Papers Relating to the Foreign Relations of the United States, 1926, Volume II

812.81/4

The Ambassador in Mexico ( Sheffield ) to the Secretary of State

Mexico , May 12, 1926 .
[Received May 20.]

No. 2217

Sir: I have the honor to transmit herewith enclosed for the Department’s information, copy and translation of an Executive Decree from the Diario Oficial of May 7, 1926 in regard to the procedure to be followed by the agrarian authorities in the matter of the restitution and dotation of waters.

I have [etc.]

James R. Sheffield

[Enclosure—Translation⁸¹]

Executive Decree of April 8, 1926, Regulating the Functioning of Agrarian Authorities in the Matter of Restitution and Dotation of Waters

Plutarco Elías Calles, Constitutional President of the United Mexican States, to the inhabitants thereof, know ye:

That by virtue of the authority which section I of article 89 of the Mexican Constitution and article 3 of the law enacted by the Congress of the Union on November 22, 1921, confer upon the Executive of the Union; and

Considering, that the Executive in my charge has given especial attention to the study of the agrarian problem, the complete solution of which tends to an assured and effective development of the agricultural wealth of the country through the economic and social improvement of the peasant classes who constitute the great majority of our inhabitants; and has prescribed for the attainment of the proposed aim all those measures in its program which have been deemed appropriate; and

Considering, that, although many of these measures have dealt with and solved some aspects of the agrarian problem, other measures covering aspects of great importance requiring immediate attention remain to be adopted; among these being that one dealing with the restitution and dotation of waters to the villages of the Republic, the regulations of which, on account of their importance, must be given priority; and

Considering, that while in the existing laws on the subject of waters, and particularly in the law of December 13, 1910, the utilization of waters was established as a privilege which the public authority could grant legally, only for the benefit of private interests, article 27 of the Constitution and the law of January 6, 1915, stipulated clearly the right of the villages to recover the waters of which they had been deprived or the dotation of those which they may require for the necessities of life, it being an unavoidable duty of the State to observe and apply fully these provisions which establish rights absolutely distinct from the right of petitioning for some favor or grant which every private person has; and

Considering, that for the application of the constitutional laws above-mentioned, the agrarian authorities, especially the national and local commissions, were created, for whose functioning in that which relates to the restitution and dotation of lands the agrarian regulations of April 10, 1922, were issued, which established nothing relative to the restitution or dotation of waters for which reason these authorities have been functioning in such cases, their actions being based on the 11th transitory article of the Federal Constitution and on the decree of November 1, 1923, relative thereto, which applied the constitutional provisions that were consistent with the legal side of the water problem; and

Considering, that the necessity for regulating the procedure of the agrarian commissions in that which relates to the restitution and dotation of waters is evident, as well as the determination of the part which the Department of Agriculture and Fomento should have in acting upon petitions in order that there should be unity of action among the public authorities who, in the exercise of their powers, are to supervise the legalization of the utilization of waters;

Now, therefore, I have deemed it expedient to decree the following regulations for the functioning of the agrarian authorities in that which relates to the restitution and dotation of waters.

Article 1. The following may request and obtain waters under the head of restitution throughout the Republic:

I. Villages.

II. Hamlets.

III. Congregations (Congregaciones).

IV. Joint ownerships (Condueñzanos).

V. Tribes.

VI. Communities.

VII. Villages and towns which have been totally or partially deprived of the waters which they formerly utilized for domestic and public purposes, as well as for the irrigation of lands which by any title or at any time they may have possessed in common.

Article 2. The following may petition for and obtain waters under the head of dotation for public and domestic purposes and for the irrigation of town site lands or those of communal ownership, or of commons which have been given into their definitive possession throughout the Republic:

I. Villages.

II. Hamlets.

III. Congregations.

IV. Joint ownerships.

V. Communities.

VI. Towns and villages, exclusively for the public and domestic uses of their inhabitants and the irrigation of their common lands.

Article 3. The restitution of waters shall be made whenever the interested parties prove authentically their rights to the waters in question; and that these were taken away from them subsequent to June 25, 1856, by any measure nullified by the 9th paragraph of article 27 of the Constitution.

The dotation of waters shall always be made and in all the cases where it is duly proved that the settlement requesting the waters does not have them or not in sufficient quantity for the domestic, public, and agricultural needs of the town. The dotation will be made of the volume of water strictly indispensable to fulfill these needs, the waters used by small properties being respected, unless the dotation is for the domestic uses of the petitioners.

Article 4. Dotations of waters may be made from those of private property, the property of the States, and the property of the Nation.

In the two first cases the waters shall be expropriated by the Nation, the usufruct shall pass to the benefit of the settlement. In the third case the dotations granted shall have the effect of restricting the utilization legally or otherwise, when the amount disposable is not sufficient to make the dotation effective and to maintain the previous utilizations in the same state.

