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<br />Q <br />CoA) <br />-.J <br />~ <br /> <br />. <br /> <br />. <br /> <br />! <br />I <br />I <br />I <br />I. <br />I <br />, <br />I <br />I <br />I <br />I <br />I <br />r <br /> <br />i <br />! <br />r:~---'---' <br />I <br />I <br />i <br /> <br />57 <br /> <br /> <br />We have found no decision from a United States court <br />which appears to provide a definite answer to whether the <br />1944 treaty could be said to confer rights which are en- <br />forceable by landowl1ers in the Mexicali Valley. As far <br />as we are aware, the furthest the courts of the United <br />States have gone in enforcing private rights conferred by <br />treaty occurred in Clark v. Pigeon River Improvement <br />Slide db Boom Co., 52 F. 2d 550 (8th Cir. 1931). In this <br />case a treaty between the United States and Great Britain <br />concerning the Canadian-American boundary provided in <br />part that "all water communications . . . along the <br />[boundary] line . . . shall be free and open to the use of <br />the citizens and subjects of both countries." Upon the <br />basis of this provision a citizen of Canada was held entitled <br />to drive his pulpwood down one of the boundary rivers <br />without interference and an injunction issued enjoining a <br />Minnesota corporation from obstructing the river and <br />collecting tolls. The provision on which the court based <br />the injunction was one providing that boundary rivers <br />"shall be free and open to the use of citizens and subjects <br />of both countries." <br /> <br />The 1944 treaty with which we are dealing in this opinion <br />was set np as the sole basis for plaintiffs' claim in Hidalgo <br />County Water Control db Imp. D'ist. v. Hedrick, 226 1~. 2d <br />1 (5th Cir. 1955), cert. denied, 350 U.S. 983 (1956). In this <br />case plaintiffs, political subdivisions of the State of Texas, <br />asserted that they had used waters of the Rio Grande <br />prior to the conclusion of the treaty in 1944 and that <br />defendants who were riparian proprietors should be pre- <br />vented from taking water in derogation of plaintiffs' <br />rights. Plaintiffs' claim of right was based upon article <br />9(b) of the treaty providing that "Either of the two <br />couutries may . . . divert and use the water belonging <br />to it. . . . However, no such diversion or use, not exist- <br />ing on the date this 'rreaty enters into force, shall be per- <br />mitted in either country. . . ." The court took the view <br />that the adoption of plaintiffs' interpretation of the treaty <br />