El Paso herald. (El Paso, Tex.) 1901-1931, 1911-06-15

water. If the bank was very high 1t
took larger pieces, say two yards.
never more than three yards wide, and
where the banks were low. 1t took
smaller pieces.
Doctor Mariana Samaniego describes
the violence of the change as follows:
THE changes were to such degree
that at times during the night the
river would wear away from sc TO 100
yards. There were instances in which
people living in houses distant so yards
from the banks on one evening had
to fly in the morning from the place on
account of the encroachments of the
river, and on many occasions they had
no time to cut down their wheat or
other crops. It carried away forests
without giving time to the people to
cut the trees down.
@. OF the changes of the river that
you have mentioned. were they all per-
ceptible to the eye?
A. Yes: sir.
The presiding commissioner and the
Mexican commissioner consider that
the changes referred to in this testi-
mony cannot by any stretch of the i'm
agination, or elasticity OF language,
be characterized as slow and gradual
erosion.
Nebraska-Iowa Case.
The case Of Nebraska vs. Iowa GAS
U. S. $500, decided by the supreme
court of the United States in 1892. is
clearly disting uishable from the pres
ent case. In Nebraska VS.. Iowa the
court, applying the ordinary rules of
international law to fluvial boundary
between two states, held that while
there might be an instantaneous and
obvious dropping into the Missouri
river of quite a portion of its banks.
and while the disappearance by rea-
son Of this process, Of a mass of bank
might be sudden and obvious. the &C
erection to the other side was always
gradual and by the imperceptible de-
post of floating particles of earth. The
conclusion was, therefore, that notwtth-
standing the rapidity Of the changes
IN the course of the channel. and the
washing from the one side and on 20
the other. the law of accretion con-
troled on the Missouri river, as else
where.
In the present case, however, while
the accretion may have been slow and
gradual, the parties have express
ly contracted that not only the
accretion, but the erosion. must
be slow and gradual. The convention
of 1884 expressly adopts rule OF
construction which ds to be applied to
the fluviaI boundary created by the
treaties Of 1S4S and 1858, and this rule
is manifestIy different from that which
was applied in the case of Nebraska
vs. Iowa, in which the court was not
dealing with a speciaI contract. II 1t
had been called upon, in the case just
cited, to decide whether the degrade
ton of the bank OF the Missouri river
had occurred through a slow and
gradual process the answer would IN
doubtediy have been in the negative.
In the case Of ST Louis VS.. Ruiz
Obs U. S. 226) the supreme court OF
the United States, dealing with facts
very similar to those established by the
evidence in the present case. found
that the washing away of the bank OF
the Mississippi river did not take
place slowly and imperceptibiy, but on
the contrary, the cavng in and wash
ing away of the same was rapid and
perceptible in its progress; that such
washing away of said river bank oc-
CURED principally at the rises or floods
of high water in the Mississippi river,
which usually occurred in the spring
of the year; that such rises or floods
varied in their duration, lasting from
four 10 eight weeks before the waters
OF the river would subside to their
ordinary stage OF level; that during
each flood there was usually carried
away a strip Of Land from off said
river bank from ESQ to, 800 feet in
width, which loss of land could be
seen and perceived in its progress;
that as much as a city block would
be cut off and washes away in day
earth from 10 to Is feet in width fire.
quently caved in and were carried
away at one time.
If the degradation Of the bank OF the
Mississippi river, above described, was
found by the supreme court not to
be slow and 4fimperceptible pro-
cess, il Is difficult TO understand
how the destruction Of land, houses and
forests, described by the witnesses in
examples Of slow and gradual erosion.
Slow and Gradual.
Nor can the presiding commissioners
and the Mexican commissioner give ef-
feet to the contention that Mexico
must be held to have put a construction |
on the words "slow and gradual in the |
preamble of the Banco treaty of 1905, |
which adopted the report Of the COM |
stating that the changes |
and gradual erosion coupled with ayul |
sion, although it is alleged by the Unit |
ed States that the erosion in that case |
vas even more violent than that which !
occurred at the Chamizal. The report |
rendered by the commissioners to their /
governments in no way dis |
closes any facts tending to show the |
nature and extent Of the erosiye |
changes and properly so, because that |
was not material to the question to be /
decided. 1t is true that, by making a |
minute examination of the plans ac-
companying the report, the actual ex /
tent Of the erosive changes might have |
been ascertained, but there certainly |
was nothing in the question submitted |
to the governments for solution to nee
essitate, or even to suggest, such an |
enquiry.
1t has also been contended on behalf |
Of the United States that before the |
signing Of the treaty of 1905 the Next |
can government had received the opin- !
ion of the American commissioner IN /
the Chamizal case which asserted that /
f the erosion in Chamizal was not slow |
and gradual, then a fortirari. the |
erosion which had formed the /
oancos in the lower part of the river /
could not be slow and gradual. The |
effect of this assertion on the part OF |
the American commissioner, however, |
was counteracted by the reply Of the |