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.)
Horcon Cut-off. (Text, 286.)
Banco de San 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.