Interesting - another case of not wanting to create a precedent.
The General Counsel of the border commission sent me a citation of a
court case... I pulled it from Lexis and here it is. I spring for the
$9 for it, and it refers to two others relating to the same border
area - I'd appreciate it if two others of us would spring for the
costs of them and put them up here.530 F.2d 1330, *; 1976 U.S. App.
LEXIS 12941, **
VIRGIL LEROY AIKINS, Petitioner-Appellant, v. UNITED STATES OF
AMERICA, Respondent-Appellee
No. 74-2619
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
530 F.2d 1330; 1976 U.S. App. LEXIS 12941
February 9, 1976
PRIOR HISTORY: [**1]
Appeal from the United States District Court for the District of Arizona.
DISPOSITION: AFFIRMED.
CASE SUMMARY
PROCEDURAL POSTURE: Petitioner convict sought review of a decision of
the United States District Court for the District of Arizona, which
determined after an evidentiary hearing that the crime for which he
pleaded guilty was committed within the territorial jurisdiction of
the United States.
OVERVIEW: Petitioner convict was arrested at the Nogales, Arizona port
of entry and charged with importation of heroin, in violation of 21
U.S.C.S. § 174. After he pleaded guilty and was sentenced, petitioner
challenged the jurisdiction of the district court, which determined
that the crime was committed within the territorial jurisdiction of
the United States. Petitioner sought review of the district court's
determination of jurisdiction. It was undisputed that the offense
occurred at the United States primary inspection station located
approximately 35 feet north of the presently monumented international
boundary between the United States and Mexico. Difficulty arose
because there was a disparity of approximately two hundred feet
between the line as marked by monuments and the parallel of 31 degrees
20 minutes north designated by the Gadsden Treaty of 1853 as the
international boundary. The court affirmed the district court's
decision that the United States had jurisdiction over the crime,
holding that pursuant to the applicable treaty and the means for
resolving traditional boundary disputes, both countries intended to be
bound by the line marked out upon the land.
OUTCOME: The court affirmed the decision of the district court that
the crime for which petitioner convict pleaded guilty was committed
within the territorial jurisdiction of the United States. The court
held that pursuant to the applicable treaty and the means for
resolving traditional boundary disputes, both countries intended to be
bound by the line marked out upon the land.
CORE TERMS: treaty, marked, monuments, territorial jurisdiction,
evidentiary hearing, pleaded guilty, joint commission, integral part,
dividing line, designated, inspection, disparity, decisive, station,
minutes, feet
LexisNexis(TM) HEADNOTES - Core Concepts - Hide Concepts
International Law > Territorial Boundaries
HN1 The Gadsden Treaty between the United States and Mexico states
that each of the two governments shall nominate one commissioner by
common consent the two thus nominated may proceed to survey and mark
out upon the land the dividing line stipulated by this article. That
line shall be alone established upon which the commissioners may fix,
their consent in this particular being considered decisive and an
integral part of this treaty, without necessity of ulterior
ratification or approval, and without room for interpretation of any
kind by either of the parties contracting. The dividing line thus
established shall, in all time, be faithfully respected by the two
governments, without any variation therein, unless of the express and
free consent of the two. Gadsden Treaty of 1853, U.S.-Mexico, Article I.
Real & Personal Property Law > Estates, Rights & Titles > Adjoining
Landowners' Relations
HN2 In the context of a dispute between a private party and the United
States, the rule is that the wisdom of centuries of land law is to the
effect that lines marked on the ground by monuments stand highest in
the determination of the true boundaries of conveyed land, ranking
above statements of directions, distances, or area.
COUNSEL: Virgil L. Aikins, in pro per, Tacoma, Washington, for Appellant.
William C. Smitherman, U.S. Atty., Tucson, Arizona, for Appellee.
JUDGES: Wright and Choy, Circuit Judges, and East, * Senior District
Judge.
* Honorable William G. East, Senior United States District Judge,
District of Oregon, sitting by designation.
OPINIONBY: WRIGHT
OPINION: [*1331] WRIGHT, Circuit Judge:
Petitioner presents the novel question whether the offense to which he
pleaded guilty occurred within the territorial jurisdiction of the
United States. The district court, after conducting an evidentiary
hearing, determined that it had and denied petitioner's motion to
vacate sentence pursuant to 28 U.S.C. § 2255. We affirm.
Petitioner was arrested at the Nogales, Arizona port of entry and
charged with importation of heroin in violation of 21 U.S.C. § 174.
After he pleaded guilty and was sentenced, petitioner challenged the
jurisdiction of the court. In a previous appeal to this court, we
ordered that the case be remanded to the district court for an
evidentiary [**2] hearing to determine whether the offense was
committed within the territorial jurisdiction of the United States.
Aikins v. United States, 472 F.2d 1380 (9th Cir. 1973). Petitioner now
appeals the district court's determination against him.
