If such a plan should be adopted, it would make soldier or civilian settle ment on this area, by the California Land Settlement Board, costly, if not impossible. No large area could be secured without paying high prices to those who had, under this act, bought from the Government at a nominal price. Such a performance would be a travesty. It would show an entire absence of foresight.

SETTLEMENT SHOULD BE AIDED AND DIRECTED BY THE GOVERNMENT.

I believe, therefore, that the sale of these lands in advance of development would be a social and economic mistake. The mesa lands ought to be regarded as one of the fields where democracy can show what it can do for those that need its aid. Every influence which those interested in the progress of rural civilization could exert would, I am sure, be brought to bear to secure the funds for the construction of the irrigation works as a part of this policy. This matter has not been brought to the attention of the State land settlement board, but, at our meeting on Thursday, August 14, I will call attention to the benefits which would come to the State and to settlers by its undertaking to aid and direct the settlement of, say, 40,000 to 50,000 acres of this area found to be suitable by the soils experts of the university. Some of the funds to be provided by the State bond issue could nowhere be used to better advantage than in helping to create homes on this unpeopled area. If the State were to direct and aid in the development of such an area, it would mean loans to the settlers of fully $2,000,000 to help to improve and equip their farms. It would put these settlers on their feet and in a position to meet payments on water rights and improvements and create in a short time homes of comfort and prosperity that would make this valley a source of pride and satisfaction, not only to the State, but to the Nation. The same results would follow soldier settlement on a larger area under the Mondell bill. No such results would follow the plan outlined in the Kettner bill. It would be an unplanned development where a large percentage of the land would be held by nonresident owners and cultivated by tenants. This is a feature that we must struggle to avert with energy and persistence.

I sympathize with the efforts of all those that are seeking this development, even where I differ with them as to methods. The land and water are unused. Great values can be created, but I believe we have come to the point when we must consider public resources like land and water as a trust to be administered in the public interest and thus make economic democracy a concrete reality which all can see and understand.

I hope that these views will commend themselves to you and others interested and that steps will be taken to amend. the Kettner bill along the lines indicated. I would suggest, as helping to bring about an agreement, that a conference be held where this matter would be dealt with as a State problem. That is what it is. People in all parts of the State long to own farms. Many of these people would like to secure homes in this area. The university would be a convenient place for a gathering of State agencies interested in rural progress. These would include, among others, the State engineering office, the State water commission, the irrigation investigations, the State land settlement board, the college of agriculture, the United States Reclamation Service, and delegates from the irrigation district, the board of supervisors, the American Legion, and the farm bureau of Imperial County and district. Can not such a conference be held in the near future?

Sincerely, yours,

ELWOOD MEAD.

OPINION OF PHIL. D. SWING IN RE UNITED STATES TREATIES WITH MEXICO.

OUR TREATIES WITH MEXICO DO NOT PROHIBIT TAKING OF WATER OUT OF COLORADO ON AMERICAN SOIL, EVEN THOUGH IT AFFECTS THE NAVIGABLE CAPACITY OF THE RIVER.

A great deal of confusion seems to exist in the discussion of legal and treaty rights in and to the waters of the Colorado River. I think in some instances the confusion has been induced through geographical uncertainty and the fact that some rivers have more than one name.

Article VII of the treaty of 1848 (Guadalupe Hidalgo), which deals solely with the Rivers Gila and Rio Bravo del Norte, has sometimes been quoted as

constituting a guarantee to Mexico of the navigability of the Colorado River. It is as follows:

"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 boundaries shall be free and common to the vessels and citizens of both countries, and neither shall, without the consent of the other, construct any works 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. Nor shall any tax or contribution, under and 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 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."

