This its affluents flow, the water in the river had been so greatly diminished as to create a scarcity in the lower part of the stream, to the great damage and hardship of numerous inhabitants of Mexico. was represented as a violation both of the principles of international law and of Article VII. of the treaty of Guadalupe Hidalgo of February 2, 1848. It was advised 1. That the rules of international law imposed upon the United States no duty to deny to its inhabitants the use of the water of that part of the Rio Grande lying wholly within the United States, although such use resulted in reducing the volume of water in the river below the point where it ceased to be entirely within the United States, the supposition of the existence of such a duty being inconsistent with the sovereign jurisdiction of the United States over the national domain. 2. That Article VII. of the treaty of Guadalupe Hidalgo, although it prohibited“any work that may impede or interrupt, in whole or in part," the exercise of the right of navigation, was limited in terms to "the part of the Rio Bravo del Norte lying below the southern boundary of New Mexico," while Article IV. of the treaty of December 30, 1853, continued in force the provisions of Article VII. “ only so far as regards Rio Bravo del Norte below the initial of said boundary provided in the first article of this treaty." Harmon, At.-Gen., Dec. 12, 1895, 21 Op. 274. The Attorney-General, in concluding his opinion, said: "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." (21 Op. 283.) August 4, 1896, the Mexican Minister at Washington presented to the Department of State a petition from Mexican citizens in and about Paso del Norte, Mexico, protesting against the immoderate use of waters of the Rio Grande and its tributaries by residents of New Mexico and Colorado. The Mexican minister called attention to Article VII. of the treaty of February 2, 1848; to the last clause of Article I. of the treaty of December 30, 1853; to Article III. of the convention of November 12, 1884, and to Article V. of the convention of March 1, 1889; and, on the strength of these stipulations, asked the United States Government to prevent the erection and operation by a company known to the complainants as the "Rio Grande Irrigation Company (Limited)," at Elephant Butte, in New Mexico, about 125 miles above Paso del Norte, of a dam designed to store all the surplus waters of the river and turn it into irrigation ditches and canals. 66 It appeared on inquiry that the company had filed an application in the Interior Department of the United States for a right of way for a dam and reservoir at Elephant Butte, and that this application had been approved by the Secretary of the Interior under sections 18 to 21 of the act of March 3, 1891 (26 Stat. 1095, 1101 and 1102). By section 10, however, of the act of September 19, 1890 (26 Stat. 426–454), the “creation of any obstruction, not affirmatively authorized by law, to the navigable capacity of any waters in respect of which the United States has jurisdiction," is prohibited; the continuance of any such obstruction, except bridges, piers, docks, wharves, and similar structures erected for business purposes," is made an offense, each week's continuance being deemed a separate offense; and every person or corporation guilty of creating or continuing any such unlawful obstruction is punishable by a fine not exceeding $5,000, or by imprisonment (in the case of a natural person) not exceeding one year, or by both, in the discretion of the court. The creating or continuing of the obstruction may besides be prevented, and the obstruction itself may be caused to be removed, by an injunction granted in proceedings instituted under the direction of the Attorney-General of the United States. Moreover, by section 3 of the act of July 13, 1892 (27 Stat. 88-110), (amending section 7 of the act of September 19, 1890), it is declared to be unlawful " to build any . . . dam. . . or structure of any kind in any navigable waters of the United States . . . in such manner as shall obstruct or impair navigation, commerce, or anchorage of said waters," without permission of the Secretary of War. .. No permission having been obtained for the erection of the dam across the Rio Grande at Elephant Butte, the question was suggested whether the river in the parts which would be affected was not navigable water of the United States within the meaning of the statutes above quoted, so as to make the sanction of the Secretary of War a requisite to the lawful erection of the dam. There was information tending to show that the Rio Grande was navigable for commercial purposes between the United States and Mexico, and possibly between the States of Colorado and the Territory of New Mexico; that, while it possibly would not float water craft of great size, it had been used in the timber commerce of the country; and that it was in its natural state capable of regular periodical, if not perennial, use as a waterway for commercial traffic between two States of the Union or between the United States and a foreign country. This, if true, would make it a navigable stream of the United States within the meaning of the laws for the protection of such waters and would render proper the adoption of the most effective measures to keep it so. This question was not covered by the Attorney-General's opinion of December 12, 1895, supra, which merely held that the stipulations of the treaties concerning the navigation of the river were inapplicable above the point where it ceased to be the common boundary, and did not consider whether it was navigable water above that point in the sense of the Federal statutes. Mr. Olney, Sec. of State, to Sec. of War, Jan. 13, 1897, 215 MS. Dom. Let. See, also, Mr. Olney, Sec. of State, to Sec. of Interior, Jan. 11, 1897, 215 May 24, 1897, the Attorney-General of the United States filed a bill against the Rio Grande Dam and Irrigation Company to restrain it from constructing the dam above referred to, and the bill was afterwards amended so as to include the Rio Grande Irrigation and Land Company (Limited), a British corporation. It was alleged that the latter company, which was a lessee of the former, intended to construct works to control the entire flow of the Rio Grande at the point in question; that the river received no addition to its volume between that point and the mouth of the Conchos River, 