It is undisputed that the offense occurred at the United States
primary inspection station located approximately thirty-five feet
north of the presently monumented international boundary at Nogales.
Difficulty arises because there is a disparity of approximately two
hundred feet between the line as marked by monuments and the parallel
of 31 degrees 20 minutes north designated by the Gadsden Treaty of
1853 as the international boundary. In essence, petitioner contends
that although the inspection station is located north of the line
marked by the monuments, it is south of the line designated by the
treaty and therefore outside the territorial jurisdiction of the
United States.
The government admits that the disparity between the two lines exists
but contends that the line marked by the monuments governs. A
determination whether petitioner's offense was committed within the
United States depends on which line represents the boundary [**3]
between the two countries.
A proper reading of the Gadsden Treaty of 1853 supports the
government's position. [*1332] After describing the parallel of 31
degrees 20 minutes north as the boundary in the area of what is now
Nogales, HN1the treaty states:
Each of the two governments shall nominate one commissioner . . .
by common consent the two thus nominated . . . may proceed to survey
and mark out upon the land the dividing line stipulated by this
article . . . . That line shall be alone established upon which the
commissioners may fix, their consent in this particular being
considered decisive and an integral part of this treaty, without
necessity of ulterior ratification or approval, and without room for
interpretation of any kind by either of the parties contracting.
The dividing line thus established shall, in all time, be
faithfully respected by the two governments, without any variation
therein, unless of the express and free consent of the two. . . .
Gadsden Treaty of 1853, Article I. [10 Stat. 1031; TS 208; 9 Bevans 812.]
The treaty's language clearly indicates that both countries intended
to be bound by the line "marked out upon the land. [**4] " Both
countries agreed that the line fixed by the commissioners would be
decisive and would become an integral part of the treaty. While the
commissioners were required to follow the parallel set forth in the
treaty as closely as possible, the parties apparently understood that
technological problems and difficulties in the terrain might make
exact measurement and demarcation impossible. The emphasis in the
language of the treaty on acceptance of the line as marked by the
commissioners indicates that this line, rather than the hypothetical
parallel, marks the international boundary. n1
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - -
- - - - -
n1 The boundary was resurveyed during the period 1891-96 by a joint
commission of American and Mexican surveyors because some of the
earlier monuments had either been destroyed or moved. During the
course of this survey it was recognized that there had been some
slight errors in the original survey. However, the joint commission
concluded that because of the terms of the Gadsden Treaty the boundary
as earlier established was final and could not be altered. Report of
the Boundary Commission, 1891 to 1896 at 17-18.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - -
- - - - - [**5]
This reading of the treaty also comports with means for resolving more
traditional boundary disputes. HN2In the context of a dispute between
a private party and the United States, we said:
The wisdom of centuries of land law [is] to the effect that lines
marked on the ground by monuments stand highest in the determination
of the true boundaries of conveyed land, ranking above statements of
directions, distances, or area . . . .
United States v. Weyerhaeuser Co., 392 F.2d 448, 451 (9th Cir. 1967).
To construe the treaty otherwise and accept petitioner's position
would result in disruption of the affairs of both countries and the
local inhabitants who have come to rely on the boundary as it was
fixed by agreement more than a hundred years ago. Both the United
States and Mexico agreed to the creation of the boundary as it now
exists, neither has objected to it, and this court will not alter it.
The denial of petitioner's motion is
AFFIRMED.
--- In
BoundaryPoint@yahoogroups.com, "Lowell G. McManus"
<mcmanus71496@m...> wrote:
> I witnessed the painting of the Mexican part of the bridge's steel
structure
> that is right up to the monument. It was done with brushes and
buckets by men
> that walked across the bridge from Mexico and worked without any safety
> harnesses or nets.
>
> Catching illegal immigrants is probably not an issue under the
bridge, as the
> area is within sight of the US Border Station at the end of one of
the two
> highway bridges in Eagle Pass/Piedras Negras.
>
> Attached is a September 2000 photo of the railway bridge (before the
painting)
> taken from Piedras Negras, Coahuila, México. The boundary monument
is not
> visible, but it is located on the left side of the stone pier
closest to the
> water on the USA bank of the river. Since this picture, a swath of
land under
> the bridge on the USA side is kept clear of vegetation all the way
to the river.
> This clearing is done by Union Pacific Railroad, the owner of the
American
> segment of the bridge.
>
> Lowell G. McManus
> Leesville, Louisiana, USA
>
>
> ----- Original Message -----
> From: "L. A. Nadybal" <lnadybal@c...>
> To: <BoundaryPoint@yahoogroups.com>
> Sent: Sunday, July 06, 2003 11:18 PM
> Subject: [BoundaryPoint] Re: MXUS Treaty 1970
>
>
> > I think I agree - for this case only.
