Part 18

The Mexican Government protested in 1896, stating that before they could accept their share of the water to be stored by the proposed international dam at El Paso, as indemnity for their loss of water taken out on the upper river, investigations should ascertain whether there would be sufficient water in the Rio Grande to supply both dams. If not, measures should be taken to restrain the projectors of the Elephant Butte dam from using waters to which Mexicans had prior right.

This protest was referred to me by the Secretary of State, who asked my opinion.

I reported that in my opinion that it would be unsafe to rely on a sufficient flow to restore to Mexico the water to which she claimed prior right unless the Elephant Butte corporation could be restrained from the use of such water. Suit was instituted by the Attorney General to enjoin the company. So began a contest which lasted for many years, going three times to the Supreme Court of the United States, before the Elephant Butte Company was permanently enjoined from constructing their dam.

These complications delayed both projects for several years. A protocol, dated May 6, 1896, between the Secretary of State, Richard Olney, and Ambassador Romero, directed F. Javier Osorno and myself, Boundary Commissioners for Mexico and the United States, to continue the investigation and report on the following matters:

First, the amount of Rio Grande water taken by the irrigation canals constructed in the United States.

Second, the average amount of water in the river, year by year, before and since the construction of the irrigation canals.

Third, the most feasible method of so regulating the river as to secure to each country and its inhabitants their legal and equitable rights and interests in said water.

Captain George McC. Derby, U. S. Engineers, was ordered to report to me, and Señor Don J. Ramon de Ibarrola, engineer on the part of Mexico, was ordered to report to Mr. Osorno.

The Commission worked diligently on this investigation until November 25, 1896, when it reported its opinion that the most feasible means of attaining the ends desired was to construct the dam and reservoir projected by Mr. Follett and myself under the investigations made by the Geological Survey, provided Mexico could be protected in some way which would prevent the taking from the Rio Grande by dams and water storage of water to which she had prior right. I was authorized by the Secretary of State to formulate with Ambassador Romero a draft of a treaty to that effect, which we accomplished, submitting copies to the Secretaries of State of both nations.

The two nations were willing to consummate the proposed treaty. Congress appeared to be ready to appropriate the necessary money but, again, the unexpected happened. Making violent charges against me to the Secretary of State, Dr. Boyd demanded that President McKinley dismiss me from the Boundary Commission or he would defeat his re-election by his control of two or three western States; and threatened to horsewhip Secretary Hay if he did not do his bidding. Mr. Wilkie, of the Secret Service, reported Dr. Boyd to be a dangerous man, so he was denied further personal conferences in the State Department. (I knew nothing of this for years afterwards.) Boyd then strove to influence Roosevelt (who had become President) against me and the international dam. Mr. Roosevelt, without consulting the Commission having the project in charge, placed it in the hands of Mr. Newell, of the Reclamation Service, with directions to build the dam at Elephant Butte. After some delay another treaty with Mexico (concerning which I, though still Mexican Boundary Commissioner, was not consulted), was effected for building the dam at Elephant Butte. By the terms of this treaty Mexico is to receive a share of the water to be stored by the dam and relinquishes all claims for indemnity for the diversion of the waters of the upper Rio Grande by American citizens.

As Llewellyn threatened, there never was a "new dam at El Paso," largely owing to himself and Boyd. After twelve years, at a cost nearly four times as great as estimated for the international dam at El Paso, the Elephant Butte dam is complete; but it is doubtful whether it will ever be of any great benefit to the valleys near El Paso because of the great distance over which the water has to be carried through arid wastes. Full details may be found in my published reports under the head of "Equitable Distributions of the Waters of the Rio Grande, Vol. 2."

BOUNDARY COMMISSION

I have already explained how this Commission came to be formed and how I was appointed and entered upon the duties as sole Commissioner on the part of the United States (Text, 207). I have also explained the relation of the Commission to the international dam for the equitable distribution of the waters of the Rio Grande, the subsequent Commission by protocol of Commissioner Osorno and myself for the same purpose (Text, 263), and the later Commission for the equitable distribution (Text, 273).

The duty of the International Boundary Commission, briefly stated, is to apply the principles agreed upon by the two governments in the boundary treaties to the varying conditions caused by the kaleidoscopic changes in the current of the Rio Grande.

The boundary treaties of 1848 and 1853 make "the middle of" the Rio Grande the boundary, while the treaty of 1884 provides that the boundary shall "follow the center of the normal channel * * * notwithstanding any alterations in the banks or in the course" of the river "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 of this same treaty provides that "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 * * * shall produce no change in the dividing line."