300 miles below; and that, owing to the nature of the soil and the rapidity of evaporation, little of the impounded waters would after their distribution be returned to the river. The bill also averred that the Rio Grande had been navigated by steamboats 350 miles from its mouth up to Roma, Tex.; that it was susceptible of navigation above Roma to a point 350 miles below El Paso, Tex.: and that it had been used between El Paso and La Joya, 100 miles above Elephant Butte, for the floating and transportation of rafts, logs, and poles. The bill finally alleged that the impounding of the waters above Elephant Butte would seriously obstruct the navigable capacity of the river throughout its entire course from that point to its mouth. The answer of the defendants, after setting forth the approval of their application by the Secretary of the Interior, declared that the entire flow of the Rio Grande during the irrigation season at the point where they intended to construct reservoirs had long since been diverted and used by other parties, and that their only object was to store and use such waters as had not been already legally diverted, their purpose being to use chiefly the excess storm and flood waters, which went to waste. The answer also denied that the river was susceptible of navigation or had been navigated above Roma, or had been beneficially used or was susceptible of being used for navigation in New Mexico, or that the proposed works would deplete the flow so as seriously to obstruct the navigability of the river at any point below the proposed dam. The court dismissed the bill on the ground that the Rio Grande was not navigable within the limits of New Mexico, and that the United States, therefore, had no jurisdiction in the case. An appeal having been taken to the Supreme Court of the United States, that tribunal, upon the proofs, concurred in the conclusion that the Rio Grande was not navigable within the limits of New Mexico. Nor was it necessary, said the court, to consider the treaty stipulations between the United States and Mexico. The questions arising under treaties or international law might under other circumstances be interesting and important, but as it appeared that the United States was under an equal obligation to preserve the navigability of its navigable waters for its own people, the court would confine itself to the consideration of the case in that aspect. By the act of September 19, 1890, it was, said the court, obvious that Congress meant that there should thereafter be no interference with the navigability of a stream without the national assent. It was urged, however, that the operation of the act was limited to obstructions in the navigable portion of a navigable stream, and that, as the Rio Grande was not navigable in New Mexico, the statute did not there apply to it; but the court declared that the terms of the act embraced not merely obstructions to navigation, but any obstruction, wherever or however created, within the jurisdiction of the United States, which tended "to destroy the navigable capacity of one of the navigable waters of the United States." The decree of the court below was therefore reversed, and the case was remanded with instructions "to order an inquiry into the question whether the intended acts of the defendants in the construction of a dam and in appropriating the waters of the Rio Grande will substantially diminish the navigability of that stream within the limits of present navigability, and if so, to enter a decree restraining those acts to the extent that they will so diminish." United States v. Rio Grande Dam & Irrigation Co. (1899), 174 U. S. 690. The commissioners of the New York State reservation at Niagara, Niagara River and in their report for the fiscal year ending September 30, 1898 (pp. 12–13), say: Great Lakes. "The volume of the river and cataract at Niagara is of course dependent upon the water supply of the Great Lakes. The Niagara River is but the overflow of Lake Erie, into which flow the waters of the other lakes. The lowering of the level of these lakes would diminish the flow into Lake Erie and reduce the volume of the Niagara River. Any very large withdrawal or diversion of water from one or more of the Great Lakes would scarcely fail to be noticeable in a reduced flow at the cataract. "The commissioners deem it advisable that the National Government be requested to appoint a commission to confer with a Canadian commission as to the means to be devised to prevent any excessive H. Doc. 551-42 diversion of the waters of the Great Lakes, and to consider the whole subject of the uses and control of these waters, and to report its conclusions to Congress, with such recommendations as it may desire to submit." N. Y. Assembly Documents, 122nd session, 1899, vol. 2, pt. 2. See report of 4. STRAITS. (1) DIVISIONAL LINES. § 133. The question of the limits of territorial jurisdiction in and over straits or narrow passages leading from one body of water to another is governed by substantially the same principles as that of the limits of territorial jurisdiction in and over rivers. 66 By the treaty of June 15, 1846, it was agreed (Art. I.) that the boundary between the United States and the British possessions westward of the Rocky Mountains should follow the forty-ninth parallel of north latitude to the middle of the channel separating the continent from Vancouvers Island, and thence proceed southerly through the middle of said channel, and of Fuca's Straits, to the Pacific Ocean: Provided, however, That the navigation of the whole of said channel and straits, south of the forty-ninth parallel of north latitude, remains free and open to both parties.” By this stipulation, as well as by their acts subsequent to the award of the German Emperor of October 21, 1872, in the case of the San Juan water boundary, the contracting parties showed their intention to treat the entire waters of the Straits of Fuca as territorial. "The straits of Juan de Fuca are not a great natural thoroughfare or channel of navigation in an international sense; and in view of their situation it is not apprehended that any other nation can make reasonable objection to the jurisdiction of the Government of the United States and of Great Britain over their entire area. The breadth of the narrowest point is believed to be about ten miles, but is not equal to the width of the Delaware Bay and other bodies |