AZ vs. CA:24 California Exhibits, Vol. XXIV; Miscellaneous

page A61

COMPACT-STATEMENT BY NORVIEL----ARIZONA A61 of water allotted to the lower basin for Arizona out of the 7,500,000 from the Colorado. In addition there would be the difference between 19,000,000 and 7,500,000 plus 5,000,000, which would leave 6,500,000 unallotted and subject to appropriation under the law of appropriation. California having been fully satisfied, there is then 10,000,000 acre feet in the river for Arizona, if she can use it, 3,500,000 under the compact and 6,500,000 unallocated. No rights in Mexico are recognized in the compact. There is at this time, however, approximately 950,000 acre feet of water used in Mexico. The only treaty now in force between the United States and Mexico pertaining to the Colorado river is the Gadsden treaty of 1853, and that pertains only to the rights of navigation, wherein the citizens of the United States are granted the right of navigating the river between the United States and the gulf. There was no attempt to create or reserve to Mexico or her citizens any rights or to impose on the United States or their citizens any restraints with respect to the use of water for irrigation, although rights of property were secured to all Mexicans who had a claim upon the same. Though some writers of international law say that in a treaty of peace, such as the Treaty of Guadalupe Hidalgo, of 1848, which first fixed the rights of the two nations relative to the Colorado river, a strict construction should be placed upon the terms of the treaty against the dominant nation, but nothing should be implied. The Gadsden treaty was not a treaty of peace and the terms are clear. There is, therefore, no treaty right reserving to or granting to Mexico a right to irrigation water from the Colorado. Nor is there any law or relationship between the two countries binding the United States to recognize a priority of appropriation in Mexico. The United States as a distinct soverignty may take and use all the water when she will and break no law or obligation. As a matter of comity the United States may, and probably will, enter into a treaty with Mexico regarding irrigation water, but certainly not to the extent of granting rights to water needed for irrigation in the United States. In the treaty between the two countries respecting irrigation water for Mexican lands from the Rio Grande, signed by Elihu Root and Joaquin D. Casasus, this expression appears: The delivery of water as herein provided is not to be construed as a recognition by the United States of any claim on the part of Mexico to the said waters. And further: The United States, in entering into this treaty, does not thereby concedes expressly or by implication, any legal basis for any claims heretofore asserted or which may be hereafter asserted by reason of any losses incurred by the owners of land in Mexicxa due or alleged to be due to the diversion of the waters of the Rio Grande within the United States.