The treaty of 1889, which established the International Boundary Commission, provides that "when owing to natural causes, any change shall take place in the bed of the Rio Grande * * * which may affect the boundary line, notice of that fact shall be given by the proper local authorities * * * on receiving which notice it shall be the duty of the said Commission to repair to the place where the change has taken place or the question has arisen, to make a personal examination of such change, to compare it with the bed of the river as it was before the change took place, as shown by the surveys, and to decide whether it has occurred through avulsion or erosion for the effects of Articles I and II of the convention of November 12, 1884."

The Commission was organized January 8, 1894, in the office of the Mexican Consul, in El Paso, as follows:

On the part of Mexico:

Jose M. Canalizo, Commissioner Lieut. Col. E. Corella, Consulting Engineer Salvador F. Maillefert, Secretary

On the part of the United States:

Col. Anson Mills, Commissioner Frank B. Dabney, Consulting Engineer John A. Happer, Secretary

The Commission recommended rules for its future government, which were approved by the Secretaries of State of both governments. Before we completed the first case referred to us, Commissioner Canalizo died, and F. Javier Osorno was appointed as his successor.

September 28, 1894, the full Commission again met at El Paso and proceeded to an examination upon the ground of the cases of Banco de Camargo, Banco de Vela, Banco de Santa Margarita and Banco de Granjeno.

These so-called bancos were formed by a combination of "slow and gradual erosion" coupled with "avulsion" in the following manner: Where the river passes through low alluvial bottoms with banks of fragile consistency and slight fall the channel continually changes from right to left, eroding the concave bank and depositing on the convex. This occurs in low as well as high water, though the changes are more marked during high water stages. These erosions are greatest where the water in a tangent from a curve strikes the bank at an acute angle, ceasing when the angle becomes so obtuse that the water is readily deflected by the consistency of the bank. When the curve forms a circle the radius of which is dependent on the consistency of the earth and the volume and velocity of the water, erosions practically cease and the river turns upon itself in a circle and forms a "cut-off," leaving the land thus separated (called a banco) somewhat in the form of a pear or gourd, with the stem cut by the river's current at the moment of separation. (See cut of the double Banco de Santa Margarita. Proceedings Boundary Commission, Vol. I, p. 191.)

In many cases through ensuing changes in the channel an American or Mexican banco would be entirely cut off even from the river and wholly surrounded by land within the jurisdiction of the other country.

The origin of these bancos was so different from our expectations that both the Mexican Commissioner and I, after deliberate consideration, concluded that their process of formation, their form and constantly changing character, could not have been contemplated by the conventions creating the treaties of 1884 and 1889. We both suggested to our governments the reconsideration of Articles I and II of the treaty of 1884, as far as they related to these bancos, to the end that provision might be made for transferring all such bancos to the sovereignty of the United States or Mexico according as they lay on the American or Mexican side of the present river channel, without disturbing the private ownership as it might be ascertained.

This treaty was negotiated and ratified in 1905 and has since then worked to the satisfaction of both governments and resulted in the "elimination" of perhaps 75 of these bancos and the maintenance of the international boundary line in the center of the running river.

Some of the difficulties under which the Commission did much of its work on the lower Rio Grande will appear from the following incident which occurred while the Commission was considering the case of the Banco de Granjeno, near Havana.

The day before the Congressional elections in Texas the Mexican Commissioner joined our camp on the river. Coming by carriage through Havana, he observed a procession of grotesquely clad Americans and Mexicans carrying a flag and beating drums. Mr. Osorno's first experience with United States election methods, the several hundred people in the little town of not more than 20 or 30 inhabitants excited his curiosity as to where all these people had come from. As Reynoca was a large city on the Mexican side, he suspected that many of them were from Mexico. A portly Mexican, much resembling Sancho Panza and clad very much after his style, carried the flag.

The Joint Commission had summoned nine witnesses to appear at our camp the next day at 9 o'clock and testify in the case. But the witnesses did not appear.

Two hours later a messenger from the village stated the witnesses were indisposed from the excitement of the night previous and would not be over until later in the afternoon. At 4 o'clock we observed a party headed by this identical flag-bearer. Not speaking English, he addressed himself to Mr. Osorno, stating that he had been summoned as a witness.

The Commission Regulations prescribe that the witnesses shall be sworn by the Commissioner representing the country of which the witness is a citizen. Asked to state his country, the flag-bearer said he was a Mexican citizen. Mr. Osorno looked astonished.

"Then, you a Mexican citizen?" he asked.

"Yes, sir," answered Sancho Panza.

"Did not I see you at Havana in Texas, yesterday, carrying an American flag?"

"Oh, yes, sir."

