maintaining by the site of the said structure material and equipment sufficient for its prompt removal.

13. That arrangements satisfactory to the Secretary of War shall be continued to dispense as speedily as possible with the necessity for placing diversion dams in said river, and that the said district shall report in detail to the said district engineer on the 1st and 15th day of each month while this authorization continues in force what measures are proposed for that purpose and the progress made thereon.

14. That unless previously revoked or specifically extended, this authorization shall expire July 1, 1920.

Witness my hand this 16th day of June, 1919.

EXHIBIT H.

NEWTON D. BAKER,
Secretary of War.

Mr. LEROY HOLT,

DEPARTMENT OF THE INTERIOR,
Washington, August 5, 1918.

President Imperial Irrigation District, El Centro, Calif.

DEAR MR. HOLT: Your letter of June 7, transmitting draft of contract as approved by your directors, was duly received, and reply thereto has been delayed owing to my absence and that of Messrs. Bradley and Davis from the city. It has now, however, been given careful consideration, and I herewith inclose approved draft accepting most of the changes you have made and differing only in two particulars.

The plans by the United States for the development of Yuma project propose the development of power upon the Colorado River near Pilot Knob, and this might be locally shifted to accommodate the Imperial district; but if the point of such power development is, for the benefit of Imperial Valley, taken to some point distant from Pilot Knob, farther away from Yuma project, it would be hardly fair to expect Yuma, which would receive no benefit from this change, to stand the expense therefor, as your draft would require. The language has therefore been changed to agree with the former draft that the charge is to be made on the basis of the cost of development at the power house, and this seems to be just, especially as you are allowed 10 per cent profit on this power, which will cover a portion of the cost of carrying it to Pilot Knob.

The provision in paragraph 14 that the share of Yuma project in the water supply be limited to one-fourth of the water which can be diverted at Laguna Dam places upon the Yuma project the burden of providing for any water rights that may be adjudicated to the lands which have been cultivated in connection with the Imperial Valley concession. This does not seem equitable, as neither the United States nor the Yuma project has had anything to do with this concession or the obligations which may have grown up under it. This has therefore been changed to read "one-quarter of the water in the river above Laguna Dam."

With these changes, which I think the Government must insist upon, the contract is approved, and you will note that most of the suggestions you have made have been adopted.

The Yuma people have objected to the change which you have requested occurring at the close of paragraph 12, because under the language you propose any water that may be dropped at Pilot Knob for power might be dropped into the river, thereby necessitating its rediversion into your canal until the allAmerican line is built, and this they fear might lead to further requests for the construction of a dam in the river.

The assumption, however, that the Imperial district would go to all the expense of building a large canal to connect with Laguna Dam and then deliberately throw away its advantages for no reason, appears to be so violent that I have accepted your wording without change, but this is written to emphasize the fact, that it is not intended that this provision should give occasion for the reconstruction of a dam in the Colorado River at Hanlon heading. In fact, this dam is such a menace to the safety of the Yuma Valley that it can only be permitted as a temperatory expedient pending some adequate provision for forestalling its necessity such as this contract provides, and unless the Imperial district takes immediate steps to secure a safe and permanent

method of diverting water from the Colorado I will not again favor the placing of such a structure in the river.

Cordially, yours,

Mr. LEROY HOLT,

FRANKLIN K. LANE.

EXHIBIT I.

WAR DEPARTMENT, Washington, April 11, 1918.

President Imperial Irrigation District, El Centro, Calif. DEAR MR. HOLT: You were recently handed form of contract under which, when ratified according to law by the stockholders of your corporation and properly executed by the Secretary of the Interior, connection of the canal system of Imperial irrigation district with the diversion works of the Yuma project at Laguna Dam may be made. It is understood that the terms of this contract were agreed upon as being fair and reasonable by your representatives and by representatives of the Yuma County Water Users' Association, and that they represent the final determination of the Interior Department upon the points in controversy.

It is hoped that formal action looking to the ratification or rejection of this agreement may be taken by you speedily, as such action must necessarily have an important bearing upon the subject of the weir dam in the Colorado River at Hanlon heading. That dam is regarded as a serious menace to the Yuma project, the further toleration of which can be justified by this department only in connection with convincing evidence, such as ratification of the proposed agreement and diligence in carrying out its provisions of a definite and dependable plan for speedily removing the need of such a structure.

Very truly, yours,

BENEDICT CROWELL, Acting Secretary of War.

EXHIBIT J.
[Item 3.]

THE ATTORNEY GENERAL TO THE SECRETARY OF STATE,

DEPARTMENT OF JUSTICE, Washington, D. Ç., December 12, 1895. SIR: I have the honor to acknowledge the receipt of your letter of the 5th ultimo in which you refer to the concurrent resolution of Congress passed April 29, 1890, providing for negotiations with the Government of Mexico with a view to the remedy of certain difficulties mentioned in the preamble of such resolution, which arise from the taking of water for irrigation from the Rio Grande above the point where it ceases to be entirely within the United States and becomes the boundary between the United States and Mexico. I have also the copy which you inclose of the note of the Mexican minister to yourself, dated October 21, 1895, in which he states at length the position taken by his Government.

You say:

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The negotiations with which the President, acting through the Department of State, is charged by the foregoing resolution can not be intelligently conducted unless the legal rights and obligations of the two Governments concerned and the responsibility of either, if any, for the disastrous state of things depicted in the Mexican minister's letter are first ascertained."

I have the honor, therefore, to call your attention to the legal propositions asserted in Mr. Romero's letter and to inquire whether, in your judgment, those propositions correctly state the law applicable to the case. In other words

(1) Are the provisions of article 7 of the treaty of February 2, 1848, known as the treaty of Guadalupe Hidalgo, still in force so far as the River Rio Grande is concerned, either because never annulled or because recognized and reaffirmed by article 5 of the convention between the United States and Mexico of November 12, 1884?

(2) By the principles of international law, independent of any special treaty or convention, may Mexico rightfully claim that the obstructions and diversions of the waters of the Rio Grande in the Mexicon minister's note referred to are violations of its rights which should not continue for the future and on account of which, so far as the past is concerned, Mexico should be awarded adequate indemnity?

I reply as follows:

(1) Article VII of the treaty of Guadalupe Hidalgo, while it was declared to have been rendered nugatory for the most part by the first clause of article 4 of the treaty concluded December 30, 1853, and proclaimed June 30, 1854, was, by the second clause thereof, reaffirmed as to the Rio Grande (now Rio Bravo del Norte) below the point where, by the lines as fixed by the latter treaty, that river became the boundary between the two countries. Said Article VII is recognized as still in force by Article V of the convention concluded November 12, 1884, and proclaimed September 14, 1886.

So far, therefore, as it affects the subject now in hand, said Article 7, in my opinion, is still in force. I am unable, however, to agree with the minister in the interpretation which he gives it.

His statement is that the city of El Paso del Norte has existed for more than 300 years, during almost all of which time its people have enjoyed the use of the water of the Rio Grande for the irrigation of their lands. As that city and the districts within its jurisdiction did not need more than 20 cubic meters of water per second, which was an almost infinitesimal portion of the volume of water, even in times of severest drought they had sufficient water for their crops until about 10 years ago, when a great many trenches were dug in Colorado, especially in the St. Louis Valley, and in New Mexico, through which the upper Rio Grande and its affluents flow, so greatly diminishing the water in the river at El Paso that, except when rains happen to be abundant, there is scarcity of water from the middle of June until March. In 1894 the river was entirely dry by June 15, so that no crops could be raised, and even fruit trees began to wither. The result has been to reduce the price of land and cause great hardships to the people, whose numbers in Paso del Norte, Zaragozza, Tres Jacalles, Guadalupe, and San Ignacio diminished from 20,000 in 1875 to one-half that number in 1894.

The minister further states that from a report of the assistant quartermaster general, addressed to the general in chief of the United States Army, dated September 5, 1850, it appears that Capt. Lowe (meaning Love), United States Army, ascended the river in a vessel to a point several kilometers above Paso del Norte, showing that it was then navigable at that place. The minister has been misinformed. The original report, which is before me now, shows that Capt. Love was instructed to carry "to the highest attainable point in the Rio Grande" his small keel boat, which " drew, with her crew, provisions, arms, etc., on board, 18 inches of water." He found this point at some impossible falls," which he names "Brookes Falls." Carrying around them "the skiff which had accompanied his boat," he rowed 47 miles farther to other falls, which he named Babbitts Falls." Beyond this point he "found it impossible to proceed with the skiff, either by land or water," and it was "about 150 miles by land below El Paso."

