(2) WATER LINES.

§ 160.

In 1884 a discussion took place between the United States and Mexico in regard to the ownership of two islands, called by Mexico Morteritos and Sabinitos, in the Rio Grande. Mexico claimed the islands as Nos. 12 and 13 in the printed report of Maj. William H. Emory, chief of the United States boundary commission, under the treaty of Guadalupe Hidalgo. The United States found, on examination of the original surveys, that the printed report was, by reason of a typographical mistake, erroneous; that the island of Sabinitos was numbered 14 in the original surveys and assigned to Mexico; that island No. 12 was called Green Key Island and also was assigned to Mexico; but that island No. 13 comprised twin islands called the Beaver Islands, the larger of which was known by the Mexicans as Morteritos, and that these islands were assigned by the commissioners to the United States. The United States therefore declared that the record required that it should "regard its territorial jurisdiction over the island of Morteritos, otherwise Beaver Island (No. 13), as established by the boundary commission under the treaty of Guadalupe Hidalgo, and consequently that the Mexican pretension to that island and to accretions thereto from the left or United States bank of the Rio Grande shall be denied."

The Mexican Government, subsequently admitting the confusion in names, stated that it had "decided not to insist upon the rights of Mexico over the island of Morteritos in the supposition that it is island No. 13, or Beaver Island," and added:

"The bases of this decision rest upon the stipulations of the fifth article of the treaty of Guadalupe Hidalgo of February 2, 1848, that the dividing line between our two countries from the Gulf of Mexico to Paso del Norte should be the center of the Rio Grande, and that where this river had more than one channel the line should follow the deepest. This circumstance being borne in mind by the boundary commission in laying down the line, the channel which lay to the south of island No. 13, or Morteritos, or Beaver Island, left this island upon the side of the United States.

"As this is the basis presented by the Government of the United States to defend its rights to that island, it thus recognizes that the limits between the two Republics are those fixed by the treaty of Guadalupe Hidalgo, such as were laid down by the mixed commission, without having been altered by the changes occasioned by the current of the river, whether in its margins or the deepest of its channels."

Mr. Romero, Mex. min., to Mr. Frelinghuysen, Sec. of State, May 24, June 2, and June 12, 1884; Mr. Frelinghuysen, Sec. of State, to Mr. Romero, Mex. min., July 10, 1884; Mr. Frelinghuysen, Sec. of State, to Mr. Morgan, min. to Mex., July 11, 1884; Mr. Morgan, min. to Mex., to Mr. Frelinghuysen, Sec. of State, Aug. 12, 1884; Mr. Romero, Mex. min., to Mr. Frelinghuysen, Sec. of State, Oct. 9, 1884; For. Rel. 1884, 380-382, 393, 373, 375, 396.

"It has been held in this Department that when, through the changing of the channel of the Rio Grande, the distance of an island in the river from the respective shores has been changed, the line adjusted by the commissioners under the treaty [of Guadalupe-Hidalgo] is nevertheless to remain as originally drawn." (Mr. Bayard, Sec. of State, to Mr. Bowen, June 12, 1886, 160 MS. Dom. Let. 162.)

"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.

"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 alteration 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 Commissions 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.

"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 divid

ing line as determined by the aforesaid Commissions in 1852 or as determined by Article I. hereof and under the reservation therein. contained; but the protection of the banks on either side from erosion by revetments of stone or other material not unduly projecting 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 rights 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, of the aforesaid Treaty of Guadalupe Hidalgo; and such common right shall continue without prejudice through 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. Done at the city of Washington, this twelfth day of Novem

ber, A. D. 1884.

"FREDK. T. FRELINGHUYSEN. [SEAL.] "[SEAL.] M ROMERO."

While the foregoing convention settled general principles, questions inevitably arose as to their application in particular cases.

In 1888 representations were made to the Mexican Government, at the instance of the city of El Paso, Tex., in relation to certain wingdams which the Mexican authorities were constructing at Ciudad Juarez, on the opposite shore of the Rio Grande, for the ostensible purpose of protecting the shore from erosion. Engineers were sent by the two Governments to consider the situation and confer upon it. After the close of their conferences, the United States, on receiving the report of its engineers, suggested that, “in view of the apparent subjection of the questions presented at Ciudad Juarez to the stipulations of the river-boundary convention of November 12, 1884, and of the

immediate prospect of a convenient forum for their adjustment being afforded as the result of the negotiation" then about to be concluded for an international boundary commission," the work should be suspended, unless the complaint should be removed by a modification of the plans.