"How does it come that you would carry an American flag in Texas if you are a Mexican citizen?"

"Oh, it was election time."

"Election time," said Mr. Osorno; "what have you to do with elections in Texas?"

"Oh, we all go over there for elections!"

Understanding the habits of the frontier people better than Mr. Osorno, I suggested asking if he had voted. Rather reluctantly Mr. Osorno said:

"Did you vote in Texas?"

"Oh, yes, sir."

"Well, how can you be a Mexican citizen if you vote in Texas?"

"Oh," said Sancho, "if you don't believe I am a Mexican citizen I will show you a certificate of my consul!" pulling out a paper signed by the Mexican Secretary of the Boundary Commission, formerly Mexican Consul at Brownsville, certifying he was a Mexican citizen.

Though Mr. Osorno was a lawyer and well versed in international law and custom, he was much perplexed but finally administered the oath. During the course of the examination of the other nine witnesses examined we found six claimed to be Mexican citizens though admitting they had voted in Texas the day before, which explained the fact that although the registered voters in that county numbered but 650, the Democratic majority footed up over 1,200!

The population along this part of the river, on both sides, speak Spanish almost exclusively, and their habits, sympathies, and general characteristics are entirely Mexican. The people are the poorest and least progressive of any I have ever seen, except the North American Indians. The extreme drought for the seven preceding years had made them poorer than for generations, and their numbers were less than for the past hundred years. Most of our witnesses were unable to tell their ages, or where they had lived during particular years. Most claimed citizenship in Mexico, but voting rights in the United States.

The jurisdiction of the Commission included a great variety of cases involving questions as to location of the boundary lines as affected by changes in the channel of the river, "elimination" of the bancos, unduly projecting jetties or other obstructions in the channel of the Rio Grande, marking of international bridges, question of artificial cut-offs in the river channel, etc., etc.

The nature of the Commission's work can perhaps best be explained by treating two important and typical cases in some detail.

The Horcon Ranch case grew out of an artificial cut-off of the river channel. The Rio Grande at the Horcon Ranch near Brownsville, Texas, formed two loops. (Cut, 288.)

The natural course of the water appeared to be about to form a cut-off at A, whereby the upper loop would have been eliminated. The result would have been to deprive the American riparian proprietors on the upper loop of the water they had theretofore enjoyed for irrigation.

Among these was the American Rio Grande Land and Irrigation Company, which had a large pumping station at B, on the upper loop. To counteract the threatened danger the American proprietors, after vainly striving for months to prevent the cut-off at A by defensive works, dug an artificial channel at C, across the neck of the lower loop, straightening the river, relieving the pressure at A and averting the threatened disaster to the company's pumping station. This deprived Mexican riparian proprietors, on the lower loop, of the water they had been accustomed to use and to which they were entitled. The boundary treaties expressly forbid such artificial cut-offs and provide that they shall not affect the international boundary.

The Mexican Government brought the case to the Commission, which promptly held the cut-off a clear violation of the treaty. Not feeling clear as to its power to take the necessary remedial measures, the Commission reported its findings to the two governments and asked for instructions. The American State Department approved the findings, but thought the Commission had fully discharged its duty, and that subsequent proceedings should be taken in the ordinary courts. It asked the Department of Justice for an opinion. The Attorney General concurred in these views and at the instance of the State Department brought a suit in equity in the name of the United States against the American Rio Grande Land and Irrigation Company, asking a mandatory injunction to compel the defendant company to restore the river to its original channel, or, as an alternative, for the conveyance of land in the upper loop owned by the company to the Mexican riparian proprietors so they might have a river frontage, together with the payment of compensatory damages to these proprietors and both compensatory and punitive damages to the United States.

The President of the American Rio Grande Land and Irrigation Company, Mr. Edward C. Eliot, of St. Louis, and its general counsel, Mr. Duvall West, now a Federal District Judge, were men of the highest type. When the matter was brought to their attention they recognized the correctness of the position of the government. By agreement between the representatives of the Government and these gentlemen, the company admitted the cause of action and the truth of the material allegations in the government's bill, and submitted to the alternative relief prayed. An order was accordingly entered by the court which not only adjusted the matter to the satisfaction of the Mexican Government and the Mexican citizens interested, but brought home to the people of both countries along the river the intention and power of the two governments to live up to their treaty obligations. (For full particulars see the pamphlet published by the Boundary Commission, which gives all the important papers in the case, including the proceedings both before the Boundary Commission and before the Federal court.)

