 155) miles to eighty-eight (88) miles, and confining this channel between two parallel levees. In addition to this channel the plan includes the construction of a flood retention dam at the only available site, twenty-two (22) miles below Elephant Butte on the Rio Grande, creating reservoir storage of 100,000 acre-feet. Careful studies based on. actual past flood performance show the advantage of reducing the flood flow reaching El Paso-Juarez by storage in the proposed reservoir. The reduction in flood flow through the El Paso­Juarez Valley accomplished by such storage of flood waters effects a saving of a quarter of a million dollars in the works required through the valley by decreasing the size of the channel and reducing the area required for right-of-way, and amount of yardage in levees. (3) The meandering and uncontrolled Rio Grande below El Paso-Juarez has in recent years become a very serious menace to adjacent lands on both sides. Authorities of both countries have unsuccessfully attempted the protection of the improvements in the El Paso-Juarez Valley and the two cities. Considering the futility of providing adequate and proper protection on the present meandering river location, the two affected communities have expended the limit of a reasonable and justifiable amount in local flood protection works. A proper and sound plan for accomplishing desired results lies in a coordinated international project. ( 4) Existing treaties i::rovide for the center of the Rio Grande, except in isolated cases, being the international boundary line. The present river channel, with excessive length, was produced by natural conditions which no longer exist. Increase in settle­ment, cultivation and values justify both Governments in considering means of removing the flood menace and providing an adequate flood channel. ( 5) Actual field surveys were continued in the location on the ground of a rectified channel subject, of course, to some later slight modification, but generally sufficiently definite to permit estimates of right-of-way and construction costs. With office and field location of this channel line, which generally follows and straightens the present meandering river, it has been possible to estimate acreages and values of the relatively ~mall areas that would be detached from one country and attached to the other­so balanced in area that neither country would gain nor lose national territory. (6) At the present time the bed of the Rio Grande between El Paso and Juarez is at a higher elevation than some of the streets and other properties of the two cities. Accumulations of sediment are continuing to aggravate this situation, and until proper grades and hydraulic conditions are introduced by artificial works, there are no means Boundary Commission, United States and Mexico for carrying off these deposits which are encroaching upon the carrying capacity of the channel. The consensus of opinion of engineers who have studied the situation iE that the correction lies in the plan proposed of straightening and confining the channel. One of the principal requirements to permit such artificial rectification is the equitable adjustment of the areas which would be necessarily detached from one side of the river and attached to the other in the straightening process. The plan evolved, of having each Government acquire the private titles to these equal areas for later exchange, provides a feasible solution. These areas to be acquired are generally seeped and water logged, and so shaped and situated as to be unsusceptible of proper irrigation and drainage. (7) The benefits to be derived from this straightening and rectified channel plans are mutual to the two Governments in affording flood protection and in permitting cultivation, improvements and settlement of even larger areas adjoining the Rio Grande than are now possible under the meandering river conditions. It is of utmost importance that the Governments own and control the flood channel in order that private encroachments be definitely prevented and eliminated. Such ownership and control will also be of great assistance in the enforcement of national immigration and customs laws of both countries. (8) In giving consideration to the determination of proper and justifiable proration of costs between the two countries, conditions other than gross and irrigated areas are necessarily included. Economic features and values in the two countries are distinct and different. While the use of areas may be entirely proper in a distribution of costs for irrigation development, this unit of proration for an international flood­cc.ntrol is unsuitable and produces serious irregularities. The Commission has taken into consideration the benefits that each country would receive according to the areas and their values to be protected rather than the benefits each would receive on the sole :icreage basis. On the American side of the valley there are about fifty-three thou­sand ( 53,000) acres of land under the Rio Grande Federal irrigation project with water rights assured; the greater part of which is in full cultivation, and about seventeen thousand ( 17 ,000) acres in the lower portion of the valley below the project limits which are irrigated with project surplus water. The total irrigated area is seventy thousand (70,000) acres. This area is served with irrigation and drainage works, and first-class roads. Finance companies facilitate the financing of the pro­duction and distribution of agricultural products. (9) On the Mexican side of the valley there are about thirty-five thousand (35,000) acres of land in cultivation, of which twenty thousand (20,000) acres have assured water rights under the Rio Grande Federal irrigation project, provided for by the Water Treaty of 1906. Practically no drainage works have been constructed and the irrigation works are largely insufficient. The productiveness of the lands on the Mexican side is under these circumstances much less than the corresponding lands on the north side of the river, and there are large areas with insignificant or no production. No major road improvements exist, and the finance companies organized to serve Mexican farmers are very limited in number and resources. The industrial plants and means for handling agricultural products are in very small proportion when compared with those in the valley in the United States. (10) The estimated value of agricultural investments in the American part of the valley, according to figures assembled by the Bureau of Reclamation, including purchase of land and its preparation, farm improvements, equipment and live stock, is seven­teen million dollars ($17,000,000) or thirty-four million gold pesos. The value of agricultural improvements on the Mexican side as estimated by Engineer Salvador Arroyo, Chief of the Flood Protection Work, is five million four hundred thousand ( 5,400,000) gold pesos. Comparing these agricultural values in one part of the valley with those in the other, it is seen that the Mexican side represents thirteen per cent of the total and the American e'.ghty-seven per cent. Valley lands on either side of the river without water rights and assured irrigation service have very nominal The University of Texas Publication value as compared with the lands obtaining water service from project sources; a comparison of such areas on this basis results in tweney-seven per cent for Mexico and seventy-three per cent for the United States. (11) As the cities and suburbs of El Paso and Juarez not only are included in the flood protection plan, but either directly or indirectly would receive a large part of the benefits of the rectification of the channel, the Commission has considered the proration of values which each city bears to the other and giving proper weights to various percentages, believes the justifiable proration to be twelve (12) per cent for Mexico and eighty-eight (88) per cent for the United States. (12) With reference to the estimates (exhibit number five of the engineers' report) the grand total of six million, one hundred six thousand five hundred dollars ($6,106,500) includes certain items in which the Commissioners concur as being non­proratable and properly and practically chargeable to each Government separately. These are: rights-of-way four hundred twelve thousand five hundred dollars ($412,500), for purchase of private channel rights above Cordova seventy-five thou­sand dollars ($75,000), segregated tracts two hundred sixty-six thousand dollars ($266,000), changes in irrigation works two hundred twenty-five thousand dollars ( $225,000). The total of these items, with twenty per cent overhead and contingencies is one million one hundred seventy-four thousand two hundred dollars ( $1,17 4,200). This amount subtracted from the grand total leaves a proratable total of four million nine hundred thirty-two thousand three hundred dollars ($4,932,300). Using twelve (12 % ) per cent and eighty-eight (88% ) per cent as the basis of proration Mexico's share of the cost of the project would be five hundred ninety-one thousand eight hundred seventy-six dollars ($591,876) and that of the United States four million three hundred forty thousand four hundred twenty-four dollars ($4,340,424). (13) On the basis that this report and the engineers' statement have been prepared and submitted with the view of generally straightening the present river location between the International Dam above El Paso-Juarez and the Box Canyon below Fort Quitman, the question of using the present river at Fabens or following the boundary route on the south of the San Elizario area is left for later determination. From the data at hand, apparently there is argument in favor of both routes. Follow­ing either the present river or the boundary line route requires adjustment of detached areas, and the proposed channel below this section can be so located as to compensate for any inequalities of such areas. (14) The following are the recommendations of the Commission : (a) The Commissioners recommend that the two Governments approve the plan for river rectification as outlined in the attached engineering report, including the feature of the flood retention dam, the general straightening of the present river location and the establishment of a flood channel which generally will follow and straighten the present river from International Dam to the Box Canyon below Fort Quitman. (b) That both countries in view of the serious situation proceed to an agreement, without delay, which will carry into effect the engineering and construction features as outlined in the attached report. (c) That the International Boundary Commission be authorized to prepare detail plans, and to direct and supervise the construction and all other engineering opera­tions, utilizing such established governmental agencies as each Government may deem proper. (d) That each section of th~ International Boundary Commission be authorized to acquire for its country the necessary rights-of-way and detached areas located within its territorial limits through the proper governmental agencies. (e) That agreement between the two Governments provide for the exchange of one-half of the area required for right-of-way and the total area of detached tracts of each country. Boundary Commission, United Sta.tes and Mexico (f) That the total proratable cost of four million nine hundred thirty-two thousand three hundred dollars (4,932,300) be divided between Mexico and the United States on the basis cf twelve (12'/< ) per cent and eighty-eight (88% ) per cent respectively, and that each Government provide annually such required appropriations as will complete the work in four or five years. (g) That the agreement between the two countries provide for the jurisdiction of the International Boundary Commission over all matters concerning the rectified channel. (h) That this commission be authorized to adopt such rules and regulations as it may deem necessary to the end that the preservation of the rectified channel may< be perpetuated. (i) That each country hold the other immune from all private or national claims arising from the construction and maintenance of the rectified channel or any other cause whatsoever in connection with this project. Respectfully submitted. The commission adjourned to meet again at the call of either of the commissioners. (Sgd.) L. M. Lawson, Commissioner for the United States. (Sgd.) Gustavo P. Serrano, Commissioner for Mexico. ( Sgd.) Mervin B. Moore, Acting Secretary of the United States Section. ( Sgd.) Jose Hernandez Ojeda, Secretary of the Mexican Section. APPENDIX VIII RULES AND REGULATIONS OF THE COMMISSION ARTICLE l Neither the Engineers nor the Secretaries shall have the right to vote on any ques­tion at issue, but the Engineers, when requested by their respective Commissioners, shall furnish any information or report, either verbally or in writing regarding any question at issue, which reports shall be recorded in the journal, either briefly or in detail. But where their reports are too extended or comprise maps and plans, they will be submitted in duplicate for filing and reference in the journal; in which case the report shall bear the number of the case to which it refers. ARTICLE II The Joint Commission shall keep a journal of all its proceedings in duplicate (one copy for each Commission [sic], each copy in both English and Spanish, and the proceedings of each meeting or session shall be duly signed by both Commissioners and attested by the Secretaries, each Secretary keeping one of the two journals. ARTICLE Ill The record shall embrace everything material that occurs at each meeting. ARTICLE IV The final decision in each case shall be made in duplicate and in both languages, duly signed by both Commissioners and attested by their Secretaries, one copy to be forwarded to each Government within three days after signing. ARTICLE V The cases will be presented alternately by both Commissioners except when one side only has cases to submit. ARTICLE VI If the examination made by the Commissioners or by the Engineers, is not considered sufficient to come to an intelligent decision, the Commissioners may ask testimonial or documentary evidence, appointing sufficient time in each case, taking distance into consideration. ARTICLE VII The testimony of witnesses shall be taken according to the laws of their respective countries. ARTICLE VIII The witness may be examined not only by the Commissioner who brings him, but by the other one on all matters pertinent to the general investigation. ARTICLE IX The evidence furnished by the witnesses shall be included in the journal of the day on which they are examined, briefly or in detail, if either of the Commissioners so desire, according to Article III of these regulations. Boundary Commission, United States and Mexico ARTICLE X In each case, where it shall be determined that the river has separated from the true boundary line, the two points of separation and a sufficient number of inter­mediate points shall be marked by suitable monuments to identify said boundary line. ARTICLE XI The annotations on the maps as indicated in Article IV of the convention of March 1st, 1889, shall be authorized by the Commissioners of both countries. ARTICLE XII After approval of these regulations by both Governments, the Commissioners shall notify the proper local authorities of their respective nations, of the organization of the Commission, calling their attention to Articles IV ancl V of the Convention of March 1st, 1889. Approved: Washington, February 12, 1894. W. Q. GRESHAM, Secretary of State. ADDITIONAL ARTICLE ARTICLE XIII. In all cases presented by either Commissioner, the original proceed­ings shall be taken down in the language of his country, and he shall have the right to call meetings from day to day of four hours each day, if he shall have business for that time (he to name the hour of meeting) until the business is completed, each day's proceedings to be signed before adjournment of that day; and on final completion of the case, the other Commissioner shall have three days within which time to produce the translation, on failure of which the Commissioner who presented the case may forward a single copy in the language of his country to his government for approval or rlisapproval. Approved June 14th, 1898. WILLIAM R. DAY. APPENDIX IX LIST OF BANCOS ELIMINATED Note: Banco No. 4% developed after the survey of 1898; bancos 50 and 54 di.:;­appeared between the date of their survey and the date of their elimination by the Treaty of 1905. NO. NAME ACRES C UT FROM IINHAB­1 ITANTS YEAR U.S.A. MEXICO I. RIO GRANDE Lower Rio Grande Valley ' 1. Burrita ---------------------­-----------------­ 23.7 0 1895 2. San Juan de Arriba --­--­---­-----­ 23.2 0 1885 3. Longorefio ---------------------------------­ 138.1 20 1876 4. La Canasta ------­-----­----­------------­- 126.5 0 1895 4 % . Fernandez -------------------------------­ 224.1 12 1860 5. Trevino Canales ----­----­------­------­ 249.3 3 1892 6. Phillips ---------------------------------------­ 111.4 8 1875 7. Tahuachalito -----------------­---­-­-----­ 178.9 3 1861 8. La Isla ---------------------------------------­ 157.9 2 1857 189783.0 0 9. Tahuachal --------------------------------­ 130.2 0 1874 10. Benavides ---------------------------------­ 11. Rafael Garcia 1863 28.2 0 1897 223.1 18 12. Fresnal ---------------------------------------­ 1864 137.6 0 13. Capote ---------------------------------------­ 29.4 1887 0 14. Llanito -----------------------------------·---­ 1880 79.6 0 15. Combe -----------------------------------------­ 6 1897 62.3 16. Panola ---------------------------------------­ 1869 207.6 0 17. Mainero -------------------------------------­ 134.4 12 1874 18. Las Sierritas ---------------------------­ 105.0 1894 0 19. Las Rusias -------------------------------­ 1855 129.5 8 20. Las Tranquitas -----------------------­ 125.8 0 1893 21. Venado ---------------------------------------­ 1891 32.1 0 22. Turner ---------------------------------------­ 221.6 1859 0 23. Solisefio -------------------------------------­ 76.8 0 1876 24. Villitas ---------------------------------------­ 198.2 0 1872 25. Palma -----------------------------------------­ 238.2 20 1860 26. El Zurr6n ---------------------------------­ 192.5 0 1860 27. La Bolsa -------------------------------------­ 41.3 0 1863 28. Cantu ---··-------------------------------------­ 153.2 0 1857 29. Villarreales -------------------------------­ 283.2 20 1880 30. Santa Margarita ---------------------­ 272.1 0 1888 31. Rosario ----------------------··----------------­ 140.8 10 1885 32. Toluca ---------------------------------------­ 336.8 10 1880 33. Arguelles -----------------------------------­ 40.5 0 1860 34. Santa Juanita ---------------------------­ 93.2 1882 35. Eurestes -------------------------------------­ 0 51.6 36. Blanco ---------------------------------------­ 0 1886 381.8 20 1893 37. Las Bonitas -------------------------------­ 155.7 38. Santa Rita ---------------------------------­ 8 1882 132.7 39. Longoria -··---------------------------------·· 1872 0 40. San Juan del Rio 31.9 0 1890 48.2 41. Cigarillo -------------------------------------­ 0 1894 157.2 4 1884 42. Juanita ---------------------------------------­ 43. Santa Cruz 338.5 10 1881 207.3 8 1870 44. Grangeno ---------------------------------·--­ 43.0 0 45. Anzaldua -----------------------------------­ 1876 55.8 0 46. Maria Inez -------------------------------­ 1880 16.6 47. Lomitas -------------------------------------­ 0 1884 212.0 0 48. King -------------------------------------------­ 1869 68.2 0 49. Ojo de Agua -----------------------------­ 1855 160.6 0 1862 51. Garza -----------------------------------------­ 0 1864 52. Pedro Vela --------------------------------94.9 Boundary Commission, United States and Mexico NO. NAME ACRES CUT FROM U.S.A. MEXICO INHAB­ITANTS YEAR 53. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70. 71. 72. 73. 74. 75. 76 . 77. 78. 79. 80. 81. 82. 83. 84. 85. 86. 87. 88. 89. 90. 91. 92. 93. 94. 95. 96. 97. 98. 99. 100. 101. 102. 103. 104. 105. 106. 107. 108. 109. 110. 111. 112. 113. 114. 115. 116. 117. Antonio Vela -----­---------------­-----­Santo Domingo --­---------­-------­--­Garza ----­--------­----­------­-­-------------­Camargo -­-------­--­--­--­---­----------­y zaguirre ---------­-----------------------­La Puerta ----------­-------------­------­-San Francisco -----­-------------------­Salado --­---------­--­------­------­---------Artesitas --­------­--­--­--------­___ ____ __ _ Los Ebanos ------------­------------­--­---Tobasco --­--­-----­---­-------------------­-­Tortuga -----­----­---------------­----------· Dougherty --------­---------­-------------­J alisco -­-­-­----------­--­--­----·---------­-­Zolezzi --------­-----­----------------·-----­----Santander ------------­----­-----------­----Saenz ---------------­----------------------------Cipres ---­--­--­-------------------------·· ---­-­Celaya ------------­------­-------------------­Rosita ------------------­-------­--·­--------­--Campamento -----­----------­-­------­---­Carmen ---------------­-------­-----­---­---­Las Prietas ---­---­---------------------­Santa Rosalia -------­--------------·----­Los Naranjos -----­----·----------------­San Martin ---------------­--­------­-----· ~~lji~e~~~t~__ :::::::::::::::::::::::::::::::: Grulla ---------------------------------------­-­Havana -----------­-----------------­------­--­Closner ---------------------------------------­Coyote -------------------­-------------------­Santa Anita -----------------------------­San Pedro -----­----------­----·--------­--­San Miguel --------­-----­---------------­­Monterrey ---------­-­--------------------­-Casas -----­--­---------­-----------------­_ _ Las Adjuntas --·-­----­--­-­-­-----­----­El Refugio -­-------------­--------------­­El Barrito --·----------------------­------­La Chicharra --------­-----------------­-Santos -----------------------------------------­Cuevitas -------------------------------------­Caballero -----­-------­-----­--­-------------Reynosa --------­-----­------­---------·-----­La Chapeiia ------­------------­-----------­Kelly -----­----------­--­---------­-------------­Rancho Nuevo ----­--------------------­Young ---­-------­-­-------------------­--­--·-­Rancho Viejo ____ _ -------------------­-Singleterry ------­-----------------­-------Ratamal ---­------­-­----­---------­----­----­Pena Flora --­--­----------------------­---Tenacitas -­--­----­--­------­-­--------------Puertas Verdes -­-­-------------------­Agua Negra ------­------­-­-----­----­-­­San Isidro ----------------­---­------------­Sabinito -----------­---­-------­-------------­Llano Grande --­--­------­-------------­­Las Moras --­-----­-­-------­-­--­-----­-­Galvan ---------------­---------­------­---­-­­La Feria -­-----­-------­------------------­-Champion -­---------­--------­---------­----­Pacheco -----------­---­------­-------­------­ ' 112. 2 494.0 320.5 74.4 449.7 120.1 44.0 49.9 105.8 68.0 23.7 117.6 57.6 85.0 54.9 256.0 110.9 119.1 54.4 85.5 49.9 95.9 194.2 30.4 96.9 29.4 110.9 54.6 28.9 362.0 111.7 151.7 302.7 212.3 474.7 97.4 51.6 49.2 46.2 51.9 144.1 60.3 30.6 56 .3 32.1 138.4 221.7 221.7 272.0 51.4 66.2 93.4 184.1 68.9 146.3 21.0 47.0 60.0 110.9 64.5 135.5 71.9 15.8 71.2 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 6 0 2 0 0 6 0 0 2 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 6 0 3 0 0 0 0 0 0 17 0 0 14 0 4 1865 1866 1897 1892 1897 1909 1907 1909 1900 1899 1907 1860 1904 1909 1904 1902 1905 1905 1900 1905 1909 1905 1905 1900 1900 1905 1900 1886 1910 1910 1910 1910 1881 1865 1865 1905 1915 1924 1919 1917 1919 1921 1918 1922 1919 1922 1924 1922 1924 1919 1922 1919 1924 1924 1924 1916 1922 1919 1914 1922 1920 1920 1916 1925 The University of Texas Publication ACRES CUT FROM INHAB­ NO. NAME U.S.A. MEXICO ITANTS YEAR 0 1923 118. Vaqueteria --------------------------------48.2 30 1920 119. Guerra --·--------------------------------------142.8 7 1925 120. La Soledad ----------------------------------75.2 0 1924 121. Matamoros ----------------------------------96.9 18 1925 122. Los Tomates ------------------------------83.8 0 1925 123. Los Borregos -----------------------___ _ 19.3 0 1912 124. San Joaquin ------------------------------45.0 3 1922 125. Las Comas -----------------------------___ _ 35.3 17 1914 126. El Rincon ------------------------------------47.9 0 1924 127. El Palmito ----------------------------------143.1 0 1913 128. Stell-Lind ----------------------------------91.4 0 1918 129. Bagdad ----------------------------------------200.7 0 1927 130. Valadeces ------------------------------------296.3 2 1927 131. Jeronimo ------------------------------------90.9 4 1928 132. La Pascualilla ----------------------------76.5 2 1930 133. Morales --------------------------------------81.8 134. El Morillo ------------------___________ _ 118.7 0 1931 4 1932 135. Hollinsworth ----------------------------_ 122.1 136. Villarreales Segundo _____________ _ 278.1 0 1933 13 1938137. Lozano ---------------------------------------­240.2 Rl Paso-Juarez Valley 41 1911 301. Weber ------------------------------------------168.5 O* 1898 302. San Lorenzo ------------------------------434.5 0 1902 303. Bermudez ------------------------------------228.5 0 1904 304. Azcarate ------------------------------------96.1 305. Compaiiia Agricola ____ _ __ __ _____ __ _ 120.6 6 1916 0 1906 306. La Piedra ----------------------------------62.7 0 1906 307. Max Miiller --------------------------------27.2 0 1905 308. La Cachanilla ----------------------------45.5 309. Rincon de Marcelino ___ _ __________ _ 267.7 30 1875 310. Arroyo de! Alamo ___________________ _ 214.0 0 1905 0 1905 311. Newman --------------------------------------65.9 0 1905 312. Gallego ----------------------------------------51.6 313. Camp Rice --------------------------------646.4t Ot 1886 314. N ufiez ------------------------------------------174.2 10 1886 315. Charles Davis ----------------------------393.5 0 1903 0 1907 316. El Calero ------------------------------------41.7 317. Pruitt ------------------------------------------41.5 0 1905 318. El Diablo -----------------------------------95.9 0 1926 319. El Guayuco ----------------------------------337.6 0 1926 320. El Diablo Segundo ________ ___________ _ 41.0 0 1930 Presidio Valley 401. La Rana ------------------------------------108.2 1890 402. El Pilon __ _____ __ __________________________ _ 41.7 1891 403. Galindo -----------------------------________ _ 168.5 1903 404. Haciendita _____________ ___________________ _ 405. Ojinaga ______ ----------------------------­ 407. Aguilar ______ --------------------------------­ 408. Tabalopa -----------------------------------­ 409. Quibira ---------------------------------------­ 410. Los Puliques ____ ------------------------­ 411. San Rafael ______________________________ _ 412. El Mulato ---------------------------------­ 413. Ochoa -----------------------------------------­ 414. El Jazmin --------------------------------­ Canyon Section of Rio Grande 601. El Carino -----------------------------------­ 11. COLORADO RIVER Colorado Valley 501. Farmers ---------------------------_________ _ 502. Fain ---------------------------------__________ _ 313.2 85.0 321.3 7.4 69.2 367.0 312.1 104.3 249.6 49.2 582.4 259.0 16 4 0 0 0 0 0 0 104 13 1906 1896 1917 1919 1917 1914 1917 1917 1884 1890 1905 1902 *None in 1898-over 300 in 1930. tNone in 1886-66 in 1925. tArea in 1907: 578 acres. APPENDIX X BIBLIOGRAPHY I. Primary Material A. American Official Sources. Congressional Record, Washington: Government Printing Office, 1874­Department of Commerce, Fifteenth Census of the United States: 19.'f(): Irrigation of Agricultural Lands, Washington: Government Printing Office, 1932. Department of the Interior, Surface Water SumJly of the United States, 1938, Part 9 : Colorado River Basin, Geological Survey Water-Supply Paper 859, Washington: Government Printing Office, 1939. Department of State, Archives, Mexican Boundary, envelopes 1-62. ------, Chamizal Arbitration, Case of the United States of America and Portfolio of Maps, Washington : Government Printing Office, 1911. ------, Chamizal Arbitration, Appendix to the Case of the United States of America, Washington: Government Printing Office, 1911, 2 vols. ------, Chamizal Arbitration, Countercase of the United States of America with Appendix and Portfolio of Maps, Washington : Government Printing Office, 1911. -----, Chamizal Arbitration, Argument of the United States of America, Washington: Government Printing Office, 1911. ------, Chamizal Arbitration, Minutes of the International E>nmdary Com­mission, June 10 and 15, 1915, Containing the Award in the Chamizal Case, Dissenting Opinions of the American and Mexican Commissioners, and the Protest of the Agent of the United States, Washington: Government Printing Office, 1911. ------, Pavers Relating to the Foreign Relations of the United States, Washington: Government Printing Office, 1870-. ------, Press Releases. ------, Proceedings of the International Boundary Commission, United States and Mexico, American Section: Elim.ina.tion of Bancos, Treaty of 1905, Second Series-Nos. 59 to 89, n. p.: 1911. ------, Proceedings of the International Boundary Commission, United States and Mexico, American Section: Elimination of Bancos under Convention of March 20, 1.905, Colorado River Nos. 501 and 502. Rio Grande Nos. . 90 to 131, Inclusive, n. p.: 1929. ------, Proceedings of the International Boundary Commission, United States and Mexico, American Section: Elimination of Fifty-Seven Old Bancos Specifically Described in the Treaty of 190.5, Washington: Byron S. Adams, 1910. ------, Proceedings of the International Boundary Commission, United States and Mexico, A·merican Section: Joint Report of the Consulting Engineers on Field Operations of 1910-1911; Sii]Jplemental Report of the American Consult­ing Enginee1· (cover title: Survey of the Rio Grande, Roma to the Gulf of Mexico), Washington: n. p.: 1913. ------, Proceedings of the International Boundary Commission, United States and Mexico: Elimination of Bancos under Convention of March 20, 1.905, El Paso-Juarez Valley. Rio Grande Nos. 301 to 319 Inclusive, Fourth Series, n. p.: 1931. ------, Proceedings of the International Boundary Commission, United States and Mexico : Monumentation of the Railroad Bridges between Browns­ ville, Te~as, and Matamoros, Tamruulipas, and Laredo, Texas, and Nuevo Laredo, Tamaulipas, n. p.: n. d. The University of Texas Publication ------, Proceedings of the International Eoundary Commission, United Sta,tes and Mexico, Relating to the Diversion of Rio Grande by American Rio Grande Land and Irrigation Compa.ny near Hore.on Ranch, Tamaulipas, Mex­ ico, n. p.: n. d. ------, Proceedings of the International Boundary Commission, United States and Mexico, Relating to the Placing of Additional Mo?tmnents to More Perfectly Mark the International Boundarry Line Through the Towns of Douglas, Arizona, and Agua Prieta, Sonora, n. p.: n. d. ------, Proceedings of the International Boundary C01nmission, United States and Mexico, Relating to the Placing of Additional Monum.ents to More Perfectly Mark the International Boundary Line Through the Town of Naco, Arizona-Sonora, n. p.: 1907. ------, Proceedings of the International Boundary Commission, United States and Mexico, Relating to the Placing of an AdJditional Monument to More Perfectly Mark the International Boundary Line Through the Towns of Calexico, California, and Mexicali, Baja. Californ.ia, and the Restoration of International Monument No. 221, Near Those Towns, Washington: Byron S. Adams, n. d. ------, Proceedings of the International (Water) Boundary Commission, United States and Mexico, Treaties of 1884 and 1889: Equitable Distribution of the Waters of the Rio Grande, Washington: Government Printing Office, 1903, 2 vols. ------, International Boundary Commission, United States and Mexico, Water Bulletin: Flow of the Rio Grande and Tributary Contributions, n. p.: n. d., one issued for each year, beginning with No. 1 in 1932 for 1931. ------, International (Water) Boundary Commission, (£11·ownsville and Matamoros Jetties, Reports and Decisions, Washington : Government Printing Office, 1895. ------, International (Water) Boundary Commission, United States and Mexico, Treaties of 1884 and 1889, Complete Proceedings of the Joint Commission in the Case No. 10, Known as "The Island of San Elizario," Embracing the Joint Journal, the Reports of the Engineers, with Maps, and the Final Approval of the Two Governments, with the Letter of Transmittal of the United States Commissioner, n.p.: n.d. General Laws of the State of Texas, Thirty-eiuhth Legislature, Regular Session, Austin: Baldwin Sons, 1923. Hearings before the Corrvmittee on Flood Control, House of Representatives, on H. R. 6091, February 25, 1935, 74th Congress, 1 session, Washington: Govern­ment Printing Office, 1935. Hearings before the Committee on Foreign Affairs, House of Representatives, on H. R. 8371, April 17, 1924, 68th Congress, 2 se~sion, Washington: Government Printing Office, 1924. Hearings before the Committee on Foreign Affairs, House of Representatives, on H. R. 9998 and H. R. 11768, 74th Congress, 2 session, Washington: Govern­ment Printing Office, 1936. International Boundary Commission, United States and Mexico, Treaties, Joint Rules Governing the Commission, Personnel, Washington: Government Printing Office, 1929. ------, Unpublished Joint Journals and Minutes (filed in the Office of the American Section in El Paso and the Office of the Mexican Section in Ciudad Juarez). ------, United States Section, Report of the Commissioner for the Fiscal Year Ending June 30, 19-. (filed in the Office of the American Section in El Paso), unpublished, one filed for each year, beginning with 1924. ------, American Section,. Treaties Between United States and Mexico Relating to Boundaries, 1848-1905, Washington: Byron S. Adams, n.d. Boundary Commission, United States and Mexico Malloy, W. M., Treaties, Conventions, International Acts, Protocols and Agree­ments between the United States of America and Other Powers, Washington: Government Printing Office, 1910-1923, 3 vols. (third volume by Charles). National Resources Committee, Regional Planning, Part VI-The Rio Grande Joint Investigation in the Uppe1· Rw Grande Basin in Colorado, New Mexico, and Texas, 1936-1937, Washington: Government Printing Office, 1938, 2 vols. Official Register of the United States, Washington: Government Printing Office. Opinions of the Attorneys General of t.he United States, Washington: Morrison, 1852-1870; Government Printing Office, 1873-. Revised Civil Statutes of the State of Texas Adopted by the Thirty-ninth Legis­lature, Regular Session, Austin: Baldwin & Sons, 1925, 2 vols. Richardson, James (ed.), A Compilation of the Messages and Papers of the Presi­dents, made under the direction of the Joint Committee on Printing of the House and the Senate, New York: Publishing Bureau of National Literature, 1908, 11 vols. Statutes at Large of the United States of America, Boston: Little, Brown & Co., 1850-1873; Washington: Government Printing Office, 1875-. United States Congressional Documents. Executive Documents 34 Cong., 1 sess., XIV (861-862), No. 135, 2 vols. Report of the United States-Mexican boundary survey made under the direction of the Secre­tary of the Interior by Major William H. Emory, 1857. 36 Cong., 1 sess., XIV (1058), No. 90. Report upon the Colorado River of the West, June 5, 1860. 45 Cong., 2 sess., XVII (1809), No. 84. Report of Col. Hatch on the subject of El Paso troubles, May 8, 1878. 45 Cong., 2 sess., XVII (1809), No. 93. Report of commission to investigate El Paso troubles in Texas, May 28, 1878. House Documents 54 Cong., 1 sess., XLVII (3414), No. 101. Report on preliminary exam­ination of the Colorado River between the mouth of the Virgin River and Yuma, Dec. 27, 1895. 54 Cong., 1 sess., XLVII (3414), No. 125. Letter, Col. Anson Mills to the Secretary of State, Dec. 10, 1888, regarding an International Dam in Rio Grande River [sic], near El Paso, Texas. 54 Cong., 2 sess., XXIX (3505), No. 118. Report on examination of the Colorado River, Arizona, Dec. 19, 1896. 56 Cong., 2 sess., LX (4134), No. 67. Report on examination of the Colo­ rado River between El Dorado Canyon and Rioville, Nev., Dec. 5, 1900. 57 Cong., 2 sess., XIII (4428), No. 154. Department of State papers in regard to equitable distribution of waters of the Rio Grande, Feb. 14, 1903. 58 Cong., 2 sess., XLVI (4672), No. 204. Report of examination of Colorado River from Yuma to the Mexican boundary, Dec. 18, 1903. 58 Cong., 2 sess., XLVI (4672), No. 237. Report of examination of Colorado River from El Dorado Canyon to Rioville, Nev., Dec. 18, 1903. 58 Cong., 3 sess., LI (4830), No. 204. Report on use of waters of the Lower Colorado River for irrigation, Jan. 9, 1905. 58 Cong., 3 sess., XCVIII (4877), No. 463. Proceedings of Second Conference of Engineers of the Reclamation Service, 1905. 59 Cong., 2 sess., Lil (5155), No. 548. Department of State estimate of appropriation for carrying out convention with Mexico for equitable dis­tribution of waters of the Rio Grande, Jan. 23, 1907. 61 Cong., 2 sess., CXXXIII (5836), No. 972. Message from President Taft regarding appropriation to relieve situation on Lower Colorado River June 25, 1910. ' The University of Texas Publication 62 Cong., 2 sess., CXXXIX (6321) , No. 504. Message from the Presidcnf; transmitting data of the work of the Interior Department and accompany­ing papers, Feb. 2, 1912. 63 Cong., 2 sess., XXV (6622), No. 1141. Report on preliminary examination of Colorado River, California and Arizona, Aug. 7, 1914. 63 Cong., 2 sess., XXV (6622), No. 1144. Report on preliminary examination of the Rio Grande from Velarde, N.M., to the 6th standard parallel south, New Mexico meridian, Aug. 8, 1914. 63 Cong., 3 sess., CIII (6888), No. 1476. Report on plan for protection of Imperial Valley, California, against overflows of the Colorado River, Aug. 15, 1914. 64 Cong., 1 sess., CXLIV (7098), No. 586. Report on plan for protection of Imperial Valley, California, Jan. 13, 1916. 67 Cong., 4 sess., XLIV (8215), No. 551. Survey of Rio Grande for pro­tection from floods, Feb. 6, 1923. 69 Cong., 2 sess., II (8735), No. 676. Department of State report to the end that legislation may be enacted to extend the authority of the Com­mission on Equitable Use of the Waters of the Lower Rio Grande to enable it to deal with the waters of the Lower Colorado, Feb. 2, 1927. 70 Cong., 1 sess., I (8897), No. 149. Water Boundary, United States and Mexico, Jan. 25, 1928. 70 Cong., 2 sess., LXVIII (9071), No. 636. Upper Colorado River and its utilization, report by Robert Follansbee, 1929. 71 Cong., 2 sess. (9233), No. 359. Report of American Section, International Water Commission, United States and Mexico, April 21, 1930. 75 Cong., 1 sess. (10115), No. 140. Public Works Planning. House Executive Documents 47 Cong., 1 sess., XXII (2030), No. 180. Communications relative to a con­vention for defining the boundary between the United States and Mexico from the Rio Grande to the Pacific Ocean, April 21, 1882. 51 Cong., 2 sess., XXV (2855), No. 18. Report on preliminary examination of the Colorado River, Ariz., Dec. 2, 1890. House M-iscellaneous Docu1nents 53 Cong., 2 sess., XXXIX (3267), No. 212, 6 vols. History and Digest of the International Arbitrations to which the United States has been a Party, by J. B. Moore, 1898. House Reports 50 Cong., 1 sess., IV (2601), No. 1008. Committee on Foreign Affairs report on proposed International Boundary Commission with Mexico, March 10, 1888. 