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: