Rio Grande between the United States of America and the United States of Mexico,' etc. 'Washington Government Printing Office, 1901,' p. 221.) On December 10, 1888, I wrote a letter to the Secretary of State formally submitting to him an outline of a project which I had conceived for an international dam and water storage on the Rio Grande near El Paso, Tex.1 (Testimony, p. 209.) On April 12, 1889, I received an order from the War Department to proceed to El Paso, Tex., and assist the officers of the Geological Survey in an effort to redeem the areas of irrigable land in that valley within a radius of 60 miles above and below El Paso.2 On April 19 I received further instructions from Major Powell, Director of the Geological Survey, in which he took occasion to emphasize the international character of the questions involved, and directed me to consult with the Mexican officials and assure them of the desire of his office to proceed with due regard to the rights of Mexico. (See my report, testimony, pp. 180, 181.) I carried out my instructions, and on October 10, 1889, made my report giving the results of my investigations pursued in cooperation with the Mexican officials, and recommended the building of an international dam at one of two possible sites in the gorge above El Paso. (Testimony, pp. 180,208.) "On April 29, 1890, Congress passed a concurrent resolution entitled, 'Concerning the irrigation of arid lands in the valley of the Rio Grande River, the construction of a dam across said river at or near El Paso, Tex., for the storage of its waste waters, and for other purposes.' 5 (S. Doc. 154, 57th Cong., 2d sess., p. 9.) This resolution recites the exhaustion of the water of the Rio Grande available for irrigation, caused by means of irrigating ditches and canals taking the water from said river and other causes,' and the damage and confusion wrought by the annual floods on the river; and authorizing negotiations with the Government of Mexico for the purpose of remedying these difficulties. (S. Doc. 154, 57th Cong., 2d sess., pp. 9, 10.)

"On October 30, 1893, I was appointed the first American commissioner upon the International Boundary Commission, United States and Mexico, under the convention of 1889, and thereafter on May 6, 1896, Secretary of State Olney and Senor Romero, the Mexican minister, signed a protocol reciting that it was essential for the conduct of the negotiations contemplated by the foregoing resolution that certain facts should be ascertained, and directing Senor Osorno, the Mexican commissioner, and myself to investigate and report upon the following questions:

"1. The amount of water of the Rio Grande taken by the irrigation canals constructed in the United States of America.

2. The average amount of water in said river, year by year,

1 Major Mills to the Secretary of State, December 10, 1888. Appendix to the Answer, pp. 163-169.

2 Col. Anson Mills, Supervising Engineer, Geological Survey, to Col. E. S. Nettleton, October 10, 1889. Appendix to the Answer, p. 170.

3 Id., p. 171.

4 Id., pp. 170-181.

5 Concurrent resolution of Congress, April 29, 1890. Appendix to the Answer,

p. 145.

before the construction of said irrigation canals and since said construction, the present year included.

"3. The best and most feasible mode, whether through a dam to be constructed across the Rio Grande near El Paso, Tex., or otherwise, of so regulating the use of the waters of said river as to secure to each country concerned and to its inhabitants their legal and equitable rights and interests in said waters.'1 (S. Doc. 229, 55th Cong., 2d sess., p. 34.)

"We proceeded in this investigation at a cost of several thousand dollars, found a suitable site for a dam in the El Paso Canyon, and reported to the two Governments plans and specifications for the dam and reservoir, and an estimate of its cost-about $2,300,000.2 (S. Doc. 229, 55th Cong., 2d sess., p. 31, et seq., especially p. 40.) A tentative draft of a treaty providing for the construction of the proposed dam was drawn up as the result of informal conferences between the Mexican minister, Assistant Secretary of State Adee, and myself, and was formally submitted by the Mexican minister the the Secretary of State (S. Doc. 229, 55th Cong., 2d sess., pp. 180-182); and later on several bills to the same end were introduced in Congress.