51 Cong., 1 sess., II (2808), No. 490. Select Committee on Arid Lands report on Irrigation, International Boundary, and Mexican Relations, Feb. 27, 1890. 55 Cong., 2 sess., III (3719), No. 598. Foreign Relations Committee report on Resolution calling for proceedings of International Water Boundary Commission, March 2, 1898. 58 Cong., 3 sess., III (4762), No. 3990. Committee on Foreign Affairs report relative to construction of dam and reservoir on Rio Grande near Engle, N.M., Jan. 26, 1905. 68 Cong., 1 sess., III (8228), No. 666. Committee on Foreign Affairs report on equitable use of waters of the Rio Grande below Fort Quitman, Texas, May 6, 1924. 69 Cong., 2 sess., I (8688), No. 1657. Committee on Irrigation and Reclama­tion report on Boulder Canyon Reclamation Project, Dec. 22, 1926-Jan. 26, 1927. Boundary Commission, United States and M e:rico 69 Cong., 2 sess., II (8689), No. 1951. Committee on Foreign Affairs report regarding study relative to equitable use of waters of Lower Colorado River and Lower Rio Grande in cooperation with Mexico, Feb. 3, 1927. 72 Cong., 1 sess., II (9492), No. 1025. Economy report regarding abolition of the International Water Commission, April 8, 1932. Senate Documents 54 Cong., 2 sess., III (3469), No. 56. Power to Recognize the Independence of a New Foreign State. 55 Cong., 2 sess., XXI (3610), No. 229. Reports in response to resolution calling for information regarding equitable distribution of waters of the Rio Grande, April 7, 1898. 55 Cong., 2 seEs., XXIII-XXIV (3612-3613), No. 247. Report of the Boundary Commission upon the survey and re-marking of the boundary between the United States and Mexico west of the Rio Grande, 1891-1896. 56 Cong., 2 sess., V ( 4033), No. 104. History of the Rio Grande Dam and Irrigation Company and the Elephant Butte Dam case, Jan. 22, 1901. 57 Cong., 2 sess., XIII (4428), No. 154. Report Regarding Equitable Dis­ tribution of the Waters of the Rio Grande, Feb. 14, 1903. 59 Cong., 2 sess., IV (5071), No. 212. Message from President Roosevelt relative to the threatened destruction by overflow of the Colorado River in the Imperial Valley, Jan. 12, 1907. 60 Cong., 1 sess., VIII (5241), No. 246. Irrigation in Imperial Valley, California: Its Protlems and Possibilities, by C. E. Tait, Feb. 11, 1908. 65 Cong., 1 sess., XI (7265), No. 103. The Colorado River and its relation to the Imperial Valley, California, by C. E. Grunsky, June 1, 1917. 67 Cong., 2 sess., XI (7977), No. 142. Problems of Imperial Valley and Vicinity. 69 Cong., 1 sess., II (8558), No. 113. Glen Canyon-Bridge Canyon Dam Project and Arizona High-Line Canal. 70 Cong., 2 sess. (8989), No. 186. Colorado River Development. 72 Cong., 1 sess., I (9520), No. 44. Flood Control at Nogales, Arizona­ Mexico. 75 Cong., 3 sess. (10246), No. 226. Appropriations, Budget Estimates, Etc. Senate Executive Documents 32 Cong., 1 sess., IX (620), No. 60. Report of the Secretary of the Interior of the charges preferred against the present commissioner appointed to run and mark the boundary line between the United States and Mexico. 32 Cong., 1 sess., IX (620), No. 81. Reconnaissance of the Gulf of California and Colorado River by Lieut. Derby. 32 Cong., 1 sess., XIV (626), No. 119. Report of the Secretary of the Interior in relation to the commission appointed to run and mark the boundary between the United States and Mexico. 32 Cong., 2 sess., III (660), No. 16. Report of the Secretary of the Interior in relation to the Mexican boundary. 32 Cong., 2 sess., III (660), No. 38. Report of the Secretary of the Interior on the report and maps of a survey between Indianola and El Paso, by the topographical engineers, attached to the Mexican Boundary Com­ mission. 32 Cong., 2 sess., VII (665), No. 41. Report of Commissioner John R. Bartlett on the United States-Mexican boundary, Feb. 15, 1853. 33 Cong., special sess., I (688), No. 6. Report of Secretary of the Interior McClelland, communicating i:apers in relation to the United States­Mexican boundary commission, March 21, 1853. a3 Cong., 1 sess., V (695), No. 29. Report on railroad routes by Secretary of War Davis, Feb. 6, 1854. The University of Texas Publication 33 Cong., 1 sess., VIII (698), No. 52. Report on railroad routes by Secre· tary of War Davis, March 20, 1854. 33 Cong., 2 sess., VII (752), No. 55. Report of Capt. A. B. Gray relative to the United States-Mexican boundary survey, Feb. 8, 1855. 50 Cong., 2 sess., IV (2613), No. 144. Report relative to the construction of certain dams in the Rio Grande at El Paso, March 2, 1889. Senate Miscellaneous Documents 48 Cong., 1 sess., II (2171), No. 96. Report on preliminary reconnaissance of the United States-Mexican boundary, May 26, 1884. 71 Cong., 3 sess., I (934.6), No. 250. International Water Commission, United States and Mexico. Senate Reports 32 Cong., 1 sess., II (631), No. 345. Committee on Foreign Relations report in relation to fixing the initial point in the United States-Mexico bound­ary, Aug. 20, 1852. 58 Cong., 3 sess., II (4756), No. 3915. Committee on Foreign Relations report on dam and reservcir on the Rio Grande in New Mexico, Feb. 15, 1905. 63 Cong., 3 sess., I (6762), No. 992. Committee on Irrigation and Reclama­tion of Arid Lands report relative to flood waters of the Rio Grande, Feb. 17, 1915. 67 Cong., 1 sess., I (7918), No. 230. Jurisdiction over Lands Acquired From Mexico. United States, Treaty Series, Washington: Government Printing Office. B. Mexican Official Sources Comisi6n Internacional de Limites Entre Mexico y los Estados Unidos, Secci6n Mexicana, Memoria Docum.entada del Juicio de Arbitraje del Chamizal, Mexico, D.F.: Talleres de Artes Gd.fleas, Granja Experimental de Zoquipa, 1911, 3 vols. ------, Tratados y Convenciones Relativos al Funcionamiento y Facultades de la Comisi6n Internacional de Limites, 1922. Diario Oficial, Mexico, D.F. Dictamenes sobre el Abuso de las Aguas de los Rios Bravo, Colorado, y Sus Afiuentes, Mexico: Oficina T:p. de la Secretaria de Fomento, 1892. Irrigaci6n en Mexico, Revista Mensual, Organo de la Co•misi6n Nacional de Jrrigaci6n. Memoria de la Secci6n M exicana de la Comisi6n Internacional de Limites Entre Mexico y Los Estados Unidos Que Restableci6 los Monumentos de El Paso al Pacifico, New York: Polhemus, 1901. Pianos de la Linea Divisoria Entre Mexico y los Estados Unidos del Norte al Oeste del Rio Grande Le·vantada y Marcada por la Comisi6n Internacional de Limites Creada por la Conve1wi6n de Julio 29 de 1882, Renovada por la de Febrero 18 de 188.9, New York: Polhemus, 1901. Vistas de los Monwmentos a lo Largo de la Linea Divisoria entre Mexico y los Estados Unidos de El Paso al Pacifico Tornadas, por Parte de Mexico, Bajo la Direcci6n de Ingeniero Jacobo Blanco, Jefe de la Secci6n Mexicana de la Comisi6n Internacional de Limites Que Restableci6 los Monumentos en los aiios de 1882 a1895, New York: Polhemus, n.d. C. Other Official Sources British and Foreign State Pavers, London: British Foreign Office, 1812-. League of Nations, Treaty Series, Geneva : League of Nations Secretariat, 1920-. de Martens, George F., R ecueil de Traites (2d ed.), 1761-1808, Gottingue: Dieterich, 1817-1835, 8 vols.; Nouveau recueil, 1808-1839, Gottingue; Dieterich, 1817-1842, 16 vols.; Nou1•eau recueil general, 3e serie (Tr:epel), 1894-, Leipzig: Dieterich, 1909-. Boundary Cornmission, United States and Mexico D. Statute and Treaty Sources Acts of Congress July 26, 1866, 14 Stat. 251. Aug. 13, 1888, 25 Stat. 433. Feb. 25, 1905, 33 Stat. pt. 1, 814. March 4, 1907, 34 Stat. pt. 1, 1357. Feb. 14, 1911, 36 Stat. pt. 1, 930. March 4, 1911, 36 Stat. pt. 1, 1863. June 30, 1914, 38 Stat. pt. 1, 442. March 3, 1915, 38 Stat. pt. 1, 822. March 4, 1915, 38 Stat. pt. 1, 1116. Aug. 19, 1921, 42 Stat. pt. 1, 171. Jan. 27, 1922, 42 Stat. pt. 1, 359. May 13, 1924, 43 Stat. pt. 1, 118. Dec. 5, 1924, 43 Stat. pt. 1, 672. Jan. 29, 1925, 43 Stat. pt. 1, 796. March 8, 1926, 44 Stat. pt. 2, 195. Dec. 21, 1928, 45 Stat. pt. 1, 1057. March 2, 1929, 45 Stat. pt. 1, 1502. June 17, 1930, 46 Stat. pt. 1, 767. Feb. 14, 1931, 46 Stat. pt. 1, 1162. March 4, 1931, 46 Stat. pt. 1, 1567. June 10, 1932, 47 Stat. pt. 1, 297. July 1, 1932, 47 Stat. pt. 1, 475. June 19, 1934, 48 Stat. pt. 1, 1033. Aug. 19, 1935, 49 Stat. pt. 1, 660. June 4, 1936, 49 Stat. pt. 1, 1463. May 6, 1937, 50 Stat. pt. 1, 131. Joint Resolutions of Congress March 1, 1845, 5 Stat. 797. April 28, 1904, 33 Stat. pt. 1, 591. March 3, 1927, 44 Stat. pt. 2, 1403. Presidential Proclamations May 27, 1907, 35 Stat. pt. 2, 2136. Treaties and Conventions Feb. 22, 1819, United States and Spain, 8 Stat. 252. Sept. 29, 1827, United States and Great Britain, 1 Malloy 646. Jan. 12, 1828, United States and Mexico, 8 Stat. 372. Aug. 8, 1843, Belgium and the Netherlands, 2 Map of Europe by Treaty 1031. Feb. 2, 18~8, United States and Mexico, 9 Stat. 922. Dec. 30, 1853, United States and Mexico, 10 Stat. 1031. July 29, 1882, United States and Mexico, 22 Stat. 986. Nov. 12, 1884, United States and Mexico, 24 Stat. 1011. Dec. 5, 1885, United States and Mexico, 25 Stat. 1390. Feb. 18, 1889, United States and Mexico, 26 Stat. 1493. March 1, 1889, United States and Mexico, 26 Stat. 1512. Aug. 24, 1894, United States and Mexico, 28 Stat. 1213. Oct. 1, 1895, United States and Mexico, 29 Stat. 841. Nov. 6, 1896, United States and Mexico, 29 Stat. 857. Dec. 21, 1897, United States and Mexico, 30 Stat. 1625. T' c c. 2, 1898, United States and Mexico, 30 Stat. 17 44. !lee. 22, 1899, United States and Mexico, 1 Malloy 1191. Nov. 21, 1900, United States and Mexico, 31 Stat. 1936. March 20, 1905, United States and Mexico, 35 Stat. pt. 2, 1863. The University of Texas Publication May 21, 1906, United States and Mexico, 34 Stat. pt. 3, 2953. Jan. 11, 1909, United States and Canada, 36 Stat. pt. 2, 2448. June 24, 1910, United States and Mexico, 36 Stat. pt. 2, 2481. Dec. 5, 1910, United States and Mexico, 36 Stat. pt. 2, 2487. Dec. 17, 1914, France and Italy, Journal Ofjiciel, April 29, 1915, p. 2698. April 10, 1922, Denmark and Germany, 10 League 187. Dec. 9, 1923, multilateral, 36 League 76. Aug. 11, 1927, Spain and Portugal, 82 League 131. Nov. 14, 1928, Hungary and Czechoslovakia, 110 League 427. May 7, 1929, Great Britain and Egypt, 93 League 44. Feb. 1, 1933, United States and Mexico, 48 Stat. pt. 2, 1621. E. Cases and Case Material Anderson v. Bassman (1905), 140 F. 10. Anna, The (1805), 5 C. Rob. 373. Arizona v. California (1931), 283 U.S. 423. Arkansas v. Mississippi (1919), 250 U.S. 39. Arkansas v. Tennessee (1918), 246 U.S. 158. Boyd's Lessee v. Graves (1819), 4 Wheaton 513. tJlipperton Island Award (1931), A m.erican Jo . 1rnal of International Law, XXVI, 390-394 (April, 1932). Coffee v. Groover (1887), 123 U.S. 1. Compafiia Agricola de C. Juarez v. Alderete et al. (1932), law, No. 1560, United States District Court, Western District, Texas. (Papers filed in United State~ District Clerk's Office, El Paso.) Conant v. Irrigation Company (1901), 23 Utah 628. Cordova v. Grant (1919), 248 U.S. 413. Downes v. Bidwell (1901), 182 U.S. 244. Durand v. Hollins (1860), 4 Blatch. 451. Eddy v. Simpson (1853), 3 Calif. 