El Paso Daily Herald. (El Paso, Tex.), Vol. 17, No. 264, Ed. 1 Friday, November 5, 1897 Page: 3 of 6
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KCET-3L.ID SUPPLEMENT-
FACTS SUBMITTED.
During: the past few months so many
intentionally misleading statements
have been circulated regarding the ob-
jects of the Rio Grande Dam & Irriga
tion Co. and the Rio Grande Irrigation
& Land Co. Limited statements
prophesying that the building of tha
Elephant Butte dam will ruin 1 Paso
that at the request of a number of our
subscribers we are publishing with
today's issue for the information of
the public a special supplement giving
in full a reprint of Mr. W. A. Haw-
kins' late open letter to the press Dr.
Nathan E. Boyd's letter the summing
up and decision of Judge Bantz in the
action against the Rio Grande Dim &
Irrigation Co.; also excerpts from the
articles of incorporation of the much
libelled English company formed in
England to finance the Rio Grande
Dam &IrrIgation Co.
As our readers are aware we have
all along considered it our duty to
treat fairly the Elephant Butte enter-
prise believing that in so doing it
would best serve the true interest of
the valley in general and El Paso in
particular.
El Paso is and must remain the me
tropolis of southern New Mexico and
western Texas and as the Rio Grande
Dam & Irrigation Co. will be able to
supply water for the irrigation of the
valley above as well as below El
Paso thereby bringing a much larger
area under irrigation and cultivation
than could be supplied by a single dam
at El Paso. Hence we lay the subject
' before our readers relative to the Ele-
' phant Butte enterprise together with
their claim of offering the greatest
good to the community at large and
thus promote the welfare of El Paso.
Mr. Hawkins' and Dr. Boyd's letters
and the summing up and decision of
Judge Bantz reprinted in this supple-
ment will afford readers a full and
complete eource of information relative
to this important subject and should
satisfy one and all that the recent at-
tempt to interfere with the successful
carrying out of the objects of the Ele
phant Butt enterprise was most ill
advised.
Dr. Boyd's plans for the irrigation
colonization and development of the
valley and mesa deserve the good
will of the whole community. Bj
permittingDr. Boyd and his associates to
carry out the objects of the companies
he has been the mean9 of forming fcr
the development ol Rio Grande irriga-
tion and fcubs'.diary industries this will
guarantee to El Paso a source of sound
and permanent progress.
A large influx of capital bringing
with it an intelligent superior well-to-do
class of citizens will soon fore 3 our
splendid local agricultural miner 1
and pastoral resources into wide spread
notoriety; and once the tide of invest-
ment and colonization has been direct-
ed our way our "wine will need no
bush" and our future prosperity wili
be secured. All this and more the Ele-
. phant Butte dam assures.
TELLS INSIDE FACTS.
Attorney V. A. Hawkins Sends an Op-
en Letter to the Press of Colorado
and New .Mexico Concerning: the
Eelepnant Butte lieoer voir.
FULL HISTORY OF THIS LNTERPUM
Th Light of Investigation Thrown L'pon a
Subject of International Import iu
W bach tha United states Mex-
ico and England are
Interested.
To the Press rf New Mexico and Colorado:
Silver City N. M. May 19 1897
. I have concluued to ask you to lay be'
lore the people oi JNew Mexico ana
Colorado a statement of the facts col
nected with aud the objects of tue re
cent reported decision ot Attorney-
General McKenna adverse to tue
construction or the aam and irrigation
system now being eroded in the Mi-
eilla valley N. M. by the Rio Grande
Dam & Irrigation company a corpora-
tion organized under tue laws of JS'ew
Mexico by citizens of New Mexico aud
Texas aud not at all the raw-neadand
bloody bones British corporation
which has come among us to aesist by
its capital in the development of the
resources of our country as the depart-
mental reports and Associated Press
telegrams inspired thereoy announce
with such apparent horror. Such a re-
. port is entirely untrue its untruth is
Known to its propagators is built upou
a very slight foundation (that of there
being English stockholders in this
- company) aud with a malicious purpose
presently explained.
All this "fuss and feathers" about
this enterprise which has been agitat-
ing the press for some time has us oi-
igin with a small coterie of
interested persons residing in Ei
Paso and of Mexican citizens
residing in Juarez Mexico.
These gentlemen are trying to induce
the United States to coustructau inter-
national dam at Et Paso for the benefit
of El Paso and Juarez Mexico and
have conceived the opinion that tue
dam being coastructed by the New
Mexico company is a threat to the r
enterprise coutending that the im-
mense Hood waters ol the K.o Grande
will not afford sufficient water for two
reservoirs. Some of these gentlemen
are inspired by a patriotic desire to as-
sist the development of Et Paso aud
immediate vicinity while others of
them have their inspiration in the hope
of prospect. ve benefits to accrue to
them individually by virtue of their
having acquired at bankrupt prices
real estate which they hope will be
benefitted by their scheme.
The. agi tat on for the construction of '
tue international uwu comuiouocu ut
ElPasoVnaT-Aiuarez many years ago !
.
and has been kept up very per.-ist.ntiy. !
The old scheme Was to induce congress
h it nn tfmR im-auKdfld tn nndriir
f t0ne trme pereuaaea to and did
"T K r71 T" :"Jri -.T.7."r
recommend to congress in one of his
messages that the necessary authority
bo given and appropriation ba made.
