No. 266.
Mr. Frelinghuysen to Mr. Romero.
Washington , July 10, 1884.
Sir: Your notes of the 13th of March, 24th of May, and 2d and 12th of June of the present year, have presented the question of the disputed ownership of two islands in the Rio Bravo, near Roma, Tex. This question has received the careful consideration due to its importance, and I have now the honor to acquaint you with the reply of this Government to the representations made on behalf of that of Mexico, and especially to the detailed case presented with your note of 12th June.
The two islands, as you state, are known in Spanish as Morteritos and Sabinitos, and in your note of the 2d of June it is assumed that they are the islands designated as Nos. 12 and 13 at the time of the original survey.
This is, however, incorrect of Sabinitos Island, which appears in the maps of the original survey made by the boundary commission in 1853 as No. 14, and is therein credited to Mexico. As the papers submitted by you show no question of importance affecting the island of Sabinitos (No. 14) it may be laid aside for the present.
The question seems to be confined to the island known as Morteritos, which appears in the charts of the boundary commission as Beaver Island, No. 13.
This island was formerly the most southerly and the larger of two pod-shaped islands lying in a bend of the river near the Texan town of Roma. The channel, never at any time navigable, which formerly separated the two islands is now dry, and the channel to the northward of [Page 394] the twin island so formed is the widest, and at the present time the deepest of the two arms of the river.
The Mexican claim to jurisdiction rests briefly on the following bases:
- 1.
- A scientific report of the engineer, Garfias, dated 16th April, 1880, which argues that the present deepest channel to the northward must always have been the deepest (and therefore under the treaty of Guadalupe Hidalgo the boundary line between the two countries), in pursuance of an observed peculiarity of rivers by which the deepest flow of water follows the hollow of a curve in the river bed.
- 2.
- Ownership by Mexican citizens, and an agreement among said owners, in March, 1874, whereby the island of Morteritos and its accretions were confirmed to them under the authority of Mexico.
The second of these points is to be dismissed forthwith from consideration, for this Government does not admit, nor if the case were reversed is it to be supposed that the Mexican Government would admit, the. right of alien owners of land to transfer, under color of any judicial agreement whatsoever, the territorial domain over their estates to the jurisdiction and sovereignty of the nation to whom such individuals owe allegiance. This position is, moreover, wholly opposed to the contention of the Mexican Government itself, that the territorial jurisdictions established on behalf of the respective parties to the treaty of Guadalupe-Hidalgo remain forever as originally fixed under that compact, and are not to be affected by any abrupt changes in the course of the river Bravo.
This reduces the question to one of simple fact, namely, the ascertainment of the boundary channel fixed by the commissioners under the treaty of Guadalupe Hidalgo.
To the end of ascertaining that fact, an examination of the original records and charts of the commissioner of survey has been made by Brig. Gen. W. H. Emory, of the United States Army, under whose supervision, as commissioner on the part of the United States, the original survey and determination of the boundary was effected.
That officer, under date of the 19th ultimo, reports as follows:
* * * By reference to original notes and maps in State Department, I find Islands Nos. 12 and 14 were assigned to Mexico, and 14, I believe to be Island Sabinos [Sabinitos] referred to by Señor Romero.
Island No. 13 was assigned to the United States. It is no doubt the island called by Señor Romero Morteritos, and by me Beaver Island. I say of that island, in my report, that “the waters of the Rio Grande are divided at that point into three parts, and the channel that lies nearest to the Mexican shore is so narrow that steamers can with difficulty pass through it, yet the branches, by reason of their shallowness, are wholly impassable for them. An attempt was made by the Mexican local authorities to arrest a steamboat in its passage through the narrow channel, but the actual experience of the navigator proved it to be the true channel and consequently the boundary between the two countries.
It was further agreed between the commissioners that in case the channel changed, the right of navigation should remain unimpaired to both countries, but the jurisdiction of the land should remain as we had arranged.
So far as the question of territorial jurisdiction in the event of a change in the channel is concerned, the agreement of the commissioner remains merely an expression of opinion, which, however valuable as an enunciation of a theoretical principle, has not been confirmed as between the two Governments. That of Mexico has, however, on various occasions, put forth this principle as its own, and a proposal has been made through your predecessor, Señor Mariscal, and through you, to negotiate a formal conventional agreement on that basis in settlement of disputes touching the true river boundary under the treaty of Guadalupe Hidalgo. That proposal is now under attentive consideration.
[Page 395]As to the original ownership of the two islands known by the United States commission as Beaver Islands, being the island known to your Government as Morteritos, and the smaller island lying parallel with Morteritos, and to the north of it, there can be no doubt that they were by the survey assigned to the United States.
Against the actual record of the commission (the original charts of which you have been afforded an opportunity of inspecting in person in company with General Emory) the speculative and scientific report of Engineer Garfias and his survey and soundings, made seventeen years after the original official determination of the boundary channel, can have no weight whatever, being based on an evidently changed condition of things, whereby the old middle water-course between the two islands has disappeared, and the most northerly of the three channels has been deflected and deepened in the process of time.
This Government must deny the implication conveyed in your note of June 12, and its accompaniments, that the United States have tacitly acquiesced in the jurisdictional rights from time to time assumed by the Mexican local authorities over the territory covered by the islands in question. No case in point has arisen to call the attention of this Government to the question. The owners of the land were Mexican citizens, as it appears, and their acquiescence in the Mexican claims of jurisdiction over their land, although natural under the circumstances, was wholly devoid of any confirmatory power as against the rights of the United States under the treaty. It was not until very recently, when the action of the Mexican authorities of Mier developed a wholly untenable claim to jurisdiction over a broad tract of low-lying land on the United States bank of the river, which land it was pretended had at some time become united with one of the islands through the filling up of the water-way between them, that a case calling for investigation and action was presented, involving also, as it does, the question of the true ownership of the island claimed to have been enlarged by the accretion of United States territory. The rights of the United States in the premises remained, perhaps, dormant, hut without laches on their part, and, on the issue being revived, those rights revive, too, in all their force.
Touching the reference in your note to the statement found on page 65 of the Report of the Boundary Survey, that “Islands Nos. 12 and 13, between Ringgold Barracks and Roma, both fall to the United States,” it should be here stated that the report is erroneous, through a typographical mistake. The original charts and notes show that Island No. 12 is a small island, named “Green Key Island” on the charts, situated in an abrupt bend of the river, about half way between Fort Ringgold and Morteritos Island. Island No. 13, as already shown, comprises the twin Beaver Islands, whereof the larger and more southerly was called by the Mexicans Morteritos. The Island known to both parties as Sabinitos (or Sabinos) is marked No. 14 on the chart, and lies a short distance above Roma.
In conclusion, I have the honor to inform you, in answer to your several notes, that the facts and record of the case warrant and demand that the Government of the United States shall regard its territorial jurisdiction over the island of Morteritos, otherwise Beaver Island (No. 13), as established by the boundary commission under the treaty of Guadalupe Hidalgo, and, consequently, that the Mexican pretension to that island and to accretions thereto from the left or United States bank of the Rio Grande shall be denied.
Accept, &c.,