249. Foster v. Neilson (1829), 2 Peters 253. Garcia v. Lee (1838), 12 Peters 511. Geofroy v. Riggs (1890), 133 U.S. 258. Hoge v. Eaton (1905), 135 F. 411. Indiana v. Kentucky (1889), 136 U.S. 479. Iowa v. Illinois (1893), 14 7 U.S. 1. Kansas v. Colorado (1907), 185 U.S. 125. Lattimer v. Poteet (1840), 14 Peters 4. Louisiana v. Mississippi (1906), 202 U.S. 1. Maryland v. West Virginia (1910), 217 U.S. 1. Michigan v. Wisconsin (1926), 270 U.S. 295. Minnesota v. Wisconsin (1920), 252 U.S. 273. Missouri v. Iowa (1897), 165 U.S. 118. Missouri v. Kentucky (1870), 11 Wallace 395. MiE.souri v. Nebraska (1904), 196 U.S. 23. Nebraska v. Iowa (1892), 143 U.S. 359. Ne'lsen v. Johnson (1929), 279 U.S. 47. Rhode Island v. Massachusetts (1846), 4 Howard 591. Rickey Land and Cattle Co. v. Miller and Lux (1907), 152 F. 11. Rio Grande Dam and Irrigation Co. v. United States (1909), 215 U.S. 266. St. Louis v. Rutz (1891), 133 U.S. 226. San Lorenzo Title and Improvement Co. v. Caples (1931), law, No. 36659, 41st Judicial District Court, El Paso County, Texas. (Papers filed in District Clerk's office, El Paso County.) San Lorenzo Title and Improvement Co. v. Caples (1932), 48 S.W. 329. -----, .Drief for Appellees. Boundary Commission, United States and Mexico San Lorenzo Title and Improvement Co. v. City Mortgage Co. (1931), Jaw, No. 36936, 41st Judicial District Court, El Paso County, Texas. (Papers filed in District Clerk's office, El Paso County.) San Lorenzo Title and Improvement Co. v. City Mortgage Co. (1932), 48 S.W. (2d) 311. San Lorenzo Title and Improvement Co. v. Clardy (1931), law, No. 36855, 41st Judicial District Court, El Paso County, Texas. (Papers filed in District Clerk's office, El Paso County.) San Lorenzo Title and Improvement Co. v. Clardy (1932), 48 S.W. (2d) 315. Schooner Exchange v. McFaddon (1812), 7 Cranch 116. Shapleigh v. Mier (1937), 299 U.S. 468. United States v. American Rio Grande Land and Irrigation Co. (1911), equity, No. 41, United States Circuit Court, Southern District, Texas. (Papers filed in United States District Clerk's office, Brownsville; published in Proceedings, Horc6n Case.) United Statesv. Chavez (1899), 175 U.S. 509. United States v. Pico et al. (1859), 23 How. 321. United States v. Rio Grande Dam and Irrigatio.1 Co. (1898), 9 New Mex. 292. United States v. Rio Grande Dam and Irrigation Co. (1899), 174 U.S. 690. United States v. Rio Grande Dam and Irrigation Co. (1900), 10 New Mex. 617. United States v. Rio Grande Dam and Irrigation Co. (1902), 184 U.S. 416. United States v. Rio Grande Dam and Irrigation Co. (1906), 13 New Mex. 386. United States v. Yorba (1863), 1 Wallace 412. Villareal v. Marks (1929), law, No. 628, United States District Court, Southern District, Texas. (Papers filed in United District Clerk's office, Brownsville.) Virginia v. Tennessee (1893), 148 U.S. 503. Warder v. Cotton and Grant (1907), 207 U.S. 582. Warder v. Loomis (1905), 197 U.S. 619. Willey v. Decker (1903), 11 Wyoming 496. Willis v. First Real Estate and Investment Co. (1932), equity, No. 247, United States District Court, Western District, Texas. (Papers filed in United States District Clerk's office, El Paso.) Willis v. First Real Estate and Investment Co. (1934), 68 F (2d) 671. Willis v. First Real Estate and Investment Co., Transcript of Record, El Paso: Labor Advocate, 1932. Wyoming v. Colorado (1922), 259 U.S. 419. Wyoming v. Colorado (1932), 286 U.S. 494. II. Secondary Material A. General Works Bancroft, H. H., HU;tory of Mexico, San Francisco: The Bancroft Co., 1914. Bartlett, John, Personal Narrative of Explorations and Incidents in Texas, New Mexico, California, Sonora, and Chihuahua, London: George Routledge and Co., 1854, 2 vols. Bello, D.A., Principios de Daecho Internacional, Madrid: Imprenta de A. Perez Dubrull, 1883. Butler, C. H., Treaty-Making Power of the United States, New York: Banks Law Publishing Co., 1902, 2 vols. Burdick, C. K., The Law of the American Constitution: Its Origin and Develop­ment, New York: C. P. Putnam's Sons, 1922. Callahan, James, Ame11·can Foreign Policy in Mexican Relations, New York: Macmillan, 1932. Carnegie Endowment for International Peace, Resolutions of the Institute of International Lau: (J.B. Scott), New York: Oxford University Press, 1916. The University of Texas Publication Chacko, C. J ., The International Joint Comrni.ssion between the United States of America and the Dominion of Canada, New York: Columbia University Press, 1932. Chamberlain, Joseph, The Danube, Washington: Government Printing Office, 1918. Chamberlain, Joseph, The Regime of the International Rivers: Danube and Rhine, New York: Columbia University Thesis (Ph.D.), 1923. Corwin, E. S., The President's Control of Foreign Relations, Princeton: Princeton University Press, 1917. Creasy, Sir E., First Platform of International Law, London: Van Voorst, 1876. Fenwick, C. G., Internatio1tal Law (2d ed.), New York: Appleton-Century, 1934. Garber, P. N., The Gadsden Treaty, Philadelphia: University of Pennsylvania Press, 1923. Gregory, Gladys, "El Chamizal": A Boundary Problem Between the United States and Mexico, Austin: The University of Texas (Ph.D. thesis), 1937. Grotius, Hugo, De Ju,re Belli ac Pacis (ed. Scott, trans. Kelsey), Classics of Inter­national Law, Publications of the Carnegie Endowment for International Peace, Oxford: Clarendon Press, v. 1, 1913, v. 2, 1925. Hajnal, Henry, The Danube: Its Historical, Political and Economic /.rnportance, The Hague: Martinus Nijhoff, 1920. Hall, W. E., Treatise on International Law, 5th ed., Oxford: 1904; 8th ed., 1924. Halleck, H., International Law (Baker), London: Kegan Paul, Trench, Trubner and Co., 1908, 2 vols. Hertslet, Sir E., The Map of Europe by Treaty, London : Butterworth, 1875­1891, 4 vols. Hyde, C. C., International Law Chiefly as Intervreted and A7:>plied by the United States, Boston : Little, Brown, & Co., 1922, 2 vols. James, Herman, and Martin, Percy, The Republics of Latin America, Their His­tory, Governments and Economic Conditions, New York: Harper & Brothers, 1923. Kaekenbeeck, G., International Rivers, London: Grotius Society, 1918. Kent., J., Commentaries on American Law, 12th ed., Boston: Little, Brown & Co., 1873. Kinney, C. S., A Treatise on the Law of Irrigation and Water Rights and the Arid Region Doctrine of Appropria,tion of Waters, San Francisco: Bender-Moss Co., 1912. Kleinsorge, Paul N., The Boulder Canyon Project: Historical cind Economic Aspects, Stanford University: Stanford University Press, 1941. Lauterpacht, H., and McNair, A., Annual Digest of International Law Cases, 1925 and 1926, London : Longmans-Green and Co., 1929. Mathews, J. M., The Conduct of American Foreign Relations, New York: Century, 1922. Mills, Anson, My Story, 2d ed., Washington: published by the author, 1921. Moore, J. B., A Digest of International Law, Washington: Government Printing Office, 1906, 8 vols. Olson, R. L., The Colorado River Compact, Los Angeles : published by the author, 1926. Oppenheim, L., International Law (Lauterpacht), London: Longmans-Green and Co., 1937, Vol. I-Peace. Pergler, C., Judicial Interpretation of International Law in the United States, New York : Macmillan, 1928. Phillimore, Sir Robert, Commentaries upon International Law, Philadelphia: T. and J. W. Johnson, 1855, 2 vols. Pufendorf, Samuel, De Jure Naturae et Gentiwin (ed. Scott, trans. C. H. & W. A. Oldfather), Classics of International Law, Publications of the Carnegie Endow­ment for International Peace, Oxford : Clarendon Press, 1934, 2 vols. Boundary Commission, United States and Mexico Riquelme, A., Elementos de Derecho Publico Internacional, Madrid: D. Santiago Saunaque, 1849. Sandifer, D. V., Evidence Before International Tribunals, Chicago: Foundation Press, 1939. Scott, J. B., Hag11e Court Reports (2d series), New York : Oxford University Press, 1932. Strupp, Karl, Elements dn Droit International P11blic, Universel, Europeen et Americain, Paris: Rousseau, 1927. Taylor, Hannis, Treatise on International P11blic Law, Chicago: Callaghan, 1901. de Vattel, E., Le Droit Des Gens ou Principes de la Loi Naturelle Appliques ala conduite et aux affaires des Nations et des Souverains (ed. Scott, trans. Fenwick), Classics of International Law, Washington: Carnegie Institution, 1916, 3 vols. Wheaton, H., Elements of International Law, 2d ed., Boston: 1863; 6th ed., London: Stevens & Sons, 1922, 2 vols. Willoughby, W. W., The Constitutional Law of the United States, 2d ed., New York: Voorhis, 1929, 3 vols. Wilson, G. G., Harnlbook of International Law, 2d ed., St. Paul: West Publishing Co., 1927. Wolff, C., J11s Gentium Methodo Scientifica Pertractatwn (ed. Scott, trans. Drake), Classics of International Law, Publications of the Carnegie Endowment for International Peace, Oxford: Clarendon Press, 1934, 2 vols. Woolsey, T. D., Introduction to the Study of Intemational Law, 5th ed., New York: Scribner, 1879. Wright, Quincy, The Control of American Foreign Relations, New York: Mac­millan, 1922. B. Periodicals, Articles The American Journal of Internatioiwl Law, 1907-, Washington, D.C.: American Society of International Law. "Analysis of Swing-Johnson Bill," Cong1·essional Digest, VI, <.6-48 (Feb., 1927). Austin, Mary, "The Future of the Southwest," New Republic, XLII, 186 (April 8, 1925) . Bannister, L. W., "Interstate Rights in Interstate Streams in the Arid West," Harvard Law Review, XXXVI, 960-986 (June, 1923). Brown, Rome G., "The Golden Rule as a Maxim of the Modern Law of Water Rights," American Law Review, LVI, 401-421 (Jan.-Feb., 1922). Burleson, Mrs. Albert, "Wandering Islands of the Rio Grande," The National Geographic, XXIV, 381-386 (March, 1913). Carman, E. C., "Sovereign Rights and Relations in the Control and Use of American Waters," Southern California Law Review, III, 84-100, 152-172, 266-319 (Dec., 1929-April, 1930). Carpenter, W. C., "The Red River Boundary Dispute," American Journal of International Law, XIX, 517-529 (July, 1925). Crabites, Pierre, "Egypt, The Sudan and the Nile," Foreign Affairs, III, 320-330 (Dec., 1924). Dealey, J. A., Jr., "The Chicago Drainage Canal and St. Lawrence Development," American Journal of International Law, XXIII, 307-328 (April, 1929). Dennis, W. C., "The Necessity for an International Code of Arbitral Procedure," American Journal of International Law, VII, 285-300 (April, 1913). "'El Chamizal' Dispute Between the United States and Mexico," American Journal of International Law, IV, 782-8S3 (July, 1911). Hampton, Edgar, "The Battle with the Colorado," The American Review of Reviews, LXVI, 525-531 (Nov., 1922). Hawkins, W., "Water Rights in United States-Mexico Streams," Tem7Jle Law Quarterly, V, 193-207 (Jan., 1931). The University of Texas Publication Lawson, L. M., "Stabilizing the Rio Grande," Scientific American, CLV, 66-68 (Aug., 1936). MacKay, Robert, "The International Joint Commission Between the United States and Canada," A·merican Journal of International Law, XXII, 292-318 (April, 1928). Niles, R. D., "Arizona v. California," New York University Law Quarterly Review, X, 186-212 (Dec., 1932). ------, "Legal Background of the Colorado River Controversy," Rocky Mountain Law Review, I, 73-101 (Feb., 1929). Olson, R. L., "Leg~! Problems in Colorado River Development," Annals of the American Academy of Political and Socia.l Science, CXXXV, 108-114 (J11n., 1928). Powell, T. A., "Conclusiveness of Administrative Determinations in the Federal Government," American Politica,l Science Revie-w, I, 583-607 (Aug., 1907). Reinhardt, G. F., "Rectification of the Rio Grande in the El Paso-Juarez Valley," Am.erican Journal of International Law, XXXI, 44-54 (Jan., 1937). "Senators and Congressmen Discuss the Swing-Johnson Bill," Congressional Digest, VI, 48-56 (Feb., 1927). E:imsarian, J., "The Diversion of Waters Affecting the United States and Mexico," Texas Law Review, XVII, 27-61 (Dec., 1938). "State v. Federal Rights in the Colorado," Congressional Digest, VI, 57-60 (Feb., 1927). Timm, Charles A., "Some International Problems Arising from Water Diversion on the United States-Mexican Boundary,'' Southwestern Social Science Quarterly, XIII, 1-15 (June, 1932). ------, "Some Observations on the Nature and Work of the International Boundary Commission, United States and Mexico," Southwestern Social Science Quarterly, XV, 271-297 (March, 1935) . 'Viel, S. C., "Origin and Comparative Development of Watercourses in the Common Law and in the Civil Law," California Lm1,; Review, VI, 245-267 (May, 1918). C. Newspapers The Austin American Excelsior, Mexico, D.F. The New York Times The Times (London). San Antonio Exrn·ess. The United States Daily, Washington, D.C. El Universal, Mexico, D.F. M ONN'! ''"· ·.J.· . Y•; APPENDIX XI RELATIVE POSITIONS OF RIO GRANDE NEAR EL PASO BETWEEN 1852 AND 1907 ~-----------------+------------.... ---ff WOODLAWN /// ./"/ / / •• ~ SH(LJXJl/ft?""t L --.,,, .,( / l.,l "'C:J.. f . , ,, I ~-" RELATIVE POSITIONS OF CHAMIZAL -TRACT RIO·GRANDE NEAR EL PASO BETWEEN 1852Y'1-<) 1907 5CALE -I IN 5000 SC.At! or t<1ttro ~,_,,::,._,: ..,. o.('9,_ ­ Sc11u orrr_c1 '",.. " ~~· L E:GE ND c Gqfr;N-SALAZAR C.HA..... NC:l 18~? == 0 81..ue; -HELO T l~S J = t Yc.t..L..OW-F OL L(.TT 18 '.:!:J :::::. .,,..I,,Vt::F~MIL.ICH·fO\.l-.C.,..., !,..J07 := \ j X !\. COMPIL(O fRA Pt,.C~O~. :~1 t... ~ or t l(.f ..-_,,...,w7f:.Jmt- J°. uj;· l E Z .CHURCH L ' :•. r",1;"?>TOM H'.)v~t' '10,/tf ' ' I • (Chamizal, U.S. Countercase, map 9) APPENDIX XII RIO GRANDE, EL PASO-JUAREZ VALLEY RECTIFICATION PROJECT 31'St' '°'•io· .... I06 31• ]G• l l"S.' ...,... 3'"3?' 106"01' I°'~· / ~ tr [Q) .T.P7~ / ' / ~ ~ &:c, .T.