At that tini it was mod -stiy est'mated
by its projectors that it would only cost
a million ollars or so and it was argu
ed by i s prcjectors ani adopted by
the pre.d--nt that ltoiifht ?o us built
in order to compensate O d Mexico and
her citiz sqs f-r wat -r wr ie'o hai b-'en
diverted from the 11 o Grande in
Colorado and New Mexico bv which
diversions such Mexicans in Mexico
have b"tn deprived of water foriner'y
enjoyed by them. Corgress decided
against tha scheme. The projectors
then devised the pesent- pian which
though i.ot kuown iu all its details em-
braces the pressing of large claims for
damages agaiLstlhe United States for
this deprivation of water for purposes
of irrigation- The exact amount of
these claims is not knoarn. It is cur-
rently reported in El Paso thaf. they
run up into the millions ten millions
being frequently named as the amount
although this sam is also reported to
embra.e other damages claims for
which have long been psniing. A
part of the scheme was that after
making a strong demand for th-3 pay-
ment or these claims the Mexican gov-
ernment was to otter to compromise
provided the United States oulda.ree
to buld the dam at El Paso and give
one-i hird of the water to c'.tizjus of
Mexico f r use upon the land formerly
cultivated by th m and one-third for
use on tho American side and that
this should be accomplished by m a s
of a treaty and that after this treaty
had betn ao:oinplished and the liabili-
ty lud been fixed upou tho Uu ted
States is would bo safe to fo lo con
gress lor an appropriation aua not
until then. The scheme took with ou
r
secretary of state Mr. Oiney and upon
a hint t melv g van ail of the Mex;
cans who claimed tbey had suffere
i mm the 1 s of water fo- irrigation
purpose went bjfore the authoritie
of the city of Juarez and ma:ie proofs
of thoir loss which were duly iiu d a
el iims against the United StAt -s. Th
s-.-eretary of state then called upon th
secretary of war to ascertain the
amount which the dtm would cost and
tbe latter designated Colonel Anson
Mills a retired army officer who baa
for many years bad a soft job as th
head of the boundary survey commis
sion of tho United States for delim na
icg the boundary between the United
States and Mexico. Colonel Mills i
given tie credit for beinsr tha had
promoter of the scheme au l of bein
heavily intere-ted as an owner of real
estate in El Paso aad vic'n'tr. So far
the scheme was vgorkiug smooth
anoufih. The Mexican governmen
il-ro detailed engineers to assist Colo-
iel Mills in Gathering this data and
many thousands of doll rs were sp?nt
in experiments whiea liaally resulted
in a joint report to the.r re-peetive
troveroments on the i;ai t of these gen
wem -n that the schem a was foas.bl
aad could be completed for something
ike tho modest sum of s.;-OU0.OUO. C;
onel Mills thereupon weat to Washin
'.on as the hvai of the promoting fore-.:
of the schemer.- and has remained
here uutii very recently urging upon
the various departments the auvisabil-
tiy of the measure; in t'ne meaiiime
it
is an open secret in El Paso that the
real estate vhichis to b3 beuelitted on
uhe Mex-.can side of the river has be
largely o'obled up by the Mexi
an contingent of the protnr t
ers. while various citizens of El
t3aso interested in the promotion
-.ave quietly gathered in the verv
ground upon whic i the immense reser
voir is to be built preparatory to col
eeting large claims from the govern
Bent when the laLd is taken.
In thei meantime and about in 1889.
ome citizens cf New Mexico and Texas
organized the Kio Grarde Dam & Irri
'ation company for -tha purpose of
building a large reservoir the largest
in the world at Elephant Butte in the
bed of the Kit) Giande just west of El
ile intending to store water therein
luring the Hood and non-irrigali.'g
season and let the same down th
stream to the company's canals and the
private ditches of o hers during tue
time the river is dry generally irom
June until September. For several
years this company could only secure
sufficient funds to prosecute the sur-
veys necessary to detsrmiue the prin-
cipal features of the plan and the prob
abie cost of carrying the same out. Ic
toe early spring of lfi'JO this company
applied to tne secretary of the interior
for an arproval of its selected ris.r-
voir site at Elephant Butte til.ng in
his office the proofs and mar.8 required
bv law. Under the aet of congrtss of
li91 section 18 chapter 001 this corn-
piny by filing maps desigoating the
location of this reservoir and proofs of
its corporate character with an appli-
cation that the same beset aside to it
for such purto e had a right to have
the secretary app ove these maps in
so far as the public domain covered
thereby was concerned and his approv
al carries with it the right to construct
the reservoir within five years thereof
ter. Secretary Smith approved these
maps jist us he has approved maps for
dozens of other reservoirs in tho Kio
Grande. Tae following is the law un
der which this right was acquired.
Section 18 chapter 501 acts of 1891
"lhat the right of-way through the
public lands aud reservations of the
United States is hereby granted to any
caoal or ditch company ior:ned for the
purpose of irrigation and duly organiz
ed under the laws ut any state or terri
tory which shill hive tiled or may
heieafter lile with the secretary of tha
luterior a copy of its articles of incor-
poration ana due proofs of its organi
zation under the same to the extent of
tne ground occupied by the water of
the reservoir and of the cintlandits
Interals and 00 feet oa each side of the
marginal limits thereof.
Section 11) ''That any canal or ditch
company desiring to secure the benefits
of this act shall with. n 12 months after
tne location of ten miles of its canal if
the saae be upon surveyed lands and
if upon unsurveyed lands within 12
mouths af'er tbe survey thereof by the
Lnittd States hie with the register of
the land office for the district where
such land is .oaated a map of its canal
and ditch acd reset voir; and upon the
approval thereof by the secretary of
tbe interior the same shall ba noted
upon the plats in s-iid effied aod there-
after all such lands over which such
rights-of-way . shall pass shall
be disposed of .subject to such right-of-way."