It is apparent, however, from the mere reading of this article that it refers solely and wholly to the Gila and the Rio Bravo del Norte. The Rio Bravo del Norte was and is another name for the Rio Grande, and was so understood and intended by the plenipotentiaries, as shown in the first sentence of Article V where they refer to the "Rio Grande, otherwise called Rio Bravo del Norte." The Gila, of course, is a tributary or branch of the Colorado River, flowing into it from an easterly direction at Yuma, Ariz. It might be thought by some that the name "Gila was intended to cover not only the tributary proper but also that part of the Colorado River below the juncture of the two streams. Article V, however, shows that the plenipotentiaries knew that the name Gila applied only to the tributary and that below its juncture with the Colorado the river was called the Colorado.

In describing the boundary line, they say—

"thence northward along the western line of New Mexico, until it intersects the first branch of the Gila; thence down the middle of said branch and said river, until it empties into the Rio Colorado; thence across the Rio Colorado, etc."

That they knew that the river below the Gila was called the Colorado, and that they so used the name is further shown in Article VI, where it is said: "The vessels and citizens of the United States shall in all times have a free and uninterrupted passage by the Gulf of California and by the River Colorado below its confluence with the Gila, it being understood that this passage is to be by navigating the Gulf of California and the River Colorado and not by land, etc."

From the foregoing it must be very apparent that Article VII is wholly foreign to the Colorado River, which is neither mentioned nor in anywise referred to therein.

The only provisions in the treaty of 1848 relating to the Colorado River are to be found in the first paragraph of Article VI and are as follows:

"The vessels and citizens of the United States shall in all times have a free and uninterrupted passage by the Gulf of California and by the River Colorado below its confluence with the Gila to and from their possessions situated north of the boundary line defined in the preceding article, it being understood that this passage 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." From this Article VI it is clear that the right to navigate the Colorado River was not guaranteed "free and common to the vessels and citizens of both countries" (as was the case with the river Gila and Rio Bravo del Norte, under the provising of Article VII, but only to "the vessels and citizens of the United States."

However, the provisions above quoted were expressly "abrogated and annulled" by Article IV of a subsequent treaty negotiated in 1853 and proclaimed June 30, 1854, known as the Gadsden Treaty, and new provisions "substituted therefor." Said Article IV is as follows:

"The provisions of the sixth and seventh 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 abrogated 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 being understood that this passage 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 be scrupulously 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 seventh article of the treaty of Guadalupe Hidalgo shall remain in force only so far as regards the Rio Bravo del Norte below the initial of the said boundary provided in the first article of this treaty; that is to say, below 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 upward according to the fifth article of the treaty of Guadalpe."

Article IV is divided into two paragraphs; the first, after providing for abrogating and annulling articles 6 and 7 of the former treaty, defines the rights of the two countries in the Colorado River; the second paragraph deals solely with the Rio Bravo del Norte (Rio Grande). In this second paragraph “the several provisions, stipulations, and restrictions contained in the seventh article of the treaty of Guadalupe Hidalgo" are expressly referred to and readopted by direct reference for the Rio Bravo del Norte, but in the first paragraph where the Colorado River is discussed, absolutely no reference whatever, either direct or indirect, can be found to Article VII of the former treaty, except to say that it is "abrogated and annulled."

So much of the former treaty as applied to the Colorado River was readopted in the subsequent treaty by rewriting into the first paragraph of Article IV thereof practically word for word the provisions of Article VI of the old treaty. To this was then added the following sentence, which is the source of all trouble:

"And precisely the same provisions, stipulations, and restrictions, in all respects, are hereby agreed upon and adopted and shall be scrupulously 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 meaning of this sentence is not entirely clear, but to say that it refers to Article VII of the treaty of 1848 necessitates bodily writing into it or grafting on to it a reference to said article where such reference in fact does not exist. If the makers of the treaty intended to refer to the provisions of Article VII and make them applicable to the Colorado River, they could have easily done so in few and simple words. That they knew how to adopt, by apt reference, the provisions of the former treaty is admirably exemplified in the last paragraph of Article IV and again in Article V. The fact that they could have easily expressed such intention, but did not, raises a strong presumption that they did not so intend.