~1$ lNT'ERNATIONA.L BoUN'O."RY C0~$~0N ~/ UNITt.C STATES ANO Wi£"1:1CO " M!IP OF THE / ,/ R IO GRAN DE E L PASO · JUAREZ VALLEY SURVEVfO lN 1'9'2 4-19'25. SCAL.E 1) "' ""191. Treu..d a:\d Ae..,i sed July 1930 Rav1ud J un6.193B ' Areas s hown are in He,t.ares. IOG"W' :woz:· 3lW' 30'"~6' '· (Copy of map supplied by Commissioner L. M. Lawson, International Boundary Commission, United States and Mexico) APPENDIX XIII RIO GRANDE VALLEY GRAVITY CANAL AND STORAGE PROJECT NOARY COMMISSION INTERNATIONA~A~~~ ANO MEXICO UNITED S STATES SECTION UNITED MAP GENERAL TGOPRO:~A~~ICVALLEY LOWER RIO . SHOWING GRAVITY PROPOSED ~~~~YE PROJECT CANAL: AND S . b Comm1ss1oner •· . . United States and Mexico) (Copy of map supphed y . . J M. Lawson, International Baundary Comm1ss1on, INDEX Abyssinnia, source of water of Nile, 222 Accretion, 13, 39, 71, 92, 150, 151, 166 Cases of, 67, 80, 87, 90, 118, 133, 141, 14~ 152, 15~ 162, 163, 172 Accretion and avulsion, 20, 26, 147, 150, 152, 153, 157 Acequia Madre, 186, 187, 189 Acre-foot, defined, 18n. Acreage under irrigation, see Irrigation Act of 1935, powers of United States Section increased by, 236; see also Statutes and Congress Adjuntas Banco, Las, see Banco Agua Prieta, Sonora, 36n. Alamo River, 190 Algodones, Lower California, 79 All-American Canal, 192n., 206, 238 American and British Claims Arbitra­tion Tribunal, see Arbitration American (diversion) Dam, 31, 188, 189, 218, 220 American Rio Grande and Irrigation Company, 59, 125 American Section, International Bound­ary Commission, see International Boundary Commission, United States Section American Section, International Water Commission, see International Water Commission Anderson, W. E., 199 Andrade, Guillermo, 190, 192 Arbitration, international American and British, 141, 183 Chamizal pact of, 136-137 In the Chamizal case, 141-167 On Clipperton Island, 105n. On Northeastern (U.S.) Boundary, 141 Special tribunal of, suggested, to remedy injuries to title holders on transferred tracts, 235-236 Arguelles, Camilo, 118 Arizona, 52, 193, 201 Arizona Improvement Company, 190 Arizona v. California, 202 Arkansas v. Tennessee, 20n. Arroyo, Mexican engineer, 47 Asia Minor, 221 Aspiroz, M. de, Mexican minister, 43, 190 Attorney General, United States, 180 Austria, 155 Avulsion, 13, 20, 39, 71, 72, 75, 92, 101, 104 139, 150, 151, 152, 166 Case ~f. 73, 85, 88, 89, 90, 97, 99, 109, 110, 11~ 123, 133, 14~ 144, 162, 163 Measures to prevent recurrence of, needed, 235 Of 1905, in Salton Basin, 190 Azucar Dam, 214n. Baden, 150 Baja California, 17, 18, 236, 238 Banco Adjuntas, 79, 88, 97, 108 Barrito, 86 Bermudez, 83 Bolsa, 85, 86 Cachanilla, 80 Camargo, 73, 75, 86, 143, 160, 164 Campamento, 86 Camp Rice, 80, 89, 90 Capote, 87 Compaiiia Agricola, 110 and n., 111 Fain, 82, 12ln. Farmer's, 78, 82, 89, 90, 121 and n. Gallego, 80 Granjeno, 72, 73, 75, 143, 160 Guayuco, 123 Isla, 84 Juanita, 87 Max Millier, 80 Nunez, 80 Phillips, 87 Piedra, 80 Rafael Garcia, 86 Rancho Viejo, 86 Rincon de Marcelino 80 Rosario, 86 ' San Lorenzo, 80, 81, 82, 90, 97-99, 108-109, 11~ 113, 12~ 121, 127, 157; map of, 98 Santo Domingo, 86 Santa Margarita, 73, 75, 143 160 Soliseiiito, 78, 81, 82, 87, 88, '89 Toluca, 86 Vela, 72, 73, 75, 143, 157, 160 Weber, 80, 81, 82, 98, 117 Bancos, 13, 17, 20, 37, 72, 73 Act of Legislature of Texas acceptino­jurisdiction over, 96, 108 ' Agency needed to protect Mexican titles on, 235 and n. Clarification of relation of domestic courts to elimination of, needed 233 Conclusions on work of eliminatio~ of 90-91 ' Date transfer of, takes effect 95 99 103 ' ' ' Definition of, 71 Elimination of, 21, 27, 40-44, 53, 71, 75-80, 83, 90-91, 224; legal nature of, 103-115; legal questions arisingfrom, 21, 103-114 List of, 266-268 Negotiation of Treaty of 1905 on elim­ination of, 71-75 Numbering system for, 75 and n. Population and size of, 89-90, 26.§-268 Procedure and problems in elimination of, 80-90 Promptness in elimination · of, sug­ gested, 233 Relation of Commission to 40-44 92­ 105 ' ' Surveys of, 29, 41, 75, 76, 79 81 84 85, 86, 87, 89, 93 ' ' ' Treaty of 1905 .on elimination of, 40­ 44, 92-114 Types of, 96 Barlow, J. W., United States commis­sioner, 25 Barra, de la, 158, 159, 170 Barrito Banco, see Banco The University of Texas Publication Bartlett, John R., United States com­missioner, 24 Bavaria, 155 Bayard, Secretary of State, 38, 57 Beach, General Lansing H., 199 Beaver Island, 172; see also Morteritos Island Place of, in suggested exchange, 235 Belgium, 221 Beltran y Puga, Fernando, Mexican Com­missioner, 27, 138, 14.0, 192, 194, 195n., 196 Bermudez Banco, see Banco Big Bend region, 19n. Blaine, James G., Secretary of State, 58 Blanco, Jacobo, Mexican commissioner, 25, 27 Blanco-Barlow Commission, 25 Board of Water Engineers, Texas, see Texas Boca Chica, 68 Bolsa Banco, see Banco Bonaparte, Charles J., Attorney General, 61 Boquilla Dam, 214n. Boulder Canyon Project Act, 198, 203 Mexican claims under, 198 Boulder Dam, 19, 192n., 199, 204, 214, 238 Project, 205 Boundary, United States-Mexican, 13, 14, 15, 16, 38, 39, 51, 52, 54, 56, 58, 59, 67, 71, 72, 73, 79, 84, 141, 146, 152, 154 Controversy in American Section over initial point of, on Rio Grande, 23­24 Defined in Treaty of 1848, 23, 147; in Treaty of 1853, 24 Fixed-line theory of, 147-161 International law que:;;tions concern­ ing, 228-229 Land, poyvers over, given to United States Section, 52, 236 Nature of, 17-19, 151 New treaty regarding, suggested, 243 Public strip along, suggested, 241 Relocated under Treaty of 1882, 25 Streams, international practice on diversion of water from, 220-223 Under Treaty of 1828-1835, 23n.; Treaty of 1848, 23-24, 106, 138, 145; Treaty of 1853, 23, 138; Treaty of 1882, and extensions thereof, 25; Treaty of 1884, 59, 106, 156, 161; draft treaty of June 5, 1899, 42; Treaty of March 20, 1905, 48; Treaty of 1933, 48 Waters, problem of, to present time, 197-214 Box Canyon, 44, 49 Boynton, Justice, 99 Boyd's Lessee v. Graves, 169n. Brewer, Justice, 162 Bridges, international, 14, 68 Brownsville, Texas, 17, 19, 59, 62 and n., 65, 66, 72, 216 Brownsville Wharf Case, 152 Bryan, W. J., Secretary of State, 27 Buchanan tract, see Tract Bureau of Reclamation, see United States, Bureau of Reclamation Bureau of Research in the Social Sciences, 16; studies of, 11 Butler, Charles Henry, 109 Caballo Dam, 31, 49 and n., 187, 218 Built by Department of Interior, 220 Caldwell, J. M., Special Associate Jus­tice, 101, 111 Cachanilla Banco, see Banco Calexico, California, 82 California, 17, 192, 193, 201, 206 California Development Company, 190, 192, 193 Cameron County, 210 Cameron County Water Control and Im­provement District, 68 Campamento Banco, see Banco Camp Rice Banco, see Banco Canad~ 135, 136, 229 Canalization Project, see Rio Grande Canalization Project Canals, see names of: Acequia. Madre, All-American, Coachella, Franklin, Riverside Canyons, see names of: Box, Quitman, Rio Grande, Santa Helena, Selden Capote Banco, see Banco Carman, E. C., 220-221 Carranza regime, 28 Central Commission of the Rhine, 230 Central Power and Light Company, 68 Cession, theory of, in banco elimination, 21, 103-114 Chaffee, George, 192 Chama River, 176 Chamizal, El, Case of, 14, 15n., 21, 27 and n., 45, 53, 132-17 4, 224 Arguments presented in arbitration of, 141-167: on fixed-line theory, 147-161; on non-retroactivity of Treaty of 1884, 141-147; on pre­scription, 167-169; on question of rapid erosion, 161-167 History of, 132-141 Solution of, question as to, 169-174 Chihuahua, 17, 123 Clark, J. Reuben, United States Am­bassador, 48 Clayton, United States Ambassador, 42, 43, 105 Clipperton Island Award, 105n. Coachella Canal, 206 Cocke, W. H., 72 Coffee v. Groover, 122 Colombia, Nuevo Leon, 63, 69 Colorado River, 14, 17, 18, 19, 20, 24, 25, 38, 39, 5t 54, 57, 58, 66, 71, 76, 78, 79, 81, 85, 90, 147, 158, 175, 176, 185, 195, 199, 201 Basin of, 18, 190, 191, 198, 206, 213, 238 Break of, into Salton Sea, 192 Description of, system, 18, 19, 190 Early efforts to secure an agreement regarding, 190-195 Map of, 191 Index 283 Mexican concession to divert water from, 193 and n. Navigability of, 192-193 Navigation on, 192-193, 202-203 Negotiations on conservation, use, and control of waters in, 195 Restored to old channel, 192 Solution to water problem in, 240 Water supply of, 194, 201 Colorado River Compact, 192n., 198 Provisions of, 198n. Colorado River Irrigation Company, 190 Colorado River Valley, 89, 91, 175 Development in, 200-201 Early irrigation in, 193 Irrigation in, 201 Lands irrigable in, 201 Water resources of, 201 Colorado, State of, 18, 176, 196 Territory of, 178, 181 Commission Central, of the Rhine, 230 European, of the Lower Danube, 230­ 231 For the Chamizal question, 137 For the Study of the Equitable Dis­ tribution of the Waters of the Rio Grande and the Colorado River. 136 International Joint, see International Joint Commission On Equitable Use of Water of the Rio Grande below Fort Quitman, pro­vided for, 197 Rio Grande Water, established 1907, 196 To study the Questions in Connection with the Distribution of Colorado River Waters, 196; combined with Commission on Lower Rio Grande, 194; established, 194; joined with International Boundary Commis­sion, 194 Committee on Foreign Affairs, see United States Committee on Foreign Relations, see United States Compai'iia Agricola, 117-118 and n., 119 Compai'iia Agricola Banco, see Banco Compai'iia Agricola de Cuidad Juarez v. Alderete, 97, 103, 110, 111, 120n., 127, 130 Conchos River, 18, 176, 200 and n., 210 Reservoir on, 210 Congress, United States, see Congress under United States Consulting engineers, 33, 36 and n., 37, 50, 64, 67, 76, 78, 79, 80, 81, 82, 83, 85, 86, 87, 88, 89, 90, 94, 118, 144, 174; see also International Bound­ary Commission Convention, see Treaty Coolidge, President, 199 Coolidge Dam, 214n. Cooperative plan for conservation and use of water supply, suggested, 238 Cordova tract, see Tract Cordova v. Grant, 15n., 136n. Corwin, E. S., 144 Cotton, J.P., Undersecretary of State, 95 Courts, domestic Cases in, list of, 276-277; see also names of cases Clarification of relation of, to banco elimination, needed, 233 Of Mexico, see Mexico Of Texas, see Texas Of the United States, see United States Questions regarding relation of, to work of Boundary Commission, 21, 91, 124-131, 236 and n. Views of, in regard to Commission's powers, 96-114 Views of, on private titles, 119-124 Crain, Representative W. H., 72 Curry, George, United States commis­ sioner, 28 and n. Cushing, Caleb, Attorney General, 75, 146, 151, 153, 156, 159, 160, 163 Cutoffs, see Bancos Dam, international, proposed; see also Reservoir, international At Marron, 201n. Near El Paso, 178, 181-182, 185 On Lower Rio Grande, 214 and n. Dams, see under names of : Azucar, Boquilla, Boulder, Caballo, Coolidge, Don Martin, Elephant Butte, Inter­national (Mexican), Laguna, Red Bluff Danube River, 155 Davalos, Balbino, 59 Dearing, Fred Morris, 170 Dennis, William Cullen, 140, 149 Department, Mexican Government, see Mexico Department, United States Of Interior, 32, 192, 213, 220 Of Justice, 183 Of State, 15, 16, 28, 30, 45, 53, 59, 78, 88, 102, 117, 119, 125, 129, 134, 136, 154, 158, 185, 190, 194, 198, 212, 216, 217; attachment of engineering ad­viser to, suggested, 233 Of War, 45, 66, 183, 193 Devil's River, 18, 19n., 196, 213 Devries, H. J. S., 31 District Court of Texas at El Paso, see Texas Diversion of water, see Diversion under Water Dnieper River, 149 Dniester River, 155 Documentary material, 14-15 Don Martin Dam, 214n. Donna, Texas, 216 Douglas, Arizona, 36n. Downes v. Bidwell, 109n. Druiec River, 149 Duoro River, Spanish-Portuguese agree­ ment on, 223 Durand v. Hollins, 144n. Eagle Pass, Texas, 196, 214n. Eckert, J. C., 16 Egypt The University of Texas Publication Agreement with Great Britain on waters of Nile, 222 Elbe River, 150 Elephant Butte Dam, 175, 181, 182, 204, 212 Effect of, on flood-danger, 218 El Paso City of, 15, 17, 19, 23, 30, 31, 34, 44, 45, 47, 64, 65, 66, 67, 68, 69, 73, 82, 117, 137, 173, 176, 178, 179, 181, 182, 186, 187, 188, 189, 196, 199, 201 County of, 15, 167, 178, 186 Reclamation District, 29 El Paso Electric Company, 66 El Paso-Juarez Valley, 13, 16, 18, 27, 49, 76, 78, 79 and n., 85, 89 and n., 91, 116, 175, 184, 187' 188, 196, 205, 209, 211, 220, 238 Efforts of United States to cJmtrol Rio Grande waters in, 189 Flood control and river rectification in, 13, 16, 29, 30, 44.-51, 186, 217-220 Map of Rectification Project in, fol­lowing 280 El Paso Valley, 35, 45, 47, 50, 53, 67, 117, 131, 162, 176, 185 Emory, Major W. H., 23, 24, 85, 118, 149, 151, 155 Emory-Salazar Survey, 127 Engineers, see Consulting engineers Engle, New Mexico, 180n., 181, 182, 185 Equitable distribution of water, see Water, diversion of Eritrea, 222 Erosion, 39, 71, 101, 104, 150, 151, 153, 166 Analysis of question of rapid, 161-167 Cases of, 36n., 49, 50, 62, 73, 80, 86, 89, 118, 133, 139, 141, 142, 152 European Commission of the (Lower) Danube, 230-231 Evidence, rules of, 37, 40n. Types of, on bancos, 84ff. Exchange of tracts, proposed, 235 Fabens, Texas, 68 Fain Banco, see Banco Farmer's Banco, see Banco Federal Project Number 5, 31, 212, 213; see also Valley Gravity Canal and Storage Project Fence Construction Project, 31 Fernandez, Secretary of Foreign Affairs, 155 Fernandez MacGregor, Rafael, 32n. Field, Justice Stephen, 109, 169 Fish, Hamilton, Secretary of State, 152, 153, 156, 159 Fixed-line theory, 71, 138, 139, 147-161, 164 Flood control, 13, 30, 31, 45, 47, 49, 52, 54, 67' 68, 91, 173 Flood control projects, 214-220 At Nogales, 214-215 In El Paso-Juarez Valley, 217-220 In Lower Rio Grande Valley, 216-217 Floods, 45 and n., 49, 91 Control of, 205 Danger of, above El Paso, 218 In Lower Rio Grande Valley, 216 In Salton Basin, 175, 190, 192 Follett, W. W., 62, 181 Foreign Relations of the United States, 14 Fort Brown, Texas, 36n. Fort Quitman, 31, 32, 49, 51, 186, 189, 19~ 199, 200, 207, 212 Foster v. Neilson, 130-131 France, 130, 149, 150, 221 Franklin Canal, 186, 187, 188, 189 Frelinghuysen, Secretary of State, 154 and n., 156, 158, 159, 160, 178 Fremont, J. C., United States commis­sioner, 23 French, H. F., 154 Frijolar tract, see Tract Gadsden Treaty, see Treaty of 1853 Gaines, John Wesley, 27, 195n., 214 Galatz, Roumania, 230 Gallego Banco, see Banco Garcia Conde, General Pedro, Mexican commissioner, 23 Garcia, Pedro Ignacio, 132 Garcia v. Lee, 130n. Gash River British-Italian agreement on, 222 Geneva, Switzerland, 223 Geological Survey, see United States, Geological Survey Geofroy v. Riggs, 109n. Gettys, W. E., 11, 16 Gila River, 18, 145, 204, 206, 214n. Godoy, Jose, 157, 158, 170 Gray, A. B., 23, 24 Great Britain, 141, 149, 221, 222 Green River, 18 Grotius, Hugo, 