Shortly after this sppro'val the moh-
eyfor the ctrnstruct'on of pirt of these
wprts was -pb'.aijLei purtjy. at bqtne
and partly abroad aad la-t J nua-y
the contractor communed the 'con-
struction of' part of the "-tystt rn ' : which
included a diverting d'xra and a smaLl
canal leading therefrom .ip being eon-
texpia'.ed by the company to co.n-
mence tae construction cf the Elephan t
Uutte reservoir ulou the co.ijoleton iif
i this divert ng dam the latter.. being
used to
divert the water whi
the water which the
fNimii 4.11 v i. pn.i.i T.r am ..out I. nh..n'.r
?hm f hX w hT ? "TVt ' "
p. As 8ou asThis constructTon
commence d the promoters of the in- j.wl
dV d. ' Pf
T.iiiC 7 ?Z VJ j ""n-
then lobbying with the. departments at
toogiLato toionei .uuis ai
Washington with telegrams and let-
ters advising that something must be
done io stop the coastructioa going on
above or the in 'crests of their scheme
would sutler and this gentleman hav-
ing tie entree of the st-ite department
secu- d fro a the then secretary of s'a'e
an oilic.al oommunic ttion to the secre-
tary of the inre-ior D. K Francis pre-
ferring and indorsing a request from
Colonel Mills that the scretary of tbe
interior suspend an applications for
reservoir sites on the Ii-o Grande and
any of its tributaries in New Mexico
and Colorado uotil tho f.ta of the inter-
national dim could be determined. The
secretary of the interior complied with
this order and the same is still in
force ac-d I am told irrigation placar
and other reservoir enterprises io Col-
orado and New Mexico are b iing held
up greatly to tho detriment of public
enterprise by virtue of the kindly in-
terest thus displayed by Colonel Mills.
However th-3 company constructing
th s particular d im proceeded with its
work on the grouad tha this order in
no way affected tbem aDd then came
the complaint tht under the treaty of
Gundalupj ITdalgo the Kio Grande
was navu-able although not 60 in fact
and. by the requast of the s"ate depart-
ment aga'n the secretary of the inte-
rior referred to tue attorney-general
the two questions whether under the
treaty of Guadalupe Hidalgo the K.o
Grande could be considered navigable
and w net her tho erection of this dam
could b j considered a violation of such
treaty; also whether the secretary had
the po"er to revoke his approval previ
ously given such compicy acd thus
prevent further construction. A for
mal heiring was given the company
attorneys with the result that the at-
t rney-generat gave it as his opinion
that the secretary could not revoke the
former action of his predeeassor and
also that the construction of such dam
did not constitute a vioiation of the
t-caty of Guidalupa Hidalgo. The
promoters of the inteTaational dam
wre in despair. Thy pressed their
scheme hard before a retiring adminis-
tration for a treaty aod assert in Ei
Paso that it was only" the struggle the
administration was making b fore
the senate to gt the Eaglish arbitra-
tion treaty ratifi-d tht prevented Ol-
cey from sending in a treaty with Mex-
ico to the senita ag.-eeirg to build the
in'.erna'ional dam and ni -iking it un-
lawful t divert water in New Mexico
or Col ratio from tbe Kio urande or
any of its tributaries and compelling
us to allow the same to flow down to be
used from thisd iu at El Paso.
The ndw admiuistratioc it seems
cow has hit upon a new theory. That
is that whiie the Kio Grande is not de-
clared navigable in New Mex co by the
treaty of Guadalupe Hidilgo yet that
it is so navigable in fict and in a copy
of a letter written by the s;cretary of
state to the secretary of the interior is
the folio .ving informatioj which must
be startlin ? to New Mexicans aad citi-
zens of "oloratio. A part of this letter
is as follows:
In your letter of December li) 189(5
you informed mo yoj had in
compliance with my suggestion of No-
vember 30 18!)ti direcied the comrti.s-
sioner of the gv neral laud office to sus-
pend a; Lion ou aciy and all applications
for right-f-way through public lands
for the purpose of irrigation by usint
the waters of the Kio Grande river or
ar.y of its tributaries io the stati of
Colorado or in the territory of New
Mexico until further instructions from
you. The request of this djpartment
upon which yo.ir order was based was
made at the suggestion of Colonel An-
son Mills by letter dated October 21)
IS'.tti. I have information
wi ich indicates that the Kio Gritnde
river in s-oine parts above the lnterna-
ional boundary line is and has been
used as a waterway for navigation be-
tween the United" States and Mexico
and possibly between the state of Col
orado and the territory of New Mexico.
The at'ornev-general in his decisioa of
December 12 18U.J (210 p. 274) held
that the river was cot navigable above
the boundary in the sense cf the treaty
l. . T i . j t .
ueunecu tue o uiicu otaies anu AiexlCO
but the quest. oa h-re is whether it is
navigable within the meinios of the
laws of ihe United Slates. It
must be observed that the obstruction
to navigation may result not from the
ntervention of the dam across the riv
er but also from the diversion of the
waters leaving an insufficient quantity
oeiow tne aam ior the purpose of nav
gation."