Further to illustrate the work of the Commission, I call attention to Chamizal case at El Paso, Texas. The Chamizal tract is a body of land of some 600 acres south of the channel of the Rio Grande as it ran when surveyed by Emory and Salazar in 1853 and north of the present river channel. In 1894 the Chamizal case was referred by the Mexican Foreign Office to the Commission on the complaint of one Garcia, a Mexican citizen, who claimed to own land in the Chamizal tract which had been cut off from his holdings on the Mexican side by the change in the course of the river.

The question at issue, under the provisions of the boundary treaties, as formulated by the American Commissioner and accepted by the Mexican Commissioner at the session of the Commission on November 6, 1895, was "whether or not the river in its passage moved over the land by gradual erosion from the Mexican bank and deposited on the United States bank, as described in Article I of the treaty of 1884, or by sudden avulsion, by cutting a new bed or deepening another channel than that which marked the boundary."

The case was tried at El Paso by Commissioner Osorno and myself; Messrs. Maillefert and Happer being the secretaries of the Commission, and Messrs. Corella and Dabney consulting engineers. We limited the witnesses to four of the most trustworthy of the older inhabitants on each side. Their testimony showed there was no basis for any claim that there had been any avulsion or cutting of a new bed. The change in the channel was clearly erosive, although at certain or rather "uncertain" times and places during floods the erosion had been much more rapid than others, and had been visible to the naked eye, since as the lower substratum of sand was washed out, the upper layer of clay along the concave or Mexican bank would cave in, sometimes in considerable chunks. The building up of the convex or American shore, however, had always been imperceptibly gradual.

The Mexican Commissioner reduced his argument to the following syllogism:

"Major proposition: Any change other than slow and gradual does not alter the boundary line (Article I of the Convention of November 12, 1884).

"Minor proposition: Since the change of the river in the case denominated 'El Chamizal' _was not slow and gradual_, but, on the contrary, violent and at periods of time of unequal intermissions (which has been fully demonstrated above).

"Conclusion: Thence, the change of the river at the lands of 'El Chamizal' does not alter the boundary line marked in 1852 by the International Boundary Commission (Article II of the Convention of 1884)."

I held that the treaty "clearly specifies but two classes of changes in the river," namely, erosive and avulsive, and that "any other unspecified change, as is implied in the major proposition of the syllogism of the Mexican Commissioner, we have no authority to consider, but that our respective conclusions must be in favor of one or the other, as specifically stated in the treaty."

I furthermore held that:

"The syllogism of the Mexican Commissioner must be rejected, not only because its minor proposition is not proven, but because it is abundantly disproven by every witness who testified in the case save Serna."

I further pointed out that in my opinion:

"* * * If the change at El Chamizal has not been 'slow and gradual' by erosion and deposit within the meaning of Article I of the treaty of 1884, there will never be such a one found in all the 800 miles where the Rio Grande, with alluvial banks, constitutes the boundary, and the object of the treaty will be lost to both governments, as it will be meaningless and useless, and the boundary will perforce be through all these 800 miles continuously that laid down in 1852, having literally no points in common with the present river save in its many hundred intersections with the river, and to restore and establish this boundary will be the incessant work of large parties for years, entailing hundreds of thousands of dollars in expense to each government and uniformly dividing the lands between the nations and individual owners, that are now, under the suppositions that for the past forty years the changes have been gradual, and the river accepted generally as the boundary, under the same authority and ownership; for it must be remembered that the river in the alluvial lands, which constitutes 800 miles, has nowhere today the same location it had in 1853."

Commissioner Osorno and I disagreed on the proper construction of the words "slow and gradual, erosion and deposit of alluvium" rather than on matters of fact. No decision could be rendered and the disagreement was reported to our governments, where the matter remained in a diplomatic state until 1910, when it was again referred to the Commission, enlarged for this case only by the appointment of a (presiding) commissioner, a Canadian jurist, to be selected by the two governments. The case was again brought to trial in El Paso in 1911, with the Commission constituted as follows:

Hon. Eugene Lafleur, of Montreal, Canada, Presiding Commissioner.

On the part of Mexico--

F. Beltran y Puga, Commissioner. E. Zayas, Consulting Engineer. M. M. Velarde, Secretary.

On the part of the United States--

Anson Mills, Commissioner. W. W. Follett, Consulting Engineer. Wilbur Keblinger, Secretary.

The two governments were represented as follows:

On the part of Mexico--

Señor Joaquin de Casasus, Agent. W. J. White. K. C., of Montreal, Canada, Counsel. Seymour Thurmond, of El Paso, Associate Counsel.

On the part of the United States--

William C. Dennis, Agent. Walter B. Grant, of Boston, Mass., Counsel. Richard F. Burges, of El Paso, Associate Counsel.