Mr. Bayard, Sec. of State, to Mr. Connery, chargé at Mexico, No. 258, Feb. 13, 1888, For. Rel. 1888, II. 1110 et seq., and 1241; Mr. Romero, Mex. min. to Mr. Bayard, Sec. of State, Nov. 12, 1888, For. Rel. 1889, 615; Mr. Bayard to Mr. Romero, Nov. 14 and 15, 1888, id. 616; Mr. Romero to Mr. Bayard, Dec. 6, 1888, id. 617; Mr. Bayard to Mr. Romero, March 1, 1889, id. 621. It is from the note of Mr. Bayard of March 1, 1889, that the quotations in the foregoing summary are made. The convention referred to below, was signed later in the day. For the full report of Major Ernst, the United States engineer, Dec. 12, 1888, see S. Ex. Doc. 144, 50 Cong. 2 sess. 43. See Mr. Sherman, Sec. of State, to Mr. Romero, April 12, 1898, referring to an understanding for "the continuance of repairs upon heretofore authorized defensive facings on the Mexican bank [of the Rio Grande, at Ciudad Juarez], while prohibiting the building of new works [i. e., a new wing dam] in the river bed itself, not authorized by the commision." (MS. Notes to Mex. Leg. X. 388.)

By a convention concluded March 1, 1889, provision was made for the establishment of an international commission, commonly called the International Water Boundary Commission, which should have jurisdiction of questions arising under the convention of November 12, 1884. The commission thus provided for consists of two commissioners, one appointed by each Government, two consulting engineers appointed in the same manner, and such secretaries or interpreters as either Government may see fit to appoint. If the two commissioners agree, their decision is final unless either Government shall within a month from its rendition disapprove it. In case either Government shall disapprove it, both Governments engage to take cognizance of the matter and to decide it amicably, bearing constantly in mind the stipulations of Article XXI. of the treaty of Guadalupe Hidalgo in favor of arbitration where practicable. The two Governments also engage to proceed in the same manner in case the two commissioners disagree. It was provided that the convention should remain in force five years from the date of the exchange of ratifications. The ratifications were exchanged December 24, 1890. In his annual message of December 9, 1891, President Harrison stated that Mexico had named her members of the commission, and that an appropriation was " necessary to enable the United States to fulfill its treaty obligation in this respect." By a convention of October 1, 1895, the powers of the international commission were extended for a year from December 24, 1895, to enable the commission to "conclude the examination and decision of the cases sub

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mitted to it." Other extensions were subsequently provided for; " and at length, by a convention signed November 21, 1900, the ratifications of which were exchanged on the 24th of the following month, the convention of March 1, 1889, was extended indefinitely.

"I have to acknowledge the receipt of your letter of the 3d instant, in which, as attorney for the El Paso and Northeastern Railroad Company, you complain that the United States and Mexican International (Water) Boundary Commission has recommended the removal of certain embankments and other obstructions made by the company in the construction of its road.

"You protest against the commission's action, and ask for a hearing before this Department on the ground:

"1. That the engineers have made a mistake as to the facts concerning the embankments and other structures; and

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2. That there is no warrant in the treaties or laws of the United States for such proceedings as seem to be contemplated in the action of the commissioners.

"The action of the commissioners was taken under the convention between the United States and Mexico of March 1, 1889, and the conventions continuing it in force. By Article VIII. of that convention, it is stipulated that if both commissioners shall agree to a decision their judgment shall be considered as binding upon both Governments, unless one of the Governments shall disapprove it within one month, reckoned from the day on which it shall have been pronounced. The decision of the commissioners on the matter to which you refer was duly pronounced on the 3rd of May, more than a month before the receipt of your letter; and, some days previously to the receipt of your letter, the decision was expressly approved.

"The Department would upon this ground alone be precluded from granting your request for a hearing; but it is proper to add that, if the decision had not already become operative under the convention, no ground has, in the opinion of this Department, been disclosed for its considering the question of setting aside the decision of the commissioners. As to the question of their legal authority. it is only necessary to advert to the circumstance, to which reference has already been made, that the proceedings of the commissioners were taken under a duly ratified treaty, which is, by the Constitution of the United States, a law of the land.

"As to questions of fact touching the embankments and other structures, this Government has pursued the only practicable course of acting upon the reports of representatives specially appointed for the purpose of informing it upon such matters."

a See For. Rel. 1897, 403–405.