After this letter was written the de
partments were seak-d to the corpoia
tion's attorneys at Washington on mis
question and they couid cot ascertai
what was being done. JNow the que
tion emerges from this secrecy with
the decision of the new attornev-t?ener-
ai accoruiug to tae Associateu .fress
of a day or two since that the 11;
Grande is a' navigable stream in New
Mexico and those who construct or
maintain dams therein for purposes of
irrigation are naoie to cave their dams
destroyed and te criminally prosecuted
acct ordering procedure to that effec
against tue ivio orauue Manx i3o irriga
t.on company. TEe dteis.on is an ab
ui d one if made as reported and
impossible to enforce as the
court must ba resorted to in the en
forcement thereof aud the governmen
compelled to produce in broad dayligh
its eviuence mat tne river is a naviira-
oie one; out wuetner eniorceabie or
I . I.. . . t 1 t . . .
tot the mere aosurd contention of the
government to that effect wi.l bo suMi
cient doubtless to scare off all the cap
itai which has been so plaon'ng for
iNew Mexico 8 development. The?rav
lty oi tnis contention canuot be too
great'y magnihed. The danger of this
claim is not iLtnitoa if granted to the
uisoruui.ua vi an tne irrigation bvs-
tems iociieu on tne lilo Gi ande n
JNew Mexico and Colorado buttoeverv
such located on any of its tributaries as
wen under the contention of the sec
retary's letter as quoted ahove that "it
must be observed that the obstruction
to navigation may result not only from
the interveut:oa of the dam across the
ver but also from the diversion of its
waters leaving an insufficient auantitv
below the dam for the purpose of navi
gation."
applicati on ior uam ana reservo r
ites on ail tributaries of the Kio
Grande are now suspended and. if the
piTit of this deci-ion maintains will
e shortly rejected and such prohibit
ed. It will be within the right of the
war depart ni;- ni to destroy all such and
an now existing in the mam channel.
no matter how far above tho pjint of
navigation. We need no5 expect the
devastating result of this doctrine if the
government should be able to ma-n'ain
it to fail upon Colorado aad New Mex
ico a o-ie but its principles can be iitr
t.'d to near'ly 'every stream in the west.
Certainlythe Gila Pecos "Animas aud
all others running. i-nto ttreama of any
js ze ana .finally emotvinp- into t.ha
Colorado dr Kio G; aude can be in-
cluded. ;.- :.
I.tiny strike-the observant - a peoUv
liir tb-it this dojtrine of the iliegalitv
". eX:?'cause dr
. - .: i -
r She gonmneX
h-a plan to build-a dam in the state
TeaPs across tne samtrivlVSl
yrw oUlJtto iuo vupeiver as pecui ar
that' the Mexlcan government objects
- o strine the observer as oeculiar
to dams being bu'lt wholly within the
United States because it interferes
with navigation when the City of Juar
ez maintains a dam across the sitne riv-
er at that point. The fact is the whole
contention is a miserable and thinly
veiled subterfuge on the part f'f our
government to intimidate a privsio en
terprise wti;c: acc ding to tot- con-
tention of thosj having the ear of the
departments a" El Paso is inimi al to
their interest and as such it disgusts
one interested ia the welfare cf his
country. Under tha decision of the attorney-general
in this ca-e the state of
Colorado and the territory of New
Mexico become a conduit th-ough
whieh the waters gathered on our
mountains and plains may run to
aliens but which our own citizens dare
not use As stated above the decision
cannot be enforced because it is not in
accordance with the law but it serves
to warn us of a danger that is hovering
over the prosperity of this territory
and of Colorado to those enterprises
now resting upon the basis of irriga-
tion from tha water of this river and
its tributaries which is all the more
real because its chief feature would be
the subjectof laws made especially to
tit the case. That danger is this:
There is resting in the state depart-
ment at Washington the draft of a pro-
posed treaty between the United Spates
and Mexico which is now being con
sidered bv the two governments in
which it is proposed to insert a clause
forbidding ny diversion cf the waters
of the Kio GranJe or any of its tribu
taries in the United States. If this
treaty is sub nitted and ratified it will
become a law that no sucn diversion
can be made. Aaaicst the ratification
of a treaty emb-acing such a proposi
tion Colorado and New Mexico mus
stand as a unit and defeat it if possible
Our representative in Wasbintrton
Hon. H. B. Ferguson is bonding every
energv in its opposition. He has at
last secured a promise of a heariog bi
fore the treaty shall be submitted to
the senate but we must orga-iize and
go to his aid if not now a '.least before
the senate .considers the measure or
leave to him alone certainly the fate of
New Mexico because in my opinion
her doom is sealed when such a treaty
is ratified and largely the interests o
Co'orado. Will the powerful senator-
ial influence of our northern neighbor
come to our assistance in this a time of
danger to the prosperity of both com
mon wealths? The Mexican govern
ment is pushing hard and a state de
partment none to closely allied to our
interests is yielding to its claims
There is none too much time in which
to act W. A . Hawkins
From the Santa Fe New Mexican
Santa Fe N. M. May 21 1897.
XO REAL CAUSE FOR COMPLAINT.
Irrigation Tenda to lucre use the Kio
Grande Water Flow. Mexico
Should ba Grateful Iustead of Try
i iiar to Kick Up a B'w Over It
Kesult of the Expert Personal Ex
amination of Professor - Carpenter
L. G. Carpent:r meteorologist and
irrigation engineer of the Agricultural
College at Fort Collins was in the city
yesterday. Prof. Carpenter has been
fjr some time engaged in measuric
the waters of the streams of Colorado
from wbioo water is taaen for irriga
tion purposes acd last earmtidaa
careful examination of the Kio Grande
river iu the San Luis park a matter of
considerable importance at this time
in view oi the position taken by the
Mexican government to the effect that
the use of the waters of that river for
irrigation in Colorado and elsewhere
has caused the lowering of the water
in the navigaoie portion ul the river
in which Mexico has aa equal interest
with the Unittd States aud that ia so
doing the United States has violated
the treaty under the terms of which
the United States is pledged to do
Qothing that will interfere with the
navigation of the river
"I don't know that I am prepared to
make ary definite statement on this
question." eaid he "as we have not yet
completed our investigations. We look
tne measurements of the water flow of
the K.o Grande lat year but we are
only just about to commence this sea
son aud therefore can hardly say deti-
initely to what extent the use of the
water in the Kio Grande for irrigating
purposes aueets that portion of tne riv-
er that can ba nav. gated.