> > I think however, the ambiguity in it all leaves the ground under the
> > bridge subject to US sovereignty for all purposes other than the
> > bridge... capturing wetbacks, for instance. When a purpose has
> > something to do with the bridge, then Mexicans have sovereign rights
> > to park their construction, inspection, repair or painting trucks
> > under it without deference to the US. Would that make a condominium?
> >
> > Assuming Mexican crews lowered themselves from their half of the
> > bridge to a spot on the ground under it, did they ever leave Mexico to
> > take advantage of their sovereign right? The border has got to be
> > somewhere, and I've yet to figure out where. Could it be in two
> > places at once?
> >
> > LN
> >
> >
> >
> > --- In BoundaryPoint@yahoogroups.com, "acroorca2002" <orc@o...> wrote:
> > > again
> > > in the absence of any wording that clearly establishes a
> > > nonstandard regime by explicitly delineating a vertical
> > > differentiation of some kind
> > > & in view of the reiteration of the defining & standard provision
> > > practically verbatim from 1884 to 1970
> > > namely that
> > > the monument shall denote the boundary or dividing line for all
> > > the purposes of the bridge
> > > it seems to me that nothing of any relevance to your question
> > > has changed at all
> > >
> > > moreover
> > > among the purposes of a bridge
> > > are
> > > to rise above the ground it rests on
> > > & to form a passageway across that ground
> > > & even to occupy the ground &or the space above it
> > > in order to maintain the special purposes & nature or treatment
> > > of that ground itself
> > >
> > > indeed to carry this line to its logical & necessary conclusion
> > > without the special ground & markers there can be no bridges
> > > & without the bridges & markers
> > > there cant even be any specially treated ground
> > >
> > > so it seems to me
> > > both from what is actually said & from what is not
> > > in every regard
> > > the bridge includes or subsumes the land underneath it
> > > &
> > > in relation to our starting proposition
> > > which is that boundaries are vertically continuous
> > > unless otherwise specified
> > > if indeed they are ever otherwise specified
> > > well once again
> > > as i see it
> > > no news is no news
> > >
> > > --- In BoundaryPoint@yahoogroups.com, "Lowell G. McManus"
> > > <mcmanus71496@m...> wrote:
> > > > I have abstracted the entire 1970 treaty, and it contains some
> > > fairly unorthodox
> > > > provisions! My abstraction is attached in Word format. Yes, I
> > > know, I went
> > > > overboard, but I wanted y'all to appreciate the full thrust of the
> > > treaty
> > > > without my having to transcribe it verbatim.
> > > >
> > > > For those who don't care to read the attached, here is the
> > > Article relative to
> > > > bridges:
> > > >
> > > > "The boundary on international bridges which cross the Rio
> > > Grande or the
> > > > Colorado River shall be shown by an appropriate monument
> > > exactly over the
> > > > international boundary determined by this Treaty at the time of
> > > demarcation.
> > > > When in the judgment of the Commission the variations of the
> > > international
> > > > boundary should warrant that the monument on any bridge
> > > should be relocated, it
> > > > shall so recommend to the two Governments and with their
> > > approval may proceed to
> > > > the reinstallation. This monument shall denote the boundary
> > > for all the
> > > > purposes of such bridge. Any rights other than those relating
> > > to the bridge
> > > > itself shall be determined, in case later changes occur, in
> > > accordance with the
> > > > provisions of this Treaty."
> > > >
> > > > Compare that with the respective language from the
> > > Convention of 1884 [as quoted
> > > > by L.N.], which document is expressly terminated by the 1970
> > > Treaty:
> > > >
> > > > "If any international bridge have been or shall be built across
> > > either rivers
> > > > named, the point on such bridge exactly over the middle of the
> > > main channel as
> > > > herein determined shall be marked by a suitable monument,
> > > which shall denote the
> > > > dividing line of all purposes of such bridge, notwithstanding
> > > any change in the
> > > > channel which may thereafter supervene. Because of the
> > > frequent changes in the
> > > > course of the rivers, any right other than in the bridge
itself and
> > > in the
> > > > ground on which it shall be built shall in the event of any
> > > subsequent change be
> > > > determined in accordance with the general provisions of this
> > > convention."
> > > >
> > > > Note that the 1970 Treaty drops all reference to the ground on
> > > which bridges are
> > > > built.
> > > >
> > > > I think that we sorted out all relevant questions a few days ago
> > > as they would
> > > > have been under the 1884 Convention, but this 1970 Treaty
> > > sends us back to the
> > > > drawing board. I throw it out there you, and I await your
> > > comments.
> > > >
> > > > Lowell G. McManus
> > > > Leesville, Louisiana, USA
> >
> >
> >
> >
> >
> > Your use of Yahoo! Groups is subject to
http://docs.yahoo.com/info/terms/
> >
> >
> >