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Show -73- side of the boundary* <- » » a(153a It is then provided that the Commission may suspend provisions for equal division of water in cases of temporary diversion wherever local interests, for the time being, make a departure from the rule advisable; that approval of the Commission may be made conditional upon construction of remedial or protective works to compensate for the particular use or diversion proposed, and the Commission may require indemnity against injury to any interests on either side of the boundary; that.where the water level is elevated by such works or uses, the Commission may require compensation to be paid to-all in- jured parties, that a majority of the Commission may render a decision but if equally divided the matter in controversy shall be referred to their re- spective governments for adjustment 154 It will be observed that this treaty establishes an excellent regime over one of the greatest international waterways of the world, without any material invasion of territorial sovereignty, and yet with scarcely the possibility of a controversy arising beyond the jurisdiction of the governing commission to adjust in accordance with the principles set forth in the agreement of the two. nations« 153a 36 Stat. at L* 2448, 2451-2452, 3 Halloy's Treaties, 2607, 2610, 2611. ^ There is a protocol to this treaty containing reservations of the United States Senate providing that "nothing in this treaty shall be construed as affecting, or changing., any existing territorial or riparian rights in the water, or rights of the owners of lands under water, on either side of the international boundary at the rapids of the St. Mary's river at Sault Ste» Marie, in. the use of the waters flawing over such lands, subject to the re- quirements of navigation in boundary waters and of navigation canals, and without prejudice to the existing right of the United States and Canada, each to the use of the waters of the St« Mary's river, within its own territory, and further, that nothing in this treaty shall be construed to interfere with the drainage of wet swamp, and overflowed lands into streams flowing into boundary waters*" The St.. Mary's River mentioned in the protocol is not to be confused with the St. Mary River that is tied in with the Milk River by Art* VI of the treaty above quoted in the main text* Some of the principles which found expression in the Roet-Bryce Treaty had been applied by American courts in suits between individuals: Anderson v. Bassman, li^O Fed. ll± (C«C. Cal * I9O5), applying equitable division to a dispute between citizens of Nevada and citizens of California over diversion of waters from an interstate stream for irrigation; Cline v. Stock, Jl Neb. JO, 98 N.W» I4.5I+, 102 N.W. 265 (I90I4.-I905), holding an owner of a mill in Kansas on an interstate stream coming from Nebraska into Kansas entitled to the sarie stand- ing in Nebraska courts as a citizen of Nebraska in a suit to enjoin alleged unlawful diversion; Pine v. New York City, 112 Fed. 98 (C.C*A* 2nd Cir. 1901), aff'g 103 Fed* 337 (C.C.N.Y. 1900), rev'd by I85 U.S. 93, 22 Sup.Ct. 592, l±6 L. Ed. 820 (1902), holding citizens of Connecticut entitled to sue in the Federal courts to prevent Few York City from diverting the flow of water fr om an interstate stream to the injury of private riparian owners in Connecticut For a supplemental treaty in 1925* covering' "Lake of the Woods Level," consult L|2+ Stat. at L. 2109. |