The restitution and dotation of waters, whatever their jurisdiction may be, give to the settlement benefited the right to the use and utilization of the waters, which use and utilization shall be subject to the police supervision of the Administration of Waters of the Department of Agriculture and Fomento, as well as to the rules which the granting authorities may fix for their interior distribution.

Article 5. The utilization of waters which may be granted for any of the above-mentioned reasons, include, in favor of the settlement benefited, the legal right of way of waters across the lands of the national domain, commons, or private property which may be necessary due to the conditions of extent and location, as the above-mentioned granting authorities may determine. The right of way may be imposed even upon hydraulic works which other service of waters may have established; but in such case this service must be integrally respected whenever it shall not have been affected by the respective decision.

Article 6. The original petition must be signed by the person or persons whom the petitioners may designate as their representatives for this purpose, and it must be presented to the local Agrarian Commission of the corresponding unit of population.

Article 7. Upon receiving a petition, the local Agrarian Commission shall proceed to publish the same a single time in the respective official newspaper; it shall determine from the report of the Governor whether the settlement making the petition comes within any of the political groups specified in articles 1 and 2 of these regulations, as the case may be. The same commission shall ascertain the nature of the waters requested, and shall consult directly with the regional office of the Department of Agriculture and Fomento in making its report.

Article 8. If the waters requested prove to be the property of the Nation or those under Federal jurisdiction, the local Commission, having made a statement as to the legality of the petition shall dispatch the papers to the National Agrarian Commission for its confirmation and decision. If the waters prove to be under the jurisdiction of the States or private property, the petition shall be acted upon by the local Agrarian Commission in accordance with the rules contained in articles 10 and 11 of the present regulations, and in the form and terms established by article 27 of the agrarian regulations of April 10, 1922.

Article 9. When the papers have been received by the National Agrarian Commission, an extract of the petition shall be published a single time in the Diario Oficial of the Federation and the papers shall be open to consultation of all those affected in the offices of the same Commission during a period of 30 working days which cannot be extended, counting from the date of publication, in order that they may take due note thereof and present within the same period the proofs and observations which they consider necessary.

The foregoing notice can be given directly to interested third parties when the National Agrarian Commission has sufficient data to identify and locate them; but in any case the sole publication of the extract of the petition in the Diario Oficial of the Federation shall be sufficient as a notification for all legal purposes.

Article 10. In the cases of petitions for restitution when the period referred to in article 9 has elapsed, an examination shall be made to determine whether the papers presented by the interested parties afford sufficient basis for the restitution sought; if so, the volume of waters to be restored shall be determined as hereinafter provided.

If the papers presented by the interested parties do not justify a restitution, the National Agrarian Commission shall immediately give the respective decision.

The volume restorable shall be the amount legally recoverable unless it be in excess of the actual needs of the petitioners, or unless the titles establishing the restitution do not fix a volume, in which case the procedure shall be determined in accordance with the provisions of the following article.

If any part of the volume restorable is utilized for domestic purposes by another settlement, this part shall be reduced to the indispensable minimum, and shall be deducted from that volume.

Article 11. In cases of petitions for dotation, where the period referred to in article 9 has elapsed, a study shall be made as to what is the volume which must be granted as a dotation to the settlement making the request.

The bases for this study shall be, in the case of irrigation, the irrigable area, the nature of the lands and the crops to which the latter are devoted, the climate, the loss of water through conduction, and the nature and importance of the existing legal uses of the water in relation to the total disposable volume of water; in the case of public and domestic uses, the census of population and number of head of cattle to be provided for; in any event, the amount of water strictly necessary for the respective uses will be fixed.

If it is indispensable to affect the existing legal uses, the volume by which each one of them shall be reduced shall be fixed in accordance with its nature or importance.

When several petitions are presented, all relating to the same stream or source of domestic water, no one of them shall be decided singly without a previous study of a general plan of distribution.

Article 12. Whenever a petition for restitution or dotation of waters affects the streams or reservoirs of water under Federal jurisdiction, the study made of the volume which is to be granted to the petitioning village shall be transmitted to the Department of Agriculture and Fomento, and, if required, a study of the volume necessary to reduce the existing use of the water. Together with these studies there shall be transmitted the necessary data and history of the case. The Department of Agriculture and Fomento, taking into account the regulations of all the uses and utilizations of waters under Federal jurisdiction, under its charge, shall give its decision upon a project within a period of 30 days.

The duly assembled papers, together with the ruling of the Department of Agriculture and Fomento, shall be submitted for the consideration of the National Agrarian Commission in the form and terms established for cases of restitution and dotation of lands, to the end that it may formulate and recommend the respective decision. In each case care should be taken that there be uniformity of opinion between the Department and the Commission before the decision is submitted for the approval and signature of the President of the Republic.