FKOII GENEKALIT1KS TO PAKTICUL.AKS.
''Applying the infurmation obtained
from experiments in other places how-
ever lam inclined to thinic that the
claims of the Mexican government are
uo't based on very substaaual founda
tions. CI course Mexico has certain
vested rights in the waters of the Kio
Grande and our government is under
treaty obligations to protect those
rights but 1 do not think that there is
enough water taken out for irrigation
to seriously affect the navigation of the
river.
"The records show that when the
Kio Grande is low the other waters of
the United Statts are low. Taere uas
been no high water in Colorado since
JS84 ween the water in the lower K;o
Grande was very high. Siuce that
time the waters of all western rivers
have been low until this year and the
Kio Grande river was higher this year
than it has been for niaGy years. The
claim of the Mexican government is.
that the lo water s.nce 1884 is due to
irrigation because irrigation hrst bt-
came general in that year in the upper
valley of tie river; but it is by no
means clear to me that this uosiiion
can be sustained as similar conditions
existed in other streams not seriousiv
affected by irrigation.
It has bieu dehnitely determined
that the return to the river bed bv
seepage is about 30 per cent of the
water taken out the rest being lost by
evaporation oy aosorption oi tue grow
ing crops and by the formation of un
derground reservoirs. Tae latter cause
of loss is but temporary however for
when the undei ground basins are once
uneu up tne water naturally once
more seeks its ordinary chaunel.
think that to far from irrigation bein
detrimental to tue supply of water iu
the lo .ver portion of streams it is likely
to prove ueueuciaiiu mis way: it ab-
so. bs a large portion of water from
floods- and when the basins J have re
feriedioare tilled up tha flow of the
stream becomes steadier.
U.NOEKGKOUND liASINS.
'The extent and depth of these hi.
sins ior the reception oi water b.-neath
'.e surface are somewhat surprising
For instance in the San Ems para
there is .a large area thi full extent of
which has not yet been de ermioed
"that is gradually hlling up with water
which rises to a point so near tbe sur-
ce that eveutoally the entire area
over this basin witl he cultivated with-
ut surface irrigation. At some points
n this tract wnere water was not
eached formerly at a depth of 1000
ftjef it-is uow;found at a eomparativelv
hallow depth. Thesurfaceof th hod
rock generally slopes awiij.- from thL
piveV and it naturally 'follows t-hat
when the basin is h. led with water tn
the rim of bed rock it will overflow
into the river The same phenomenon
into the river j. ne same phenomenon
is observed in the valley of the Cache
La Poudre where wells which when
dug found water at a depth of forty and
fifty feet now have water within from
live to ten feet of the surface. Of
course in tbe case of the Kio Grande
when this basin is filled to within a
short distance of tha surface irriga-
tion will practically cease and the vol-
ume of water which passes down the
river will be proportionately increased.
"Observations in other parts of the
world are to the same purpose. When
the Ganges canal was constructed H.
(J. McKinney says the whole available
cold season supply was taken from the
river; yet at a distance of only a few
miles the discharge in the river was
found to be very considerable and
further on it increased to such an ex-
tent that the supply taken by the canal
was very little missed. In the canals
taken from the T.cino river in Italy
for irrigation the volume of water is
very great and yet the return water to
the river is to extensive that the loss is
not large enough to be perceptible
though the soil is very light and
porous.
BENEFICIAL. RESULTS.
. "The results of careful investigations
on this question of seepage show that
there is a real increase in the volume
of the streams as they pas3 through
the irrigated sections; that the'-e Is co
such increase as they pass through tbe
unirrigated se.tions on the contrary
there is an actual loss even when the
drainage of a large area enters and
that tbe increase is more as the irri-
gated area is greater. Only where the
lands are already saturated is the rain-
fall sufficient to cause seepage from the
outlying lands to reach the river. This
fact has aa important bearing upon
the question involved in the irrigation
of the RioGraude valley as it will be
necessary for it td completely fill the
great basin mentioned before it will
perceptibly increase the water in the
river flowing through the irrigated
section. Ultimately the returns from
seepage will make tha lower portions
of river valleys more certain of water
and cause a greater regularity of flow.
If the results of this investigation ap-
p'y to the Kio Grande then any injury
must be largely compensated by the re
turn and the greater regularity of flow
produced in the river
''In the absence of any determination
of the nehnae now and of the seepage
of the Rio Grande I can of course give
no absolute opinion on the Bubject of
the injury to Mexico. The conclusions
given on the question of seepage have
b:en reached by experiments in other
localities. I can see no reason why the
same results should not follow the in
vestigations of the condition of the
Rio Grande valley; and if they do I
think the opinion will be justified that
Mexico has no serious cause of com
plaint.' From the Denver Republi
can Denver Colorado July 4 JSiJi.
AtELKIlKiTHUCiSE.
The Injunction iu tbe Elephant Butte Dam
Case Dissolved by Judge Bantz.