"Meanwhile, however, the project for an international dam at El Paso had attracted the attention of a group of men in El Paso and elsewhere, who conceived the idea of anticipating the erection of the proposed international dam by appropriating all the water which would be available therefor, by obtaining the right to construct a dam at some point higher up the river, thus putting themselves in an advantageous, strategic position enabling them to compel the United States Government to subsidize their project in order to discharge its treaty obligations to Mexico. (Testimony, pp. 7, 66, 70-71, 123, 124.) These gentlemen in 1893 organized the Rio Grande Dam & Irrigation Co., under the laws of New Mexico. On February 1, 1895, this company obtained the approval of the Secretary of the Interior, under the act of March 3, 1891, for its filings for a right of way and reservoir site in connection with a dam to be constructed at Elephant Butte, N. Mex. (S. Dec. 229, 55th Cong., 2nd sess., p. 4), a point on the Rio Grande some 115 miles above El Paso.

"Doctor Boyd, to whom reference has already been made, became interested in the new company early in its history, and soon became its leading spirit. (See his letter to the Secretary of State, July 11, 1902.) Not being able to finance the company in the United States, he went abroad for capital, and succeeded, about 1896, in organizing an English holding company known as the Rio Grande Irrigation & Land Co. (Ltd.) to acquire by lease and assignment the franchises and rights of the Rio Grande Dam & Irrigation Co. On August 4, 1896, the Mexican minister, Mr. Romero, addressed a protest to the

1 Protocol, May 6, 1896. Appendix to the Answer, p. 225.

2 Col. Anson Mills, Commissioner to the Secretary of State, November 25, Appendix to the Answer, pp. 261-272.

1896.

3 The Mexican Minister to the Secretary of State, January 5, 1897, and January 30, 1897. Appendix to the Answer, pp. 284, 308.

4 The Secretary of the Interior to the Commissioner of the General Land Office, February 1, 1895. Appendix to the Answer, p. 256.

1

American Secretary of State against the activities of this company, on the ground that it would be useless to build an international dam at El Paso in order to secure to the Mexican landowners in the El Paso Valley their prior water rights, if the English company at Elephant Butte was to be permitted to appropriate all the water in the river. (S. Doc. 229, 55th Cong., 2d sess., pp. 2, 3.) The Secretary of State referred this protest to me, August 8, 1896, requesting my suggestions.2 (S. Doc. 229, 55th Cong., 2d sess., p. 11); and on November 17, 1896, as soon as the investigations of the joint commission regarding the amount of water taken from the Rio Grande in the United States, and the former flow of the river, had been sufficiently completed, I made a report to the effect that there was not sufficient water to supply the projected dam of the English company and the proposed international dam at El Paso, and therefore recommended that if practicable the approval of the reservoir of the Rio Grande Land & Irrigation Co. (Ltd.), at Elephant Butte, be canceled or withdrawn, and if not practicable to cancel or withdraw the same, that such executive or legislative restriction be placed upon it as to prohibit it from using any part of the flow of the river to which the inhabitants of either bank of the river below may have a prior right by appropriation.3 (S. Doc. 229, 55th Cong., 2d sess., p. 13.)

"Further correspondence between the Departments of State, Interior, the War Department, and the Attorney General resulted in suit being instituted in the Federal courts by Attorney General McKenna to restrain the building of the dam by the English company. These proceedings were instituted upon the theory that the construction of the proposed dam at Elephant Butte, N. Mex., would impair the navigability of the Rio Grande in violation of the statutes of the United States and our treaties with Mexico. In the course of these proceedings, I gave my testimony under oath, like any other witness, on behalf of the Government."

DR. SCOTT'S REPORT.

The ground covered by General Mills in this brief chronological statement is covered more fully in a report of the then chief law officer for the Department of State, Solicitor James Brown Scott, to the Secretary of State, on February 8, 1910. Dr. Scott's report was the result of one of the many departmental investigations made on account of Dr. Boyd's repeated charges, and to this report, which is printed in full in the Appendix to the Answer, reference is respectfully made.

1 The Mexican Minister to the Secretary of State, August 4, 1896. Appendix to the Answer, p. 235.

2 The Secretary of State to Col. Anson Mills, Commissioner, August 8, 1896. Appendix to the Answer, p. 250.

Col. Anson Mills, Commissioner, to the Secretary of State, November 17, 1896. Appendix to the Answer, pp. 253-257.