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The minister contends that the irrigation ditches in Colorado and New Mexico, which result in diminishing the flow of water at El Paso, come within the treaty prohibitions of any work that may impede or interrupt, in whole or in part, the exercise of this right" (of navigation), because, as he says, "nothing could impede it more absolutely than works which wholly turn aside the waters of these rivers." But Article VII is limited in terms to "the part of the Rio Bravo del Norte lying below the southern boundary of New Mexico." Article IV of the treaty of 1853 continues the provisions of said Article VII in force "only so far as regards the Rio Bravo del Norte below the initial of said boundary provided in the first article of this treaty." It is that part alone which is made free and common to the navigation of both countries and to which the various prohibitions apply. It is plain that neither party could have had, in framing these restrictions, any such intention as that now suggested. The fact, if such it were, that the parties did not think of the possibility of such acts as those now complained of would not operate to restrain language sufficiently broad to include them; but the terms used in the treaty are not fairly capable of such a construction. They naturally apply only to the part of the river with which the parties were dealing and 185833-2015

to such works alone as either party might construct on its own side if not restrained. Through equally divided in theory between the two nations where it is their boundary, the river is, in fact, a unit for purposes of navigation, and therefore the treaty required the consent of both for the construction of "any work that may impede or interrupt" navigation, even though it should be "for the purpose of favoring new methods of navization." (Art. VII.) Up to the head of navigation no such work could have been constructed save by one of the two Governments, or by its authority. The prohibition was, therefore, appropriately made applicable to them alone and not to the citizens of either, 'neither shall, without consent of the other, construct," etc. Above the head of navigation, where the river would be wholly within the United States, different rules would apply and private rights exist which the Government could not control or take away save by exercise of the power of eminent domain, so that clear and explicit language would be required to impose upon the United States such obligation as would result from the construction of the treaty now suggested.

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Moreover, the only right the treaty professed to create or protect with respect to the Rio Grande was that of navigation. The claim now made is for injuries to agriculture alone at places far above the head of navigation. Capt. Love, in the report referred to, said, "The mouth of Devils River, which is about 100 miles below the mouth of the Puerco (Pecos) and 617 above Ringgold Barracks, is the head of steamboat navigation," and that "with some difficulty navigation by keel boats was possible "to a point 56 miles above the 'Grande Indian Crossing,' or about 283 miles above the mouth of Devils River." So far as appears, the large and numerous tributaries below El Paso supply a sufficient volume of water for the needs of navigation.

In fact, the part of the treaty now under consideration merely expresses substantially the same rights and duties which international law would imply from the fixing of the middle of the river as the boundary, viz, free navigation of the entire stream below the point where it becomes common to both nations, without any levy or exaction or the construction of any work which might impede navigation, without the consent of both.

In my opinion, therefore, 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.

It is not necessary, in order to bring this principle into play, that it shall appear that either party, or both, actually thought of the particular matter whose exclusion is asserted, although that fact, when it appears, may serve to emphasize the inference. I am not advised whether the subject of the use of the water of the Rio Grande for irrigation was mentioned during the negotiations or not, but it is stated that such use had long been made by the Mexicans, and it was known that agriculture could not be carried on in that region without it. It was known, too, certainly to Mexico, that this necessity existed also throughout the entire region watered by the upper Rio Grande and its tributaries, for, as a Province of Spain and then as an independent nation, Mexico had included both New Mexico and Colorado, and from the independence of Texas in 1836 down to the treaty of 1848 Mexico's eastern boundary was the Rio Grande to its source. By this treaty Mexico ceded to the United States the territory west of the Rio Grande and north of the southern boundary of New Mexico, just as she had abandoned to Texas all the territory east of that river, without any reservations, restrictions, or stipulations concerning the river except those above mentioned.

Settlements had long existed in the region of Santa Fe, and the probability of the ultimate settlement of the entire territory along the Rio Grande must have been apparent to both parties. Yet the treaty made no attempt to create or reserve to Mexico or her citizens any rights or to impose on the United States or their citizens any restraints with respect to the use of water for irrigation, although rights of property in the territory were secured to all Mexicans, whether established there or not. (Art. VIII.)

