After two days investigation I found the canal company charter

authorized them to build their canal through and over the community

canals of the settlements along the river, in use for over one

hundred years, and compel the Mexican farmers to pay water rent for

new canals. The farmers, having prior right to the use of the water,

objected.

In Washington, the Secretary proposed a hearing on February 2, 1889,

and asked a written report from me, to be read at the meeting, in

which I recommended the license be revoked.

Senator Reagan, of Texas, the delegate from New Mexico, Mr. Llewellyn,

and many others interested, were present at the meeting. After reading

my report and a full hearing of both sides, the Secretary revoked the

license and instructed the commanding officer of Selden to remove

Llewellyn's workmen from the reservation. Mr. Llewellyn grew violently

angry at me, and on my return to the hotel I found the following note:

THE EBBITT HOUSE,

Washington, D. C.,

Feb. 2nd, 1890.

DEAR MAJOR:

I have wired Messrs. Davis and Morehead to have their people

keep out, that if there is no new ditch at Las Cruces there will

be no new dam at El Paso.

W. H. H. LLEWELLYN.

Davis and Morehead advocated the El Paso dam.

When the committee reached El Paso, August 20, 1889, Major Powell,

Colonel Nettleton, Mr. Follett and I explained our plans in detail.

They and the members from that district and Mr. Lanham, who was much

interested in the project, all approved.

Meanwhile the Mexican Government demanded compensation from the

United States for the appropriation by American citizens of the waters

of the Rio Grande, to which Mexico claimed prior right. A bill was

introduced in both Houses of Congress making an appropriation for the

construction of the El Paso dam by the United States, provided Mexico

relinquished all claims for indemnity in return for half the water to

be stored.

This bill was thoroughly discussed in both Houses of Congress during

the session of 1889 and 1890, and was apparently satisfactory to all

parties concerned, and it was generally supposed that it would pass.

On April 26, 1890, having finished the duties required of me, the War

Department relieved me and I rejoined my regiment.

When it was evident the United States was committed to building a dam

at El Paso and dividing the water with Mexico, Dr. Nathan Boyd, of

New Mexico, obtained a charter from New Mexico to build a similar dam

at Elephant Butte, one hundred and twenty-five miles above El Paso,

with the apparent intention of holding up the waters of the Rio Grande

and the United States Government and compelling it to supply water to

Mexico through his company. (See Colonel Engledue's address to the

stockholders of Boyd's company, p. 343, vol. 2, Boundary Commission

Proceedings.)

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."

[Illustration: MEXICAN BOUNDARY COMMISSIONERS.

JACOBO BLANCO.

F. BELTRAN Y PUGA.

(Text, 300.)]

[Illustration: JOINT U. S. AND MEXICAN BOUNDARY COMMISSION.

CUNNINGHAM, HAPPER, MAILLEFERT,

CUELLAR, DABNEY, MILLS, OSORNO,

CORELLA.]

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.)

[Illustration: HORCON CUT-OFF.]

[Illustration: (Text, 286.)

[Illustration: BANCO DE SAN]

[Illustration: MARGARITA. (Text, 283.)]

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:

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