+ The Solicitor for the Department of State to the Secretary of State, February 8, 1910. Appendix to the Answer, pp. 558-572.

THE CONSIDERATIONS LEADING TO THE GOVERNMENT'S SUIT.

The record amply shows that the action of the Government of the United States in bringing suit to enjoin the prosecution of the claimant company's dam and reservoir scheme was brought about by two considerations: First, the claim on the part of the Government of Mexico that Mexican citizens on the Mexican side of the El Paso Valley were being deprived of water rights which they had enjoyed for hundreds of years, by the withdrawal of water for irrigation purposes on the upper Rio Grande wholly within American territory; and, second, the large pretentions and doubtful intentions of the claimant company which announced, in what the Attorney General of the United States later called its "flaming prospectus,"" that

"in acquiring this splendid natural reservoir site [i. e., the site at Elephant Butte] the company will obtain control of the entire flow of the Rio Grande in southern New Mexico, the only practical means of irrigating what is now considered to be the finest fruit and vine country in the United States. In controlling the water the company will, to a great extent, control the irrigable lands.''2

The Mexican Claims.

It is true that Attorney General Harmon had given an opinion to the effect that Mexico had no legal claim, under the treaties between the United States and Mexico and the principles of international law, to object to the diversion of the waters of the Rio Grande wholly within the territory of the United States. But it is also true that Mexico had steadily refused to accept that view. And, furthermore, Attorney General Harmon had said, in concluding his opinion:

"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.''5

1 The Attorney General to Mr. J. L. Campbell, January 4, 1901. the Answer, p. 415.

Appendix to

2 Prospectus of The Rio Grande Irrigation & Land Co. (Ltd.) Appendix to the Answer, p. 240 at 241.

3 The Attorney General to the Secretary of State, December 12, 1895. Appendix to the Answer, pp. 204-211.

4 See the following references in the Appendix to the Answer. Concurrent Resolution of April 29, 1890, p. 145; Correspondence with the Mexican Minister, pp. 187, 188, 189, 193, 200, 216, 225, 227, 235, 316, 368, 416, 485, etc.

The Attorney General to the Secretary of State, December 12, 1895. Appendix to the Answer, p. 211.

Whatever may be the strict principle of law,-and it is unnecessary to remind this Tribunal that the opinion of the Attorney General of the United States would not have been conclusive upon that point in an international forum,-it is undeniable as a matter of comity and good neighborly relations in an arid country that some equitable arrangement should be reached by agreement between two nations situated upon the upper and lower reaches of a stream, particularly when the stream in its lower reaches is the international boundary, as to the distribution of the waters of that stream for the purposes of irrigation. The United States has taken this view not only upon its southern, but upon its northern border, as evidenced by the treaty with Mexico of 1906 for the equitable distribution of the waters of the Rio Grande1 and by the Boundary Waters Treaty of 1909 between the United States and Canada2 which makes, by Article 6, special provision for the equitable distribution of the waters of the St. Mary and Milk Rivers. In line with this policy, the Rio Colorado has already been the subject of study by a joint commission of the United States and Mexico. In this connection reference is made to Article IV, section (c) of the Proposed Colorado River compact between seven states of the United States."

The Claimant Company's Pretensions.

Turning to the second consideration which motived the United States to bring suit against the claimant company, viz., the pretentions and intentions of the company, it must be borne in mind, as stated in General Mills' letter to Secretary Root' that the Government's plan for an international dam at El Paso was first in the field, having been projected by General Mills in 1888;5 that the Rio Grande Dam & Irrigation Company, the American company, of which the claimant English company is an outgrowth, was not incorporated until 1893, and only secured approval of its right of way from the Interior Department on February 1, 1895." The promoters of the American company obtained information as to the proposed international dam from General Mills and laid their plans to anticipate the Government

1 Appendix to the Answer, p. 110.

2 Id., p. 112.

3 Id., p. 748.

4 Supra, p. 10.

5 Major Mills to the Secretary of State, December 10, 1888. Appendix to the Answer, p. 163.

6 The Secretary of the Interior to the Commissioner of the General Land Office, February 1, 1895. Appendix to the Answer, p. 256.