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narrower and narrower limits until finally reduced to their present territory. That they have long dwelt in their present habitat is evidenced by the numerous shell-heaps that have been accumulated about the more favorable camping places along the bays and inlets of this coast.
These shell-heaps or kitchen-middens have been observed attaining to a height of twelve or fifteen feet and to more than one hundred feet in length. The time consumed in the accumulation of such quantities of shells indicates for them a considerable antiquity.
LOCATION OF THE BOUNDARY BETWEEN
BY ARTHUR P. DAVIS, CHIEF HYDROGRAPHER, ISTHMIAN CANAL
HE promise which the construction of a water-way gives of increased development and commercial importance to the Central American republics, has been a source of considerable jealousy between Nicaragua and Costa Rica, and until recently there was continual dispute over the boundary line between these republics, each being anxious to preserve and increase its territorial interests in proximity to the proposed canal route. Both states had been wrought up by years of fruitless negotiations to a state of readiness for war in defence of what they considered their rights. In fact, war had actually been declared by Nicaragua on November 25, 1857, when, through the mediation of the Republic of Salvador, a final effort to avert it was made. Another convention was held and a definite treaty was concluded between the two republics in April, 1858, Article 2 of which runs as follows:
"The dividing line of the two republics, starting from the northern sea, shall commence from the extremity of Castilla Point, at the mouth of the Rio San Juan of Nicaragua, and shall continue its course along the right margin of said river to a point 3 English miles distant from the
Castillo Viejo, measured from the exterior fortifications of said castle to the point indicated. From there a curve will start, the centre of which shall be said works, and shall preserve a distance of 3 English miles from it throughout its development, terminating at a point which shall be 2 miles distant from the bank of the river, upstream from the castle. From there the line shall continue in the direction of the Sapoa River, which empties into Lake Nicaragua, following a course almost 2 miles distant from the right margin of the Rio San Juan, with its circumvolutions, to its origin at the lake, and of the right margin of the lake itself to the said Sapoa River, where this line, parallel to said margins, will terminate. From the point of intersection with the Sapoa River, which, from what has been said, should be 2 miles distant from the lake, a right astronomical line shall be drawn to the central point of Salinas Bay, in the southern sea, where the demarcation of the territory of the two republics shall terminate."
This boundary was for many years unsurveyed, and after the treaty of 1858 a change occurred in the regimen of the San Juan, by which the main portion of its waters, instead of flowing to the sea
at San Juan del Norte, as formerly, followed another course to the ocean, known as the Colorado River, while the lower San Juan, which was formerly the main stream, became a subordinate distributary. This led to a new dispute, Nicaragua claiming that the main stream, or Colorado River, was the true boundary, and calling in question in general the validity of the provisions of the treaty of 1858. This dispute was submitted to the arbitration of President Cleveland, who made an award on March 22, 1888, declaring the treaty to be valid, and the old or San Juan River to be the line. This decision was accepted by both republics, and at their request an umpire was appointed by President Cleveland to decide. doubtful points during the survey of the boundary line. General E. P. Alexander, of North Carolina, was appointed to fill this position, and the boundary line has recently been surveyed.
During the progress of this survey several interesting points of difference arose between the representatives of Nicaragua and Costa Rica, which were decided by the arbitrator to the satisfaction of both parties. The first point, and a very important one, related to the point of beginning, called in the treaty "Punta de Castilla." The lower San Juan, after separating from the Colorado, flows toward Greytown for a considerable distance and then sends a small distributary to the ocean called the Tauro. The main river reaches the Caribbean near Greytown, through two mouths with an insular delta between them.
Nicaragua claimed that the mouth of the Tauro should be considered as the mouth of the San Juan, and that the point of beginning was at the right bank of the mouth of this distributary, but there seems to have been little basis for this claim.
Costa Rica claimed as the starting point the western extremity of the deltaic island, the base of this claim being that this was the right bank of the mouth of the
main San Juan and that it had been called Punta de Castilla by three authorities cited, one of them being a prominent Nicaraguan politician, Mr. J. A. Gamez.
The arbitrator pointed out, however, that a large array of authority, including nearly all public maps, called this Punta Arenas, and that if such an important concession had been made by Nicaragua the representatives of Costa Rica would certainly have insisted upon mentioning the name "Punta Arenas" in the treaty, and similarly, if the Tauro had been intended, the representative of Nicaragua would certainly have insisted upon the insertion of that name; but neither of these names occur in the treaty. The point which was the extremity of the headland of Punta de Castilla in 1858 has now long been swept over by the Caribbean Sea, and so many changes have occurred in the shore outline that it is not now possible to locate the exact spot. The arbitrator there fore decided that "under these circumstances it best fulfils the demands of the treaty and of President Cleveland's award to adopt what is properly the Headland of to-day; or the northwestern extremity of what seems to be the solid land on the east side of Harbour Head Lagoon; and the initial line of the boundary to run as follows, to-wit:
"Its direction shall be due northeast and southwest, across the bank of sand, from the Caribbean Sea into the waters of Harbour Head Lagoon.
"It shall pass, at its nearest point, three hundred (300) feet on the northwest side. from the small hut now standing in that vicinity.
On reaching the waters of Harbour Head Lagoon the Boundary Line shall turn to the left, or south-eastward, and shall follow the water's edge around the Harbour, until it reaches the river proper by the first channel met.
"Up this channel, and up the river proper, the line shall continue to ascend as directed in the Treaty."
The next point of difference was that
with regard to the edge of the river, Nicaragua claiming that it should be the edge at high water and Costa Rica claiming the edge at low water. Both claims were overruled, that of Nicaragua including as a portion of the river large areas of land covered with vegetation submerged at extreme high water, and Costa Rica's including within her territory numerous islands which were connected to the land by sand-bars, exposed at extreme low water. As the river was referred to in the treaty always as a navigable stream, General Alexander decided the line to be that indicated by the surface of the water at the lowest navigable stage of the river, which is rather above the average height, the lower river being scarcely navigable at mean stages.
The survey followed this line on the right bank of the river to a point three English miles below the Castillo Viejo. Here the line left the river, the point being marked by a large concrete monument. From here, owing to the dense tropical jungle, the line was not actually run, but points upon the line were located on streams, and at other places which were accessible either by boat or by land, and every foot of the line from Castillo to the Pacific is located by a compromise of the engineers.
Another important point of difference was with regard to the definition of the expression the right margin of Lake Nicaragua." The argument and award of General Alexander are as follows:
"Under the influence of rainy seasons of about seven months, and dry seasons of about five, the level of Lake Nicaragua is in constant fluctuation. We shall have to discuss five different stages.
"Ist. Extreme high water; the level reached only in years of maximum rainfall, or some extraordinary conditions.
"2nd. Mean high water; the average high level of average years.
3rd. Mean low water;
low level of average years.
'4th. Extreme low water; the lowest
level reached in years of minimum rainfall, or other extraordinary conditions.
"5th. Mean water; the average between mean high water and mean low water.
"The argument presented to me in behalf of Nicaragua claims that the level to be adopted in this case should be the first level named, to-wit: extreme high water. It argues that this line and this line alone is the true limit of what the argument calls the bed of the lake.' Costa Rica claims the adoption of the third level, to-wit: mean low water. This is argued principally upon two grounds: First, it is shown by a great number of legal decisions that, in most states, all water boundaries are invariably held to run at either extreme or mean low water. Second, it is claimed that, in case of any doubt, Costa Rica is entitled to its benefits, as she is conceding territory geographically
"I will begin with Costa Rica's first argument. The equity of adopting a low water line in the case of all water boundaries is readily admitted, even though instances of contrary practice exist.
"Between all permanent lands and permanent waters usually runs a strip of land, sometimes dry and sometimes submerged. We may call it, for short, semisubmerged. Its value for ordinary purposes is much diminished by its liability to overflow, but, as an adjunct to the permanent land, it possesses, often, very great value. If the owner of the permanent land can fence across the semi-submerged he may save fencing his entire water front. He also can utilize whatever agricultural value may be in the semisubmerged land in dry seasons. Both of these values would be destroyed and wasted if the ownerships were conferred upon the owner of the water. Therefore equity always, and law generally, confers it upon the owner of the permanent land.
I recognized and followed this principle in my award, No. 3, where I held that the boundary line following the right.
bank of the San Juan River, below Castillo, follows the lowest water mark of a navigable stage of river. And, if now the lake shore were itself to be the boundary of Costa Rica, I would not hesitate to declare that the semi-submerged land went with the permanent land and carried her limits at least to the mean low-water line.
"But this case is not one of a water boundary; nor is it at all similar, or 'on all fours' with one, for none of the equities above set forth have any application. It is a case of rare and singular occurrence and without precedent, within my knowledge. A water line is in question, but not as a boundary. It is only to furnish starting points whence to measure off a certain strip of territory. Clearly the case stands alone, and must be governed strictly by the instrument under which it has arisen. That is the treaty of 1858; and its language is as follows:
"Thence the line shall continue towards the river Sapoa, which discharges. into the Lake of Nicaragua, following a course which is distant always two miles from the right bank of the river San Juan, with its sinuosities, up to its origin at the lake, and from the right bank of the lake itself, up to the said river Sapoa, where this line parallel to the said banks will terminate.'
"The principles upon which the language and intent of treaties are to be interpreted are well set forth in the Costa Rica argument by many quotations from eminent authors. All concur that words are to be taken as far as possible in their first and simplest meanings in their natural and obvious sense, according to the general use of the same words '-' in the natural and reasonable sense of the terms'' in the usual sense, and, not in any extraordinary or unused occupation.'
"We must suppose that the language of the treaty above quoted suggested to its framers some very definite picture of the lake with its banks, and of the twomile strip of territory. It, evidently, seemed to them all so simple and obvious