The treaty of 1848 was a treaty of peace, and a different rule for the construction of such treaties is laid down by some writers. (Vattel, Law of Nations, Chitty's ed., p. 433.) If it be suggested that the circumstances under which this treaty was made bring its terms, as against the United States, within the operation of such rule, it is a sufficient answer that, even if the existence of the rule be acknowledged, it simply subjects provisions in favor of the United

States to strict construction. Like all rules of construction, it has no application except in cases of doubtful meaning of language used and can not be made the means of introducing new terms. Moreover, the United States paid $15,000.000 for the territory acquired by the treaty (art. 12), and by the treaty of 1853, which was not a treaty of peace, Mexico ceded further territory in consideration of $10,000,000 (art. 3), repeating without enlarging the stipulations of the former treaty as to rights on the Rio Grande.

(2) I have given my opinion of the construction and effect of the treaty, because it is responsive to your general request, though not to your specific questions. That opinion, perhaps, in strictness makes it unnecessary for me to consider your second question, but as that question is not put alternatively or conditionally, I proceed.

An extended search affords no precedent or authority which has a direct bearing.

There have been disputes about the rights of navigation of international rivers, but they have been settled by treaty. (For a list of such treaties see Heffter, Droit Int., Appendix VIII.) The subject is fully discussed by Hall (Int. Law, sec. 39), who denies that the people on the upper part of a navigable river have a natural right to pass over it through foreign territory to its mouth. Now, if such right be conceded, no aid is afforded for the present inquiry, because use for navigation, being common, would not curtail use by the proprietary country, while in the case now presented, there not being enough water for irrigation in boh countries, the question is which shall yield to the other. It is stated by some authors that an obligation rests upon every country to receive streams which naturally flow into it from other countries, and they refer to this as a natural international servitude. (Heffter, Droit Int., sec. 43; 1 Phillemore, Int. Law, p. 303.) Others deny the existence of all international servitudes apart from agreement in some form. (Letters of Grotius quoted 2 Hert., p. 106; Kluber, Droit des Gens Moderne, sec. 139; Bluntschli, Droit Int. Cod.; Woolsey's Int. Law, sec. 58; 1 Calvo, Droit Int., sec. 556.)

Such a servitude, however, if its existence be conceded, would not cover the present case or afford any real analogy to it. The servient country may not obstruct the stream so as to cause the water to back up and overflow the territories of the other. The dominant country may not divert the course of the stream so as to throw it upon the territory of the other at a different place. (See authorities supra.) In either of such cases there would be a direct invasion and injury by one of the nations of the territory of the other. But when the use of water by the inhabitants of the upper country results in reducing the volume which enters the other it is a diminution of the servitude. The injury now complained of is a remote and indirect consequence of acts which operate as a deprivation by prior enjoyment. So it is evident that what is really contended for is a servitude which makes the lower country dominant and subjects the upper country to the burden of arresting its development and denying to its inhabitants the use of a provision which nature has supplied entirely within its own territory.

Such a consequence of the doctrine of international servitude is not within the language used by any writer with whose works I am familiar, and could not have been within the range of his thought without finding expression.

Both the common and the civil law undertake to regulate the use of the water of navigable streams by the different persons entitled to it. Neither has fixed any absolute rule, but leaves each case to be decided upon its own circumstances. But I need not enter upon a discussion of the rules and principles of either system in this regard, because both are municipal and, especially as they relate to real property, can have no operation beyond national boundaries. (Creasy, Int. Law, p. 164.) So they can only settle rights of citizens of the same country inter sese. The question must therefore be determined by considerations different from those which would apply between individual citizens of either country. Even if such a question could arise as a private one between citizens of one country and those of another, it is not so presented here. The mere assertion of the claim by Mexico would make it a national one, even if it were of a private nature. (Gray v. U. S., 1 C. Cls. R., 391-392.) But the use of water complained of and the resulting injuries are general throughout extended regions, so that effects upon individual rights can not be traced to individual causes, and the claim is by one nation against the other in fact as well as form.

The fundamental principle of international law is the absolute sovereignty of every nation as against all others within its own territory. Of the nature