The Coconino sun., 1924-07-11

real analogy to it. The servient
country may not obstruct the stream
so as to cause the water to back up
and overflow the territories of the
other. The dominant country may
not divert the course of the stream
SO as to throw it upon the territory
of the other to a different place.
(See authorities supra.) In either of
such cases there would be direct in
vasion and injury by one of the ma
tons of the territory of the other.
But when the use Of the water by
the inhabitants of the upper coun-
try results in reducing the volume
which enters the other, it is a din1i-
mutton of the servitude. The injury
now complained of is a remote and
indifferent consequence of acts which
operate as a deprivation by prior en-
joyment. So it is evident that what
is really contended for is servitude
which makes the lower country don1i-
nant and subjects the upper country
to the burden of arresting its devel-
opment and denying to its inhabit-
ants the use Of a provision which ma
ture has supplied entirely within its
own territory.
"Such consequence of the doc
trine of international servitude is
not within the language used by any
writer with whose works / am
familiar, and could not have been
within the range of his thought with
out finding expression.
"Both the common and civil law
undertake to regulate the use of the
water of navigable streams by the
different persons entitled to it.
Neither has fixed any absolute rule,
but both leave each case to be de-
cided upon it's own circumstances.
But / need not enter upon a discus
sion of the rules and principles of
either system in this regard, be-
cause both are municipal and, espec-
cially as they relate to real property,
can have no operation beyond nation
al boundaries. Greasy Int. Law p.
164.) So they can only settle rights
of citizens of the same country inter
see. The question must, therefore,
be determined by considerations diff
ferent from those which would apply
between individual citizens of either
country. Even if such question
could arise as private one between
citizens of one country and those of
another, it is not SO presented here.
The mere assestion of claim by Mex
leo would make it a national one even
if it were of private nature. (Gray
v. United States, 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 cannot
be traced to individual causes, and the
claim is by one nation against the
other in fact as well as in form.
'The fundamental principle of in
ternational law is to the absolute SOW
ereignity of every nation, as against
all others, within its own territory. |
Of the nature and scope of sover-
eighty with respect to judicial juris- |
Chief Justice Marshall said (Schooner
Exchange V. McF'adden, Z Cranch, p.
1867:
''The jurisdiction of the nation with
in it's own territory is necessarily ex-
elusive and absolute. 1t is susceptible
of no limitation not imposed by itself. |
Any restriction upon it, deriving va
lidity from an external source, would
imply diminutioTf of its sovereignty, /
to the extent of the restriction.
"sAll exceptions, therefore, to the
full and complete power of nation
within it own territories must be trac-
ed up to the consent of the nation it.
self. They can flow from no other
legitimate c011Y.cp
1T would be entirely useless to null
tiply authorities. So strongly is the
and absolute sovereignty
maintained that it has even been as
serted by high authority that admit
ted internal Servitudes cease when
they conflict with the necessities OF
the servient state. (Bluntschli, p. PIP.
See criticisms of Greasy, p. 258.)
Whether this be true or not, its as
sertion serves to emphasize the truth
that elf-preservation is one of the
first laws of nations. No believer in
the doctrine of natural servitudes has
ever suggested one which would inter-
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