When the decree has been issued by the President of the Republic, a certified copy thereof will be sent to the Administration of Waters, which must make the necessary readjustments and immediately notify the interested parties wherein their contracts, concessions, titles of confirmation are modified, and the volumes by which their use of the water is reduced.

Article 13. When a settlement is to receive provisionally through restitution or dotation lands which have been irrigated by previous owners or possessors of the affected rural property, there may be included in the decree the part relative to the utilization of the volume of waters which corresponded through accession to these irrigable lands, a volume which shall be fixed in relation to the total amount which the affected properties were using and the total surface which they irrigated.

Whenever a provisional possession of waters under the head of an accession is given to a village endowed with irrigable lands, the local Agrarian Commission shall immediately notify the Department of Agriculture and Fomento thereof, in the understanding that as an act of regulation is involved which, if it refers to the use of waters under Federal jurisdiction, is within the exclusive jurisdiction of the Department of Agriculture and Fomento, the provisional decision, in the part regarding the manner and conditions under which the village is to utilize the waters, may be modified by that Department if this is deemed advisable. The National Agrarian Commission shall be informed as to the modification made, for the action which may be necessary in giving the definitive decision in regard to the respective papers.

Article 14. If a settlement is in provisional or definitive possession of common lands, delivered to it by restitution or dotation, within which are included lands irrigated by previous owners or possessors of the affected rural properties, and it has not received the corresponding waters, it may petition the National Agrarian Commission to deliver the volume of water which, through accession, would correspond to the said irrigated lands.

The appropriate study shall be made by the National Agrarian Commission which will take into consideration the following factors: the total surface which has been irrigated by the affected property; the volume of water which the property was using; the manner and conditions under which it used the water; the legal precedents for the use of the water which may be formed in the Administration of Waters of the Department of Agriculture and Fomento, or in the corresponding offices; and the surface of irrigable lands which may have come into the possession of the settlement making the petition. If sufficient data cannot be collected to determine proportionally the volume of waters which corresponds to the irrigable common lands of the village, the decision shall be made, taking into consideration the needs of those lands, in accordance with the provisions of article 11.

If the waters affected by the accession are private property or State property, the National Agrarian Commission shall give and execute, itself, the respective decision.

In the case of waters under Federal jurisdiction, there shall be followed in toto the procedure established in article 12 of these regulations covering restitution or dotation of waters, except the procedure relative to the consultation with the President of the Republic, which will not be necessary whenever due care is taken that there be uniformity of opinion between the Department and the Commission, before the latter gives and carries out the pertinent decision.

Article 15. The utilization of waters under Federal jurisdiction for the benefit of common lands given in provisional possession which had not been irrigated before such possession, may only be made by means of a provisional permit granted by the Department of Agriculture and Fomento.

Likewise this Department may grant provisional permits for the utilization of Federal waters while the respective petitions for restitution and dotation of waters, whether for public and domestic uses or for the irrigation of lands definitively owned, are being acted upon.

Article 16. In order to aid free of charge the villages of the Republic which desire such aid in their negotiations with the agrarian authorities or with the Department of Agriculture and Fomento to obtain utilization of waters, as well as to expedite the application of the provisions of the present regulations, there is established the Office of Solicitor of Waters, directly under the Secretary of Agriculture and Fomento, for the better discharge of its duties.

Article 17. There are excepted the rights of persons who believe themselves affected by the application of the provisions of these regulations, in order that they may exercise them in the terms of article 10 of the constitutional law of January 6, 1915.

Transitory

• Article 1. Papers relating to restitution, dotation, and distribution of waters by accession, which have not been acted upon, must conform with the provisions of these regulations, and of those which in the future may be initiated at the request of settlements which have the right to make such request.
• Article 2. The Office of Solicitor of Waters shall proceed immediately to put in proper form such papers as are now under consideration in the National Agrarian Commission, as well as those to which objection may have been made because of faulty procedure, and shall place the respective petitions in the hands of the local Agrarian Commission.
• Article 3. The present regulations shall become effective from the day of their promulgation, all provisions to the contrary being null and void.

Wherefore, I order this to be printed, published, circulated and given due compliance.

Given in the Palace of the Federal Executive Power at Mexico City , on the 8th day of the month of April 1926.

P. Elías Calles

, Rúbrica

The Secretary of State and of Agriculture and Fomento,

Luis L. León

, Rúbrica

81. File translation revised on basis of Spanish text transmitted to the Department by the Ambassador in Mexico in his despatch No. 2296, May 26, 1926; received June 4. (File No. 812.81/5.)