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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. 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. (Wattel, 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 pieans 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 bea ring.
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
and scope of sovereignty with respect to judicial jurisdiction, which is one of its elements, Chief Justice Marshall said (Schooner Exchange v. McFaddon, 7 Cranch, p. 136): “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.” It would be entirely useless to multiply authorities. So strongly is the prin
ciple of general and absolute sovereignty mraintained that it has even been
asserted by high authority that admitted international servitudes cease when they conflict with the necessities of the servient State. (Bluntschli, p. 212; see criticism by Creasy, p. 258.) Whether this be true or not, its assertion serves to emphasize the truth that self-preservation is one of the first laws of nations. No believer in the doctrine of natural servitudes has ever suggested one which would interfere with the enjoyment by a nation within its own territory of whatever was necessary to the development of its resources or the comfort of its people. The immediate as well as the possible consequences of the right asserted by Mexico show that its recognition is entirely inconsistent with the sovereignty of the United States over its national domain. Apart from the sum demanded by way of indemnity for the past, the claim involves not only the arrest of further settlement and development of large regions of the country, but the abandonment, in great measure at least, of what has already been accomplished. It is well known that the clearing and settlement of a wooded country affects the flow of streams, making it not only generally less, but also subjecting it to more sudden fluctuations between greater extremes, thereby exposing inhabitants on their banks to increase of the double danger of drought and flood. The principle now asserted might lead to consequences in other cases, which need only be suggested. It will be remembered that a large part of the territory in question was public domain of Mexico and was ceded as such to the United States, so that their proprietary as well as their sovereign rights are involved. It is not suggested that the injuries complained of are or have been in any measure due to wantonness or wastefulness in the use of Water or to any design or intention to injure. The water is simply insufficient to supply the needs of the great stretch of arid country through which the river, never large in the dry season, flows, giving much and receiving little. The case presented is a novel one. Whether the circumstances make it possible or proper to take any action from consideration 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. o
Very respectfully, -
THE ALL-AMERICAN CANAL.
[Preliminary report of the All-American Canal, Board, Dr. Elwood Mead, W. W. Schlecht, C. E. Grunsky, together with the o of the engineer in charge of surveys and examinations, Porter J. Preston. December, 1918.]
Organization and duties of the All-American Canal Board.—This board has been appointed under the provisions of an agreement bearing date February 16, 1918, between the Secretary of the Interior and the Imperial irrigation district, which provides as follows:
“Whereas it is desired to make a complete investigation, survey, and cost estimate of an all-American canal from the Laguna Dam, Arizona-California, into Imperial Valley, California; and
* Whereas the said district will allot the sum of thirty thousand dolfars ($30,000) to be made available upon condition that the United States will enter into a contract for said cooperation with the said district; and
* Whereas the Secretary will allot the sum of fifteen thousand dollars ($15,000) to be expended on such investigations in cooperation with the said district.
“Now, therefore, in consideration of the promises and the mutual covenants and agreements herein contained, it is stipulated and agreed between the parties hereto as follows:
"That investigations, surveys, and cost estimates of an all-American canal from the Laguna Dam, Arizona-California, into Imperial Valley, California, will be made in order to determine the possibility and feasibility of carrying an adequate supply of water for the irrigation of arid lands in the Imperial Valley, that such surveys shall be made in sufficient detail so that the character and cost of development shall be shown—such surveys shall also investigate the ways and means by which power may be developed as an incident to the construction of such irrigation works and the value and possible uses thereof.
"All investigations, surveys, and cost estimates contemplated hereunder shall follow a general plan of operation jointly agreed upon by a board, one member to be selected by the district, one by the director of the U'. S. Reclamation Service, and a third by the University of California.
“The surveys shall be made by an engineer duly appointed by the director of the t'. S. Reclamation Service * * * and the engineer shall be authorized to employ all necessary assistants and make all necessary expenditures. * * *
“ On completion of the said surveys and investigations a report thereof shall be made by the engineer of the Reclamation Service in charge of the work. The facts and conclusions reported shall be reviewed by the board, provided for in article 7 hereof. The report of this board shall be published by the U. S. Reclamation Service.' * * * * This report shall contain detailed estimates with suitable explanatory maps, plans, and other documents as exhibits, * * * such reports shall contain specific conclusions and recommendations as to the future policy.'”
The director of the U. S. Reclamation Service appointed W. W. Schlecht as a menber of the board, the University of California appointed Dr. Elwood Mead, and the Imperial irrigation district appointed C. E. Grunsky.
Mr. Porter J. Preston was appointed by the Director of the U. S. Reclamation Service to serve as the engineer in charge of the surveys, examinations, and cost estimates.
The work done in the field and office under the advice this board by Mr. Preston has now been advanced to the point where preliminary conclusions relating to general features of an all-American canal project, together with preliminary cost estimates, can be presented.