Again, if it had been the intention of the plenipotentiaries that both rivers where they form the common boundary should be governed by the same provisions, it would have been more natural and reasonable to have simply included the Colorado River in the same sentence which dealt with the Rio Bravo del Norte, and, for instance, to have said that the several provisions, stipulations, and restrictions contained in the seventh article of the treaty of Guadalupe Hidalgo shall be continued in force and made applicable to the Colorado River and the Rio Bravo del Norte so far as the middle of said rivers constitutes the common boundary line between the two countries. The fact that the two rivers are treated separately and differently shows an intention at the two rivers were not to be governed by the same provisions. Also the fact that in the paragraph relating to the Rio Bravo del Norte an express reference is made to Article VII of the former treaty, while in the one relating to the Colorado River such reference is omitted, evidences a further intention on the part of the makers that the provisions of said Article VII should not apply to the Colorado River. As the sentence under discussion contains no express reference to the former treaty or to any of its articles, either by name of number, it might, with equal force, be contended that the reference-if any there is-referred not to Article VII but to Article VI of the 1848 treaty; and reading the sentence in that light it would mean that precisely the same provisions as were then in force on the Colorado River were readopted and continued in effect under the new treaty.

This interpretation seems no more unreasonable or unnatural than the one based on making a reference to Article VII.

Again, if the provisions of Article VII of the old treaty are, by any construction placed on the first paragraph of Article IV of the treaty of 1854, made applicable to the Colorado River, then said Article VII applies to both the Colorado River and to the Rio Bravo del Norte, because the next paragraph expressly adopts the provisions of said Article VII for the latter stream. But this can not be, for the treaty of 1854 expressly limits and restricts the provisions of said article to the said Rio Bravo del Norte. The wording of the treaty in that respect is as follows:

"The several provisions, stipulations, and restrictions contained in the seventh article of the treaty of Guadalupe Hidalgo shall remain in force only so far as the Rio Bravo del Norte below the initial of said boundary line prescribed in the first article of this treaty, etc."

While, perhaps, no one of the foregoing considerations standing by itself would appear conclusive, yet when taken altogether they seem to clearly indicate an intention that the provisions of Article VII should not apply to the Colorado River as was the case with the Rio Bravo del Norte, but that the Colorado River should be governed by different provisions. This seems to be the interpretation placed on these treaties by no less eminent authority than John Bassett Moore, who says:

The territorial situation having been changed by the cession to the United States of the Mesilla Valley by the treaty of December 30, 1853, it was stipu lated by the same treaty (Art. IV) that the vessels and citizens of the United States should continue to have free and uninterrupted passage of the Gulf of California and the River Colorado to and from their possessions north of the new boundary, and that the stipulations and restrictions of the treaty of Guadalupe Hidalgo as to the Rio Grande should remain in force only below latitude 31° 47' 30". (Vol. 1, Moore Digest International Law, p. 639.)"

Finally, there seems to be a reasonable interpretation which can be given to the sentence in question without doing violence to its construction. The whole controversy begins and ends with the meaning to be given to the word "same."

"And precisely the same provisions, stiuplations, and restrictions in all respects are here agreed upon and adopted and shall be scrupulously 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."

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The interpretation which makes this sentence refer to and adopt the provisions, stipulations, and restrictions of Article VII of the former treaty must construe the word the "same" as being a correlative conjunction used in the sense the same-as." But this presumes the vital word "as" was unintentionally omitted. Furthermore, there is nothing which precedes the word same to which it can possibly refer. I believe the word same is used in this sentence as a simple adjective meaning "similar," "like," or "identical"; and that the makers of the treaty had in mind that for that part of river which constituted the common boundary line "precisely the same (i. e., identical) provisions should be observed and enforced by each nation; for although equally divided, in theory, between the two nations, where it is their boundary, the river is in fact a unit and engineers agree it must be treated as such to avoid dangerous consequences. Hence it was proper for the treaty provided that for the distance it was their common boundary it should be governed by the same "-i. e., like or identical-provisions, stiuplations, and restrictions. While this interpretation imposes certain obligations on the United States, they fall far short of guaranteeing the navigability of the Colorado River to Mexico.