150 Guadalupe tract, see Tract Guadalupe, Chihuahua, 68 Guadalupe Hidalgo, Treaty of, see Treaty of 1848 Guayuco Banco, see Banco Gulf Of California, 18, 202 Of Mexico, 17, 18, 32, 56, 73, 79, 176, 196, 212 Haciendita, Texas, 66 Hackett, Charles Wilson, 16 Hanlon Heading, 192 Harmon, Attorney General, 180 183, 205 Hawkins, Walace, 118 and n. ' Hay, John, Secretary of State, 42, 190 Haynes, J. L., 154 Hidalgo County, 210 Hidalgo County Water Control and Im­provement District No. 2, 67 Hill, Lucius, United States commissioner 28, 35n., 171, 172, 186 ' Hill, Louis C., water commissioner, 194 1~ ' Horcon Cutoff, 59-62 and n., 63, 69, 125­126, 128, 157, 170, 171, 172, 235; see also Horcon tract Horcon tract, place of, in suggested ex­change, 235 Index Houston, Governor Sam, 121 Huerta, Victoriano, 171, 195, 235 and n. Hughes, Charles Evans, Secretary of State, 63, 95, 117, 205, 212 Hunter, William, 153 Hutcheson, Judge J. C., 97, 102, 123 Hydroelectric power, 203, 208 Iberville River, 149 Imperial Irrigation District, 192n., 206 Imperial Valley, 192, 193, 194 Acreage under irrigation in, 195 Indiana v. Kentucky, 169 Indians, as a frontier problem, 24 Initial point on the Rio Grande, contro­versy over, in American Section, 24 Inn River, 155 Institute of International Law, resolu­tions of, on diversions from inter­national streams, 222-223 Instructions, as source of authority of International Boundary Commission, 51, 53, 56 International Boundary Commission, United States and Mexico, 11, 13-16, 19, 20, 23, 26, 28, 38, 39, 43, 45, 48, 51, 52, 53, 73, 96, 176, 181, 184, 188, 195, 196, 197, 198, 199, 214, 216, 243 Administration of all reclamation, irri­gation, drainage, and power develop­ments along boundary by, suggested, 237 Antecedents of, 23-25 Boundary and water commissions com­bined, 30, 54, 54n. Classification of powers of, as to type of boundary, 225 Compared with International Joint Commission, 230-233; with Central Commission of the Rhine, 230; with European Commission of the (Lower) Danube, 230-231 Continued by treaties of 1894, 1895, 1896, 1897, 1898, 1899, 1900, 26n.; made permanent by Treaty of 1900, 26n. Duties of International Water Com­mission transferred to, 29, 54 Establishment of, 25-26, 38 Evidence, rules of, before, 36-37 Executory authority of, 40, 41, 59-66, 94; views of courts in regard to, 96­103 Flood control works in Nogales con­structed by, 214-215 Hearings and testimony before, 33, 36-37 and n., 75, 78, 82, 83, 87, 88, 89 Increase of powers of, along boundary, suggested, 236, 237 Interpretation of powers of, under Treaty of 1889, 57-58 Investigations, power of, to conduct, 39-40 Jurisdiction of, 20, 26, 51 and n., 54­56; see also, International Boundary Commission, powers and duties of 285 Later history of, 26-29 Legal nature of powers of, 92-115, 224 Manner of presenting questions to, 36 Measurably successful in its work, 231-232; factors in success of, 232 Mexican commissioner of, appointed, 23, 29, 54, 54n. Mexican Section, 15, 27, 30, facing 32, 50, 52, 53, 117, 264; headquarters of, 30; organization of, facing 32, 32; relation of, to International Water Commission, 30 Minutes of, 15, 28, 33, 35 and n., 36, 76, 83, 116 Miscellaneous activities of, 14 Organization of, 29-32 Permissive power of, 66-69 Phases of study of, 19 Place of, in suggested cooperative water program, 238 Plan of study of, 19, 20 Powers and duties of, classified as ministerial or as discretionary, 225­226 Powers and duties of, classified as to functional character, 226-228 Powers and duties of, classified as to international law questions, 228-229 Powers of, in practice, under Treaty of 1889, 58-70 Powers and duties of, under special instructions and statutes, 51-56 Powers and duties of, under Treaty of 1889, 38-40, 92-94 Powers and duties of, under Treaty of 1905, 40-44, 92-114 Powers and duties of, under Treaty of 1906, 51 Powers and duties of, under Treaty of 1933, 44-51 Proceedings of, 41 Procedure of, 34-37 Projects of, map of, facing 29; see also names of projects Provided for, 26, 146 Relation of, to banco elimination, 92­103 Relation of, to domestic courts, 124­131 Relation of, to private titles, 115-124 Report of, on flood control works in Lower Valley, 216-217 Reports of, 14, 36, 41, 47-48 Rules and regulations of, 32-34, 49-50 Seat of, 34 Secretaries of, 33 Sessions of, 34 Sources of authority of, 20, 38, 51, 54, 56 Structure of, under Treaty of 1889, 30 Supervisory power of, 69 United States Section of, 13, 14, 16, 23, 28, 30-32, 47, 50, 52, 53, 95, 181, 188, 218, 243; divisions of, 31-32; duties of, increased by assumption of work of American Section, Inter­national Water Commission, 212, and The University of Texas Publication by Act of 1935, 54-56, 236; orga~i­zation of, 30-32; powers and duties of, under special instructions and statutes, 51-56, and under Treaty of 1933, 44-51; Canalization Project recommended by, 218; headquarters of, 34; project engineers of, 31; re­ports of, 14 Work of consulting engineers of, 36, 37; see also, Consuiting engineers International (Water) Boundary Com­mission, United States and Mexico, see International Boundary Commis­sion, United States and Mexico International Commission for the Equi­table Distribution of Water, 27 International (Mexican) Dam, 187 International Irrigation Congress, 229 International Joint Commission, United States and Canada, 64, 229, 230, 231, 232 As commission of inquiry, 227 Compared with International Bound­ ary Commission, 229-231 Established, 230 Organization and procedure of, 230 Powers of, 231 International law, 20, 21, 22, 37, 71, 106, 13~ 14~ 150, 152, 153, 15~ 164, 16~ 167, 168, 180, 208 On diversion from boundary streams, 220-221 Questions of, involved in powers and duties of International Boundary Commission, 228-229 See also accretion, avulsion, erosion, prior appropriation, retroactivity, sovereignty, thalweg International practice on diversion from boundary and interstate streams, 209, 220-223 International rivers, 149-150, 155, 220­223, 229-231 International Water Commission, 29, 186, 200, 202, 206, 221 American Section of, 205, 211; argu­ments of, on Lower Rio Grande, 207­208; duties of, transferred to United States Section, International Bound­ary Commission, 211; reorganized, 211; views of, on water resources, 238-239; views of, on water rights in Colorado basin, 203 Continued to complete studies, 211 Members of, 199 Mexican Section of, 186 ; arguments of, on water rights in Colorado ba­sin, 203-204; arguments of, on Lower Rio Grande, 208-209; duties of, assumed by Mexican Section, International Boundary Commission, 212; views of, on water resources, 238-239 Sessions of, 199 Iowa v. Illinois, 20n. Irrigation, 18, 51, 59, 67, see generally, 175-214 Beginning of, from Lower Rio Grande, 196 Early, in Colorado Valley, 193 In Imperial Valley, 195 In Lower Valley of Texas, 210, 213 In Upper Rio Grande, 176-178 Lands irrigable, 18, 200, 201 Lands under, 18, 195, 200-201, 210, 213 Mexican lands under, from Colorado River, 195 Isla Banco, La, see Banco Italy, 222 Jadwin, Captain Edwin, 193, re?om­mendations of, on Colorado River, 193 and n. Javier Osorno, Francisco, Mexican com­missioner, 27 Jefferson, Thomas, 144 Joint Journal of International Boundary Commission, 32, 33 Jones, Gowan, Special Associate Justice, 100, 112 Jordan River, 222 British-French agreement on, 222 Juanita Banco, see Banco Juarez, Chihuahua, 17, 26, 30, 32, 34, 45, 51, 64, 66, 69, 179, 199 Jurisdiction, transfer of, over bancos, see Bancos, legal questions arising from elimination of Kassala, Sudan, 222 Keblinger, Wilbur, 27, 136 and n., 194n., 195n . Kent, Chancellor, 109 Knox, Philander C., Secretary of State, 135-136, 158, 159 Kongama, 156 Lafleur, Eugene, Presiding Commissioner in Chamizal Arbitration, 138, 139, 159, 164 Lafragua, Secretary of Foreign Rela­tions, 153, 154 Laguna Dam, 202n. Lake Mead, 19 Land Monument No. 1, 48, 49, 49n. Land titles, see Titles, private Lansing, Secretary of State, 28 Laredo Bridge Company, 68 Laredo, Texa~ 17, 66, 6~ 212 La Roya River, treaty on, 223 Lattimer v. Poteet, 109n. Lawson, Commissioner L. M., 16, 28, 29, 45, 50n., 52, 69, 202 Description of Canalization Project by, 220 Designated sole American commis­sioner, 211 Flood control projects in Lower Val­ley of Texas under supervision of, 217 On effectiveness of Nogales fl.ood­control works, 215 Lebanon, 221-222 Index 287 Leyva, Aurelio, Mexican commissioner, 28 Louisiana v. Mississippi, 169n. Lower Colorado River, 54, 194, 206 Lower Rio Grande Flood Control Project, 31, 32, 54 and n., 91, 217 Lower Rio Grande Valley, 30, 79, 80, 85, 91, 206, 209, 238 Critical situation confronting, 213 Development in, 200, 210 Federal Project No. 5 in, 212-213 Floods in, 216 Lands irrigated in, 210 Lower Rio Grande Valley of Texas, over­all irrigation district in, needed, 240 Solution to water problem in, 240 Lower Rio Grande Valley Water Users' Association, 198 McClelland, Robert, Secretary of the In­terior, 151 Mccreery, Charge d' Affaires, 100 McLean, Justice, 109 McNary, Texas, 65 Maria Canalizo, Jose, Mexican commis­sioner, 27 Mariscal, Ignacio, 41, 43, 100, 104, 106, 122, 124, 134, 137n., 153 Marron dam, proposed, 201n. Marshall, C. B., 16 Marshall, John, Chief Justice, 130, 180 Maryland v. West Virginia, 169n. Matamoros, 17, 66, 68, 153 Maurepas Lake, 149 Max Muller Banco, see Banco Mead, Dr. Elwood, 199, 211 Mesilla Valley, 18, 188, 220 Mesopotamia, 221 Metropolitan Water District, 201n. Mexicali, Baja California, 17, 82 Mexican Canal, see Acequia Madre Mexican Department of Communications and Public Works, see Mexico Mexican Foreign Office, see Mexico Mexican Section, International Bound­ary Commission, see International Boundary Commission International Water Commission, see International Water Commission Mexico Civil Court of District of Bravos, Chi­huahua, 120 Contribution of water from, to Rio Grande system, 200 Courts of, 15 Department of Communications and Public Works of, 47, 66, 68 Department of Foreign Relations of, 3~ 41, 4~ 43, 53, 54, 66, 115, 11~ 174 Government of, 42, 47, 57, 65, 66, 67, 69, 78, 105, 117' 124, 134, 151, 152, 155, 157, 170, 171 "Illegal" diversions of water by, in El Paso-Juarez Valley, 219-220 Lands of, irrigated from Colorado River, 195 Problems of, concerning development of Rio Grande Valley, 211; of Lower Colorado, 211 and n. Protests of, regarding irrigation works on Colorado River, 190 Reservoirs constructed by, 210, 214n. Rights of, to water of Rio Grande, 176-181, 185 Views of, on right of navigation, 202 Waiver of claims of, under Treaty of 1906, 185 Mexico, D.F., 48, 53, 199 Michigan v. Wisconsin, 169 Mier, 154 Milk River, 221 Mills, Commissioner Anson, 15, 27, 29, 35, 41, 42, 43, 53, 59, 62, 64, 65, 78, 104, 105, 106, 115, 117, 135, 138, 139, 140, 159, 163, 166, 178, 181, 196 Activities of Commission during in­cumbency of, 27 Minutes of Commission, see International Boundary Commission, minutes Mission Floodway, 217 Mission, Texas, 216 Mississippi River, 20, 149, 165 Missouri River, 162, 163, 164 Monumentation of boundary, 54, 68n., 83 Monuments, boundary, 14, 24, 25, 26, 42, 44, 52, 54, 76, 83, 94, 1".4 Morgan, Philip, 155 Morteritos Island, 26, 36n., 154, 155, 158, 159, 171, 172; see also Beaver Island Muonis, 156 National Resources Committee Program of, on Colorado River, 206 Recommendations of, on Lower Rio Grande, 212 Navigability of boundary streams, 26, 63 Abrogation of theory, suggested, 206 Of Colorado River, 192-193 Theory of, 179, 183 and n., 202, 205, 228, 238 Navigation, 18, 152, 153, 202, 228 On Colorado River, 192-193 Nebraska v. Iowa, 20n., 162-163, 164, 165 Netherlands, 141, 168, 221 New Jersey, 190 New Mexico Courts of, 183 State of, 52, 180n., 184, 196, 220 Territory of, 178, 181, 182 New York Times, 14, 119n. Nile River British-Egyptian agreement on, 222 Nogales Arizona-Sonora, 36n., 52 and n. Flood' control works in, 214 Nogales Flood Control Project, 32, 214, 227 Nogales, Sonora, 17 Northeastern (U.S.) Boundary Arbitra­tion, 141 Nuevo Laredo, 17 Nunez Banco, see Banco Obregon, President, 28 Ockerson, J. A., 192 Ojinaga, Chihuahua, 68 Olney, Richard, Secretary of State, 40, 41, 43, 53, 102, 104, 115, 179 Osorno, F. Javier, 162, 163 Ottawa, Canada, 230 The University of Texas Publication Pacific Ocean, 16, 17, 24, 56, 202 Palacio, Don Francisco, 152, 153, 156, 159 Palestine, 221 Palmas, Island of, 168 Paso de! Norte, see Juarez Pecos River, 18, 214 Pedrero Cordova, Joaquin, Mexican com­ missioner, 28 Pelphrey, Chief Justice Will, 100, 112 Pefia, Manuel Garza, 154 Permanent Court of Arbitration, 168 Phillips Banco, see Banco Piedra Banco, see Banco Piedras Negras, 17 Poland, 149 Pontchartrain Lake, 149 Population, 89, 90, 92, 99, 106, 112, 140 Porciones, defined, 18 and n. Power development, see Hydroelectric powerPrescription, urged by the United States in the Chamizal case, 167-169 Presidio, Texas, 68, 73, and n. Presidio Valley, 78, 80, 82, 85, 91, 213 Prieto, Antonio, Mexican commissioner, 28, 35n., 171, 172 Prior appropriation, 22 Theory of, explained, 208-209 Prior developments, protection of, needed, 238-239 Private titles on bancos, see Tit!es, private Procedure, rules of, 34-37, 137 Project engineers, see International