In transmitting the following preliminary statement of facts and conclusions the board reserves the right to amplify and modify them if later this is thought to be desirable, and proposes to follow up the summary now submitted with a discussion of the canal features and the problems now but briefly touched upon.
The urgent demand by Imperial irrigation district for the submission of our conclusions at the earliest possible time and our earnest endeavor to comply with the request be taken into account if this preliminary statement is not as complete as might be desired.
Preliminary statement of facts and conclusions. The total area of Imperial irrigation district is 584,700 acres.
The net (ultivable area in Imperial irrigation district is about 515,000 acres.
The net area for which water will be required in Imperial Valley is about 900.000 acres.
The total gross area to which the cost of an all-American canal would be charged may exceed by some considerable amount the net area. This gross area has not been estimated neither for the Imperial irrigation district nor for the outside lands.
The cost of constructing an all-American canal for the irrigation of the arid lands in Imperial Valley is based on the assumption that the canal will have a capacity of 9,000 second-feet. But it should be understood that future increase of capacity will be possible.
An all-American canal to meet only the requirements of Imperial irrigation district, though with some allowance for an expansion of the district, has been planned at a capacity of 6,000 second-feet.
The maximum water requirement for irrigation of the Yuma project including 45,000 acres of mesil land is estimated at 1,600 second-feet, subject, however, to future extensions.
The enlargement of the Yuma project canal from the Laguna Dam to Siphon Drop has been planned at a capacity of 10,600 second-feet for the all-American canal if constructed to serve 900,000 acres in the Imperial Valley and at a capacity of 7,600 second-feet if it is to be built for the Imperial irrigation district alone.
The Laguna Dam should be raised about 2 feet and the shape of its crest should be modified so that there will be less opportunity for drift to hang on the crest. There should be a low section of the crest of adequate length with movable device to provide for control of the line of flow and to permit of some regulation of the river height above the dam.
The Yuma project will require a certain amount of power to pump water from the level of the canal system of the Yuma Valley to the Yuma Mesa. To provide this power a power station, located near Araz, is proposed by the t'. S. Reclamation Service as a project feature. Power is to be generated with water brought from the Laguna Dam through enlarged headworks, an enlarged Yuma Canal to the Siphon Drop and a canal with a capacity of about 4,000 second-feet from the Siphon Drop to the power station, where it is estimated that an installation for the utilization of about 8,500 water horsepower will be required for the generation of electric energy.
The apportionment of cost of utilizing the water power of an all-American canal and of transmitting the electric energy to the Yuma Canal project should be made on the assumption that these tentative plans for the Yuma project will some day be carried out. The Yuma project on this assumption would maintain an interest in canal capacity to the extent of 4,000 second-feet of water to Araz and in power plants to a limit of an installation for the utilization of 8,500 water horsepower, regardless of where the water power is used to generate electric energy.
The distribution of the cost of making alterations at the Laguna Dam and of enlarging the Yuma (anal and building new caral down to the power site at Araz, should be to power and to irrigation in equal amounts, for the water used in the vicinity of Pilot Knob for power or made available for such lise in that vicinity.
Power developments with water of the all-American canal should not be charged with the cost of canal construction beyond Araz.
The first work to be done as a part of the construction of an all-American caral should be the enlargement of the Yuma ('anal and its headworks and the construction of an extension of the enlarged canal at a capacity of either 6,000 or 9.000 second-feet (depending upon whether the all-American canal is to be constructed by Imperial district alone or by the district with the assistance of the outside lands of Imperial Valley down to Pilot Knob, and the installation of a power plant for construction purposes at that point.
The power plant installation for construction purposes at Pilot Knob should be for the utilization of a fall of about 30 feet and the arrangement should be such that if necessary the capacity of the plant can be increased. Provision may some time in the future have to be made also for a stand-by gasoline or steam power plant, but this is not included in the works now necessary. If power is required at any time for operating gates when there is no water in the canal, this will be obtainable from the Southern Sierras Power Co., whose transmission lines have already been extended into this district.
On the all-American canal at two points all can be concentrated and power should be developed. This is to be done at or near the points marked “ Power House" on the “ General Mip" which accompanies Mr. Preston's report. The plants at these points will be referred to as Power Plants Nos. 1 and 2. The installation should be for the utilization of 6,000 second-feet falling about 30 feet at the first station (although at first only 24 feet of fall are to be utilized) and 55,500 second-feet falling about 47 feet at the second station.
The total cost of constructing the all-American canal as described in Mr. Preston's report at a capacity of 9,000 second-feet, not including the two power plants on the mesa, is estimated at $26,732,602. This includes $1.900,000 to be paid to the United States in installments, without interest, for the right to connect with the Laguna Dam and to utilize diverting works in common with the Yuma project.
The total cost of constructing an all-American canal for Imperial irrigation district only, at a capacny of 6,000 second-feet, not including the two power