The importance of this case will be
come apparent when we understand
that tne contention oi tne government
was that not only is it illegal to divert
water for irrigation from navigable
rivers but that it was also illegal to
divert water from any tributary of a
navigable river n thereby the naviga
ble capacity of the river should bd im
paired. It was upon this. latter ground
lhat all reservoir sites upon all tribu
taries of the Rio Grande throughout
iew Mexico ana Colorado were sus-
pended by the interior department.
Moreover the region Known as "arid
covers four-tenths of the United States
and as the rainfall is very small the
cultivation of lands depends through
out that section almost wholly upon the
use oi tne water or rivers and their
tributaries. 1 he great and extensive
interests involved in this cause will
justify we thick the publication in
mil as tbe questions are comparatively
r.ew.
United States op
AMERICA. I No. 140.
VS.
The Rio Grande
Dam & Irrigation I Injunction.
CO. et al
. . . -
OPINION of the court.
- The issues briefly stated are these
1 he amended bul charges that the
defendant is (1) about to obstruct the
Kio Grande a navigable river and (2)
obstruct the lio ol waters and inter
fere with the navigable capacity of a
river. That such obstructions would
bo in violation of the acts of congress
oi louo ana i&! acd. contrary to the
treaty witn Aiexico.
A preliminary injunction was grant
ed and the defendant ordered to show
cause why it should nor. be coutinued.
Ihe defendant tiled its answer denvinc
that the Rio Grande is a navigable
river; and also filed special pleas justi-
lying under rignt-oi-way lor reseivoir
and canals secured under the acts of
1891 and certain territorial laws.
The issues arise on the motion to dis
solve the injunction and upoa the suffi
ciency oi the special pleas.
it may be stated at the outset that
this is not a contest between private
persons as to superior right by prior
appropriation. When that question
arises the courts will doubtless be en
tirely competent to deal with it.
The iiio Grande from LI Paso to the
Gulf of Mexico is the boundary line be
iween Mexico ana tbe United States
and under treaty between those repub
lics tne mo Grande along sucn bound
ary is made free and common to the
vessels and citizens of both countries
I here is no guaranty by either repub
lic that tbe Rio Grande is or will con
tinue to be navigable but each nartv
stipulated tnat it would not construct
any work "below the intersection of
the ol degree 4 min. 30 sec. parallel
oi latii.ude with the bojndarv line
w men may impede or interrupt in
whole or in part the exercise of the free
; and common use of the river. Neither
Mexico nor the United States surren
dered any proprietary right to the ad
jacect son or to aoy iocident thereof.
indeed it is expressly stipulated that
tbe treaty shull not "impair the terri
torial rights of either republic within
its established 1 mits "
The legal effect would have been the
same had the reserving clause been
uu:utBu as uuuer tue proper rule ol
construction the free and unobstructed
LFiissacc xo oacu iuiuvuu ui c uuite wi
otuer territorial rignts. ino contin-
ued eoj-.-yiuent oi o her proprietary
. ights must be presumed unless ex-
pressly renounced. Vattel Law Na-
tions sec '73.
Tbe territory of the United States
iucl udes the laKes seas and rivers
ly'ii.g within its limits; hence rivers
flowing through it form part of its do-
main and cannot be cons dered as free
to ether countries any more than the
adjacent lands. An exception to this
reueral rule has been sometimes claim
ed where the river flows from one state
through the territory of another in
fa vdr of the right of passage to and
from the inland state for commercial
aad other peaceful purposes. While
this exception has been sometimes con
tested (ex.--gr. by Spain over the Mis
sissippi Oreat Uniain over the St.
La wrence 'Holland over the Scheldt) it
is at'best regarded as an imperfect
right subservient to the convenience
and safety of the state affectpd. Wheat-
on International Law 188-205; Poison
Liw Nations 30.
It therefore seems clear that there
is no duty created by international law
or by treaty which requires that the
waters collected along the Rio Grande
and lying wholly within the United
States shall be so discharged as to aid
in the navigation of the Rio Grande
along the Mexican boundary; and tbe
diversion of waters lying whoily within
the United States is not a vio ation of
any treaty rights secured to Mexico.
If it were otherwise the secondary and
dependent right of navigation would
absorb the superior and primary terri-
torial rights of the United States over
its own domain and s abject lands
wholly within the limits of this repub-
lic to tbe burdens of a servitude not ex-
pressed in the treaty or imolied from
aoy reasonable interpretation of its
language.
This brings us to a consideration of
the question as to whether the Rio
Grande is a navigable river in New
Mexico and at the point known as
Elephant Butte within the mean-
ing of the acts of congress of 1890 aad
18!2.
Counsel on each side of this case con-
cede that the court takes judicial no-
tice of wht ar navigable rivers; but
for the enlightenment of the court in
this matter a great mass of documenta-
ry information has been submitted in
the shape of maps reports of exploring
and surveying expeditions made under
the war and interior departments of the
government and also report of officers
specially detailed to investigate the
feasibility of utilizing the river fo"
navigation and its capabilities for res-
ervoirs and irrigation.