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And this further point should be noted, that whatever the treaty obligation may be that is thus imposed upon the United States, it is only obligated to observe it "so far and for such distance as the middle of that river is made their common boundary line by the first article of the treaty." No restriction is imposed or attempted to be imposed on what the United States may do with the river within its own boundaries.

Finally, a word about the treaty of 1884, proclaimed 1886. That this was not a treaty intended as changing existing rights or giving new ones is clearly indicated in the preamble which sets forth its purpose, as follows:

"To avoid difficulties which may arise through the changes of channel to which those rivers (Rio Grande and Colorado) are subject through the opera

tion 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."

The reference to navigation is to be found in the second paragraph of Article V. The first paragraph provided that the jurisdiction of either country over that part of its lands separated by a change in channel should continue. Paragraph 2 is as follows:

"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 of 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 changes herein provided against, may be comprised within the territory of one of the two nations."

The mere reading of this provision shows it was not intended to "affect " existing rights, but that "such " rights should "continue" in force as they were before without change. As I have shown, the only place where Article VII applies is on the lower Rio Grande. The former treaties did not make the navigation of the lower Colorado common to both countries, but only to the vessels and citizens of the United States. Again assuming it was intended to make the right of navigation on the Colorado River common to both countries, it appears, if at all, only to the "actually navigable channels" of said river, and, as I will hereafter show, the lower Colorado is not actually navigable.

And finally the reference as to what part of the Rio Grande and the Colorado was intended to be affected by this treaty provision is so inapt, ambiguous, and unintelligible that it is void for uncertainty. Only one of the termini for the Rio Grande is actually given and that is its mouth. The second point by some unexplainable but apparent mistake is omitted. Likewise only one of the termini is given for the Colorado and that is "where the Rio Colorado ceases to be the international boundary." But there are two points on that river, 20 miles apart, which exactly fit this description, one at the intersection of the southern boundary of California and the other at the southern boundary of Arizona.

My conclusion, therefore, is that the treaty of 1884-1886 was not intended to, nor does it affect navigable rights on the Colorado, but that such rights continue as before under the treaty of 1854 (Gadsden treaty).

This view of our Mexican treaties is vigorously supported in the opinion of Attorney General Judson Harmon (21 Official Opinions, 274) in interpreting similar provisions relating to the Rio Grande, and also in the opinion and report of Judge M. C. Burch, special assistant to the Attorney General, rendered in 1903, upholding the right of American citizens to divert the water of the Colorado River, where the diversion is made within the United States. Nothing is to be found to the contrary in the decision of the Supreme Court in the case of the United State v. Rio Grande Dam & Irrigation Co. (174 U. S., 690). In the decision the Supreme Court avoided passing on the treaty provisions and decided the case on the construction of the United States statute adopted in 1890 (26 Stat., 454, sec. 10), prohibiting "the creation of any obstruction not authorized by law to the navigable capacity of any waters of which the United States has jurisdiction.”

The decision, however, sets out an important distinction, which, in my opinion, shows that they would have given the treaties a different interpretation from that given the statute of 1890. Referring to the language of the statute above quoed, they said: "It is not a prohibition of any obstruction to navigation, but any obstruction to the navigable capacity." "Navigation" is the act of navigating or passing up or down upon the waters of a stream. "Navigable capacity describes the depth, width, and general condition of a stream with reference to the possibility of vessels passing over its waters. Navigation is a fact; navigable capacity is a theory. So there can be navigable capacity " where no navigation" in fact exists.

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In none of the treaties with Mexico does the United States undertake to guarantee the navigable capacity of any of the rivers. In Article VII of the treaty of 1848 the United States does guarantee navigation on the Gila and Bravo where they are the common boundary line, and agrees not to "construct any works that may impede or interrupt the exercise of this right" (i. E., navigation).