OCR Text |
Show n"3uoh a servitude, however, if its existence be conceded, would not cover the present case or afford any real analogy to ito The servient country may not obstruct the stream so as to cause the water to back up and overflow the territories of the othero The dominant country may not divert the course of the stream so as to throw it upon the territory of the other at a different place* (See authorities supra,,) In either of such cases there would be a direct invasion and injury by one of the nations of the territory of the othere But when the use of water by the inhabitants of the upper country results in reducing the volume which enters the other, it is a diminution of the servitude. The injury now complained of is a re- mote and indirect consequence of acts which operate as a deprivation by prior enjoyments So it is evident that what is really contended for is a servitude which makes the lower country dominant and subjects "the upper country to the burde~n""of arresting its development and de- nying to its inhabitants the use of a provision which nature has sup- plied entirely within its own territory« "Such a consequence of the doctrine., of international servitude is not within the.language used by any writer with whose works I am familiar, and could not have been within the range of his thought without finding expression, "Both the comnon and the civil law undertake to regulate the* use of the water of navigable streams by the different persons en- titled to it. Neither has fixed any absolute rule, but both leave each case to be decided upon its own circumstances. But I need not enter upon a discussion of the rules and principles of either system in this regard, because both are municipal and, especially as the>y relate to real property, can have no operation beyond national boun- daries. (Creasy Int. Law, p. l6ii«) So they can only settle rights of citizens of the same country, inter seser The question must,, therefore, be determined by considerations different from those which would apply between individual citizens of either country» Even if such a question could arise as a private one between citizens of one country, and those of another, it is not so presented here. The mere assertion of the claims by liexico would make it a national one even if it were of a private nature. (Gray vf. United States, 1 C; CLs. R. 391-392») But the use of water complained of and the resulting injuries are general throughout extended regions, so that effects upon individual rights can not be traced to individual causes, and the claim is by one nation against the other in fact as rell as form. The fundamental principle of international law is the absolute sovereignty of every nation, as against all others, within its own territory,, Of the nature and scope of sovereignty with respect to judicial jurisdiction, which is one of its elements, Chief Justice Matshall said (Schoonover Exchange vs. HcFaddon, 7 Cranch, p. 1^6): rThe jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limi- tation not .imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty, to the extent of the restriction^ |