It will ba observed that In the origi
nal bill it was not charged that the
Rio Grande is a navigable river above
El Paso but charged that the river is
navigable below El Paso and that de
fendants' proposed dam (125- miles
above) will destroy the river as a stream
diminish the volumeof water bcdow and
materially affect its navigability. The
amended bill charges that the river is
navigable up ss far as Roma a short
distance above the Gulf of Mexico and
is su:c?ptible of navigation and has
been navigated from Roma to a point
150 miles below El Paso (Presidio del
ISorte.-') where the falls and rapids in-
terrupt navigation and that the river
above the falls is susceptible of naviga-
tion up to La Joya above Elephant
.Hutte; tne bill closes this part with an
allegation that the river is navigable
aco susc?pT.i Die oi being navigated as
aforesaid for carrying on commerce
between the territory of New Mexico
the state of Texas and the republic of
Mexico. ii
The course of tbe Rio Grande in New
Mexico is through rocky canons and
sandy valleye: in the valleys it spreads
out shallow and between low banks:
over fine light sandy soil of great
aeptn; bars are continually iormtng
passing away and reforming and the
quicksands in the bed of the stream
and along its margin are perilous to
life. The fall is from four to fifty-
two feet to the mils and the changes
in its course are rapid continual acd
often radical; the valley is scarred
witn low ravines made by its progress
in a rrerent places. in ail the period
of time only two instances were shown
where the river was actually utilized
for the conveyanca of merchandise.
and these were timbers; one of these
instacces occurred in 18o8 or 1859 when
a raft was sant down from Canutillo to
Ft Paso a distance of 12 miles; and the
olner recently wnen some telegraph
poe3 w!"e noatea Irom La Joya a
stream especially in central and south -
era .lew Mexico is neaviiy loaded witn
silt. The channel of the river through
these valleys is usually choked with
sand and in times of low water the
stream divides into a number of minor
cnannets; ana apparently a large per
centage o- the water is lost in these
great deposits of fine material." (12
Annual liept. tjeoL Sur. 204.) "From
liernaiuio (N. M.)
to Fort Hancock
(Tex ) the Rio Grande is in the hio-heat
degree spasmodic with immense floods
during a few weeks of the year and a
small stream during the remainder of
it." (10 Annual Kept. Geol Sur. p. 99.)
"From personal observation I know
that these seasons of flood and drouth
in Rio Grande) were of about the same
character SO years ago." (Maj. Anson
-Mills 10 U S. C'av. Kept. Spec. Com
Sen. Vols. 3 and 4 p. M.) But what is
of more importance we have reports of
officials upon the exploration of the
river mada under directions of the gov-
ernment for the special purpose of con-
sideriog its navigability. From these
it appears: "The stream is not now
navigable and it cannot be made eo by
an open channel improvement. An ac-
curate survey and hydrometric obser
vations would be necessary to deter
mine positively whether an improve
ment by locks and dams could be made
or not but the heavy fall of the river
thelowness of its banks and the small
discharge do not encourage the belief
tuat sucn improvement wouia De unan-
cially even if physically practicable.
Certainly there in no public interest
which would justify the expenditure of I
the many millions of dollars which I
such an improvement would involve. I
The irrigation of the vallev is a matter I
in which the inhabitants are now deep -
ly interested while the possible navi-1
gation of the river receives little or no I
attention from tbem. In mv I
judgement the stream is not worthy of
improvement by the general govern
ment." (Rep't of O. H. Ernst. Mai.
of Engn'rs to Secretary of War 1889.)
Again "i consider the construction
not only of an open river channel but
of any navigable channel to be imprac
ticable. During the greater
part oi tne year when the river is low.
tue discharge would be insufficient to
supply any rjavigable channel except
perhaps a narrow canal with locks the
construction oi wnicn on a ioundation
of sand in places forty feet deeD.
would be financially if not phvsicallv
impracticable." (Rep't of Gerald
Bagnall Ass't. Engn'r. to Secv. of War
low. i
The navigability of a river does not
depend upon its susceptibility of being
so improved by high engineering skill
aud the exoeuditure of vast aiima f
monev. but unon its
I'oiau on? in iMnmi k i hi wn in-...
loo the sunrema r.niirt sav Thnaa
sav:
rivers must be regarded as public navi
gable rivers in law which are navigable
in fact and they are navigable in fact
when they are used or are susceptible
or oemg used in ineir ordinary condi
tion as nignways ror commerce over
which trade and travel are or may be
conducted in the customary modes of I
trade and travel on water." In the
Montilio 20 Wallace 431 the Court
says: "If it be capable in its natnri
state of being used for purposes of com
merce ug matter in wnat mode that
commerce may be conducted it is nav-
igable in fact and becomes a public riv-
er or highway the vital aud
essential pint is whether the natural
navigation of the river is such that it
affords a channel for useful ommerce."
xne court approves the language of
Chief Justice Shaw in 21 Pickering 344 1
wuo biu; -in oruer to give it the I
obaracterofa navigable stream it I
must be generally and commonly use-
ful to some trade or agriculture." See
also Morrison vs. Coleman (Ala) 3 L.
R. A. 334. Of course it need Dot be
perennially but the seasons of naviga-
bility must occur regularly and be of
sufficient duration acd character to
subserve a useful public purpose for
commercial intercourse. While the
capacity of a stream for floating log? or
even of thin boards may be considered
yet the essential quality is that the
capacity should be such as to subserve
a useful public purpose. Angell Water
Courses 535. In a recent case the su-
preme court of Oregon say per Thayer
C.J. "Whether tbe creek in question
is navigable or not for the purposes for
which appellant used it depends upon
its capacity in a natural state to float
logs and timber and whether its use
for that purpose will be an advantage
to the public. If its location is such
and its length and capacity so limited
that it will only accommodate but a
few persons it cannot be considered a
navigable stream for any purpose. It
must be so situated and have t-uch
length and capacity as will enable it
to accomodate the public generally as a
means of transportation." And in the
same cae Lord J. said: It must be
"susceptible of beneficial use to the
public" be "capable of such floatage
as is of practical utility and benefit to
tho public as a highway." And of the
stream then in question he says: "It
is cot only cot adapted to public use
but the public have made do .attempt
to use it for any purpose." Haines vs.