Boundary Commission Projects of International Boundary Com­mission, map of, facing 29; see also names of projects Property rights in bancos, 26, 42, 44, 107' 115-124, 166 Protocol of May 6, 1896, 53, 197 and n., 212, 227 Public Works Administration Funds for flood control works in Lower Valley of Texas granted by, 217 Funds for Nogales flood control works provided by, 214 Pueblo irrigation developments, 18 Puga, Mexican Commissioner, see Bel­tran y Puga Puig Casauranc, Jose Manuel, 48, 159, 160 Quitman Canyon, 74 Rafael Garcia Banco, see Banco Railroads, 24, 182 and n. St. Louis, Brownsville, and Mexican, 196 Southern Pacific, 192 and n. Rainfall, distribution of along Rio Grande, 18-19 Ramos, Federico, Mexican commissioner, 28, 199 Rancho Viejo Banco, see Banco Ray, J. M., 16 Raymondville, Texas, 216 Rectification of Rio Grande, see EI Paso­ Juarez Valley Red Bluff Dam, 214n. Reservoir, international, near El Paso, proposed, 178, 181-182 Reservoirs Caballo, 188 Elephant Butte, 19, 188 Program of construction of, by Mexico, 210 Set of, suggested, 239 Sites for, 214n. Retroactivity of effects of treaties, 103, 138, 139, 141, 156, 164 Reynosa, 143 Rhine River, 150 Rhode Island v. Massachusetts, 169n. Rincon de Marcelino Banco, see Banco Rincon Valley, 188, 220 Rio Bravo del Norte, see Rio Grande Rio Grande, 11, 14, 17, 18, 19, 20, 23, 24, 25, 26, 38, 39, 44, 45, 51, 53, 54, 56, 57, 58, 59, 63, 66, 68, 69, 71, 88, 91, 127, 145, 147, 151, 154, 158, 162, 163, 167, 17"~· 180, 181, 185, 188, 189, 190, 193, 204, 238 Basin of, 18, 177; irrigation in, 200; lands irrigable in, 200; map of, 177; water resources of, 201 Canyon, 80, 91 Description of, system, 18, 19, 176, 196 Division of waters of, studied, 196-197 Lower, 54, facing 71, 93, 176, 198, 201; early efforts to secure an agreement on, 196-197; flow of, at Matamoros station, 210n. ; irrigation from, be­gins, 196; problem of, considered by International Water Commission, 206-211; treaty provisions on, 206­207 Main sections of, 73 and n. Rectification of, see El Paso-Juarez Valley Upper, 163, 175, 176-189, 179, 196, 206, 214, 222; problem of equitable distribution of waters of, 212 Rio Grande Canalization Act, 54 and n., 218 Description and purpose of, 218-220 Rio Grande Canalization Project, 31, 187-188, 218 Rio Grande City, Texas, 73, 79, 164 Rio Grande Dam and Irrigation Com­ pany, 180n., 182, 183 Rio Grande Federal Irrigation Project, New Mexico and Texas, 47 Rio Grande Irrigation and Land Com­pany, 182 Rio Grande Rectification Project, 31, 32, 49; see also El Paso-Juarez Valley Rio Grande Water Commission, estab­ lished 1909, 196 Rio Rico, Tamaulipas, 172 Rivera tract, see Tract River Beds: alterations in, 38-39, 41, 58, 71. 73, 76, 87, 89, 105, 162; aggrading of, 19 Channels, artificial changes in, regu­lated, 26, 39, 53 and n., 59, 63 Index Rectification, 13, 29, 44, 45, 47, 49, 50, 54, 91, 171, 173, 17 4; see also El Paso-Juarez ValleyRivers, see under names of: Alamo, Chama, Colorado, Conchos, Danube, Devil's, Dnieper, Dniester, Druiec, Duoro, Gash, Gila, Green, Iberville, Jordan, La Roya, Lower Colorado, Milk, Mississippi, Nile, Pecos, Rhine, Rio Grande, Salado, San Juan, St. Lawrence, St. Mary, Santa Cruz Riverside Canal, 189 Riverside· Heading in Rio Grande, 186, 189 Roberts, Governor, 178 Rockwood, C. R. 190 Rocky Mountains, 18 Rodriguez, President, 105n., 17 4 Roma, Texas, 78, 79, 154 Romero, Matias, 38, 40 and n., 53, 57, 58, 93, 102, 105, 151, 152, 153, 155, 156, 159, 178, 190 Roosevelt, President Theodore. 52, 241 Root-Bryce Convention, see Treaty of 1909 Root, Elihu, 157, 158 Rosario Banr.o, see Banco Roumania, 230 Rules and Regulations of International Boundary Commission, 32-33, 50; see also International BoundaryCommission Russia, 149, 150, 155, 156 Sabinos Island, 154; see also Beaver Island and Morteritos Island St. Lawrence River, 221n. St. Louis v. Rutz, 165 St. Marv River, 221 Salado River, 18, 180n., 200 and n., 210 Reservoir on, 210 Salazar y Larree:ui, Jose, 23, 85, 149 Salton Basin, 175, 190 Floods in, 1904. 192 Salton Sink, see Salton Basin Salza River. 155 Sanchez Mejorada, Javier, 199 San Diego, California, 17, 231. 202 San Elizario "Island." 27, 45. 73 and n., 144, 157, 160, 171, 172, 178 Excluded from suggested exchange of tracts, 235 Sanitation works, 202 San Juan River, 18, 44, 88, 180n., 200 and n., 210 Reservoir on, 210 San Lorenzo Banco, see Banco San Lorenzo Title and Improvement Company, 120 v. Caples, 99, 101-102, 111, 122. 128 v. City Morte:age Company, 99-100, 112, 121, 127 v. Clardy, 99, 100-101, 112, 122, 127 San Ysidro, California, 202 Santa Anna, President, 105n. Santacruz. Commissioner Armando, Jr., 16, 29 Santa Cruz River, 214n. Santo Domingo Banco, see Banco Santa Helena Canyon, 55 Sarre River, 149 Schooner Exchange v. McFadd0n, 180n. Secretaria de Relaciones Exteriores, see Mexico, Department of Foreign Re­lations Secretary, United States Of Agriculture, 179 Of the Interior, 78, 182, 183, 185, 193, 194, 195 Of State, 32, 54, 58, 62, 65, 72, 116, 118, 152, 155, 156, 158, 178, 179, 180, 181, 183, 195, 196, 197, 199 Of the Treasury, 57, 154 Selden Canyon, 220 Senecu tract, see Tract Serrano, Gustavo, Mexican commis~ioner, 28n., 29, 199 Seward, W. H., Secretary of State, 151, 153, 156, 169 Shapleigh v. Mier, 15n., 123 Sheppard, Senator Morris, 197 Sherman, John, Secretary of State, 93, 105, 135 Silt deposits, 19, 192, 204 Sociedad de Irrigaci6n y Terrenos de Baja California, 192, 193 Solisefiito Banco, see Banco Sonora, Mexico, 17, 18 Sovereignty Doctrine of, as to water rights, 203 Question of, in Chamizal ca~e, 139-140, 171; under Treaty of 1905, 91-103 Theory of, 180-181 Transfer of, over eliminated bancos, 21, 39, 42, 43, 48, 96-114, 121, 155, 161 Spain, 130, 149 Starr County, Texas, 58, 97 State Department, see Department, of State Statutes, 31n., 51, 54, 61 Act of January 27, 1922, 96 and n. Act of 1924 authorizing Commission on Rio Grande, 198; amended 1927, to include Colorado River and Tia Juana River, 199 Act of July 1, 1932, 54 Act of 1935, 13, 52, 54-56 and n., 213, 228, 236 Act of June 4, 1936, authorizing Canalization Project, 218-220 As source of powers and duties of International Boundary Commission, 54, 56 Stimrnn, Henry L., Secretary of State, 52 Sudan, 222 Supreme Court, United States, see United States, Supreme Court Surveys, see Bancos, surveys of, and Emory-Salazar Survey Sweden, 156 Switzerland, 230 Syria, 221-222 Tamaulipas, 66, 68 Tejada, Lerdo de, 151, 152 The University of Texas Publication Tellez, Manuel C., Mexican Ambassador, 95, 105 n. Testimony, 33, 36-37, 37n., 40 and n., 75, 78, 82, 83, 85, 87, 88, 89, 101, 126 and n., 127, 133, 144, 161 Texas, State of, 11, 18, 96, 97, 99, 108, 109, 110 and n., 117, 118, 167, 178, 189, 216 Board of Water Engineers, 200 Court of Civil Appeals, Eighth Su­preme Judicial District of, 99, 100, 101, 111 District Court of, El Paso County, 99­100 Legislature of, 11, 96, 108, 167 Statutes of, 117 Thalweg, rule of the, 13, 147, 149-150, 155, 156 Thurston, R. L., 16 Tia Juana River, 18, 54, 201 and n., 202 Titles, private, on banco lands, 81, 115, 131 Relation of Commi~sion to, 115-124 Toluca Banco, see Banco Tornea, 156 Tracts Buchanan, 80, 89 Cordova, 45, 48 and n., 144, 157, 171, 173, 174, 186 Exchange of, suggested, 235 Frijolar, 89 Guadalupe, 80, 89 Rivera, 80, 89 Senecu, 89 Treaty Of 1848, 13, 17, 23, 26, 39, 52, 56, 63, 71, 101, 106, 134, 154, 159, 167, 168, 179, 180, 202, 228, 244; fixed-line theory established by, asserted by Mexico, 147-161; provisions of, con­cerning Rio Grande, 207 Of 1853, 13, 17, 23, 26, 52, 56, 71, 101, 105n., 148, 159, 202, 246; provisions of, concerning Rio Grande, 207 Of 1882, 23, 25, 52, 101 Of 1884, 13, 17, 20, 21, 26, 39 and n., 40, 44, 56, 57, 58, 59, 63, 71, 72, 73, 106, 125, 154, 156, 160, 161, 202, 228, 248; question of retroactivity of, 138, 139, 141-147, 160, 170; pro­visions of, on navigation, 207; theory of rapid erosion under, 161-164 Of December 8, 1885, 25 Of February 18, 1889, 25 Of March 1, 1889, 13, 19, 20, 25, 26, 30, 32, 34 and n., 35, 36, 53, 56, 57-70, 73,92-94, 101, 106, 125, 127, 146,226, 228, 250; Boundary Commission's powers under, 38-40; extended by treaties of 1894, 1895, 1896, 1897, 1898, 1899, 1900, 26n.; terms of, 26 Of August 24, 1894, 25, 26n. Of October 1, 1895, 26n. Of November 6, 1896, 26n. Of October 29, 1897, 26n. Of December 2, 1898, 26n. Of December 22, 1899, 26n., 51 Of November 21, 1900, 26n. Of 1905, 13, 20, 27, 32-33, 40-44, 51, 56, 63, 83, 119, 122, 124, 127, 128, 129, 131, 143, 147, 160, 166, 225, 252; Boundary Commission's power un­der, 40-44, 92-114, 121; clarification of, needed, 233; negotiation of, 27, 71-75 Of May 21, 1906, 56, 175, 176, 180n., 185, 186, 187, 196, 201, 206, 207, 208, 212, 214, 221, 239, 255; Boundary Commission's powers under, 51; re­lation of, to Canalization Project, 219 Of 1909, 221, 227 Of 1910, 136-137 Of 1933, 13, 20, 217-218, 227, 233, 257; analyzed, 44-51; Boundary Commis­sion's powers under, 44-51 French-Italian, of December 17, 1914, on La Roya River, 223 German-Danish, of 1922, 222 Hungarian-Czechoslovakian, of No­vember 14, 1928, 223 Of Maestricht, on use of boundary waters, 221 Spanish-Portuguese, of August 11, 1927, on Duoro River, 223 Treves, 149 United States Army Air Service, 78, 81 Attorney General, 180, 183 Bureau of Reclamation, 14, 51; sug­gestions of, on Colorado River, 195 Circuit Court of Appeals, Fifth Cir­cuit, 15n., 102, 113, 123, 128 Circuit Court at Brownsville, 62 and n. Committee on Foreign Affairs, 198, 218 Committee on Foreign Relations, 198 Congress, 68, 96, 110, 178, 184, 185, 198, 199, 213, 218; acts of, see Stat­utes Department of Agriculture, etc., see Department, United States District Court at Brownsville, 96n., 119 District Court at El Paso, 97, 119, 126 Geological Survey, 14, 90, 193, 194 Government, 53, 69, 121, 140, 158, 170 Land Office Survey, 85 Secretary of Agriculture, etc., see Sec­retary, United States Section of International Boundary Commission, see International Bound­ary Commission; of Water Commis­sion, see International Water Com­mission Senate, 57, 146 Supreme Court, 15, 109, 123, 130, 165, 169, 183, 202, 233 United States v. Rio Grande Land and Irrigation Company, 62 and n., 227 v. Chavez, 168n. v. Pico, 130n. v. Rio Grande Dam and Irrigation Com­pany, 183n. v. Yorba, 130n. Index 291 University of Texas, The, 16 Valley Gravity Canal and Storage Project, Texas, 32 Description of, 213 Map of, following 280 Valleys, see under names of: Colorado, El Paso, El Paso-Juarez, Imperial, Lower Colorado, Lower Rio Grande, Mesilla, Presidio, Rincon, Rio Grande, Upper Rio Grande Villa Nueva, Texas, 68 Villareal v. Marks, 96 and n., 102, 103, 106, 111, 119 Virginia v. Tennessee, 169n. War Department, see Of War under De­partment Warder v. Cotton and Grant, 136n. Warder v. Loomis, 136n. Washington, D.C., 15, 45, 53, 57, 58, 72, 146, 156, 157' 170, 171, 179 Water Apportionment and control of, 19, 54, 176 Boundary problems of, to present time, 197-214 Conservation of, 53, 54 Conservation, use, and control of, in Colorado River, negotiations on, 195 Cooperative plan for conservation and use of, suggested, 238 Diversion of, 26, 68, 125; "illegal," by Mexicans in El Paso-Juarez Valley, 186-187, 220 Division of, 13, 196-197 Early difficulty over, in Upper Rio Grande, 176-180 Equitable distribution of, studied, 27, 51, 63, 95, 136 Existing uses of, protected in treaties, 221-223 Flow of, in Colorado River, 194 Ideal solution to problem of, suggested, 239-240; objections to, 240 Importance of, in boundary region, 11, 175 In Lower Valley of Texas, inland storage of, planned, 213 International practice, regarding, 175, 176, 209, 220-223 Irrigation, for El Paso-Juarez Valley, 189 Of international streams, rule of inter­national practice regarding diver­sion of, 209 Of Rio Grande between Mexican Canal and Fort Quitman, Treaty of 1906 on, 207; discussion of in Interna­tional Water Commission, 207 Practicable solution to problem of, suggested, 240-242 Problem of apportionment and control of boundary, 175-223 Resources of, in the two basins, 18, 200-201 Riparian rights to, according to com­mon law, 209n. Shortage of, in Upper Rio Grande, 176-178; in Imperial Valley, 192 Storage of, on Rio Grande needed, 210 Supply, termination of uncertainty re­garding, suggested, 237 Treaty with Mexico, needed, 213-214 Use and control of boundary, 17, 18, 21, 22, 54 Uses of, agreed upon in treaties, 221­223; by Belgium and Netherlands, 221; by France and Italy, 223; by Germany and Denmark, 222; by Great Britain and France, 221-222; by Great Britain and Italy, 222; by Hungary and Czechoslovakia, 223; by Spain and Portugal, 223; by United States and Canada, 221 Water Bulletins, 15 Weber Banco, see Banco Weller, Colonel John B., United States commissioner, 23 West, Representative Milton H ., bill of, on Lower Rio Grande Valley, 213, 240-241 Westphalia, 150 Wharf Company of Brownsville, 152 White, Chief Justice, 109 Willis v. First Real Estate and Invest­ment Company, 97-99, 102, 108, 110, 113 and n., 120, 123, 126, 128 Wilson, George Grafton, 16 Wilson, President Woodrow, 235n. Wilson, Thomas F., 153 Wright, Quincy, 145 Ysleta, 110 Yuma, Arizona, 19, 78, 79, 82, 190