Ball (Oregon) 3 L. R. A. 609. The su-
preme court of Alabama says: "In de-
termining the character of a stream
inquiry should be made as to the fol-
lowing points: whether it be fitted for
valuable floatage; whether the publio
or only a few individuals are interested
in transportation; whether any great
public interests are involved in the use
of it for transportation; whether the
periods of its capacity for floatage are
sufficiently long to make it susceptible
of use beneficially to the public. "Roads
vs. Otis 33 Ala. 578; Peters vs. N. O.
M. & C. R. Co. 50 Ala. 523. Indeed In
the letter of inquiry by the Hon. Rich-
ard Ol ney secretary of the state in
respect to the facts as to navigability
of the Rio Grande in interstate com-
merce among other essential qualities
he says: "It should be remembered
that a mere capacity to float a log or a
boat will not alone make a river navi-
gable. The question is whether the
river can be used profitably for mer-
chandise. I have been informed that
wood is sometimes brought down the
river to Cuidad Juarez in flatboats and
that logs are rafted or floated down
from the timbered lands on the upper
river for commercial purposes." (Let-
ter Jan. 4 1897). The secretary of state
seems to have been misinformed as to
such use for commerce. This letter
was addresed to Col. Anson Mills at
whose request it appears that applica-
tions for right-of-way for irrigation by
the use of waters of the Rio Grande
and all of its tributaries were suspend-
ed throughout New Mexico and Colo-
rado. The answer of Col. Mills deals
almost wholly with the river interna-
tionally the river in its relation to in-
terstate commerce is dismissed by him
with an instance of the floating "of a
raft of logs in 1859 from a point IS
miles above El Paso and the qualify-
ing remark "it would now hardly be
practicable to do so." (Letter Jan. 7.
1897.) .
The fact that dams have been erect-
ed across the river at El Paso and oth-
er places from the earliest times and
the fact that no use has been made of
the stream for navigation or floatage
are facts which though they do not in
1 themselves determine its susceptibility
of navigation are nevertheless entitled
to great weight. They are facts clear-
ly indicating the common judgment
and knowledge of the people who have
had the longest and most intimate ac-
quaintance with the capabilities of tbe
river.a knowledge foundedbn their own
experience and that of their ances-
tors. The Rio Grande ia not a navigable
I river in New Mexico.
I Tbe next point ia that even though
I the Rio Grande be not navigable in
I New Mexico still the contemplated
I obstruction will diminish the waters
I and thereby impair the navigability of
I the river at points several hundred
miles below near its mouth at the gulf
and that therefore it is an obstruction
within the meaning of the act of 1890.
Counsel for defendant raise the point
tnat tne undisputed tact is that a dam
I h8 been malntained-for nearly.two-hun-
I area years across the river at El Paso
by which the waters of the Rio Grande
are diverted into irrigating ditches in
the city of El Paso and upon Mexican
soil; and that in a proceeding in equity
I a cnanceiior cannot close his eyes to
the fact that apparently some other
purpose than navigation is the real ob
ject of this proceeding. If however
tbe threatened act of the defendant be
illegal I cannot agree that the govern
ment becomes powerless to resist it
I inerely because others are engaged in
enterprises.
I We will therefore consider the oues-
I tloa whether the contemplated ob-
swuction at Llephant Butte will be an
illegal interference with the naviga-
bility of the river several hundred
miles below toward the gulf. The act
of 18!)0 U Sup. R. S. p 803) prohibits
tne creation of obstructions "not
affirmatively authorized by law" to the
"navigable capacity" of any waters of
the United States. Its terms are more
comprehensive than the act of July 13
1893 prohibiting the erection of dams.
etc. etc. in any navigable river with
out the permission of the secretary of
war. It is contented that under tha
act of 1890 an obstruction no matter
where placed is unlawful which diverts
waters from flowing into a -navigable
river and thereby effects the navurabln
capacity of such a river. But a careful
reading of the act will not I think
sustain the contention. The act in.
plies only to obstructions to waters of
which the United States has jurisdic
tion and then only to the nabigable
capacity of such . waters. The lan-
guage is "the creation of anv ob
struction not affirmatively authorized
by law to the navigable capaoity of
aay waters in respect of which the
Lnited States has jurisdiction is hereby
p ohibited." Waters which are not
navigable are local and subieet tn lnoal
laws. The jurisdiction oi congress
over waters arises from the power to
regulate commerce between the states
aod foreign nations. Veazie vs. Moor
14 Ilow. ob8. Gould Waters 34. Ilnlpss
therefore the stream is navisrable. and
a means of communication between the)
smues auu ioreign nations congress is
utterly without jurisdiction over it ex-
cept in respect of its riparian rights
arising frona the ownership of the soil
tnrougn wn.:ca sucn waters run.
VVe might close the opinion at thin
point but the important interests and
questions involved in this cause per-
haps require a more extended con-
s. aeration.
The riparian rights of the United
States were surrendered in 1866 fR. s.
2339.) Prior to that time it. had be
come established that the common
1&w doctrine of riparian rights was un
uneu iu tne conditions in the far west
Continued on Fourth Pa sre 1
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El Paso Daily Herald. (El Paso, Tex.), Vol. 17, No. 264, Ed. 1 Friday, November 5, 1897, newspaper, November 5, 1897; (https://texashistory.unt.edu/ark:/67531/metapth296111/m1/3/: accessed July 11, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; .