FIRST TRIAL OF THE CASE.

PROCEEDINGS IN THE DISTRICT COURT.

Order granting temporary injunction, May 24, 1897.1

In the United States District Court of the Third Judicial District of the Territory of New Mexico.

THE UNITED STATES OF AMERICA

v.

THE RIO GRANDE DAM & IRRIGA

tion Company.

No. 140, Chancery.

Upon the filing and reading of the bill of complaint in this cause, it is ordered that a temporary writ of injunction issue against the defendant, The Rio Grande Dam & Irrigation Company, as prayed for in said bill, and it is further ordered that said defendant show cause, if any it have, before me in chambers, on Monday, the 14th day of June, 1897, why said injunction should not be continued in force until the final hearing of this cause, or should be dissolved. GIDEON D. BAntz,

Done in chambers, this the 24th day of May, A. D., 1897.

Judge.

Interlocutory order sustaining motion and dissolving injunction, July 3, 1897.2

In the District Court of the Third Judicial District of the Territory of New Mexico-In vacation-At Chambers.

UNITED STATES OF AMERICA,

v.

THE RIO GRANDE DAM & IRRIGATION COMPANY,

et al.

No. 140. Chancery.

And now this cause coming on further to be heard on the order to show cause, why the temporary injunction heretofore granted herein, should not be continued in force, made and entered of record

1

1 [Extract from the record of the proceedings before the District Court, Third Judicial District, Territory of New Mexico, May 24, 1897. See transcript of record before the Supreme Court of the United States, October Term, 1898, No. 215, page 9.-Agent's note.] [Extract from the record of the proceedings before the District Court. Third Judicial District, Territory of New Mexico, July 3, 1897. See transcript of record before the Supreme Court of the United States, October Term, 1898, No. 215, page 120.-Agent's note.]

1

in this cause, and the motion to dissolve said injunction heretofore filed herein, and the court having heretofore heard all the arguments of counsel, and being fully advised in the premises, doth sustain said motion.

It is therefore ordered by the court, that the motion to dissolve the injunction, heretofore filed by respondents in this cause, be and the same is hereby sustained, and that the injunction heretofore granted herein; be and the same is hereby dissolved.

GIDEON D. Bantz,

Judge and Chancellor.

Final decree dissolving injunction, dismissing complaint, and granting an appeal to the Supreme Court of the Territory of New Mexico, July 30, 1897, filed July 31, 1897.1

In the District Court of the Third Judicial District of the Territory of New Mexico, sitting for the trial of causes arising under the Constitution and laws of the United States.

UNITED STATES OF AMERICA, COMPLAINANT,

v.

RIO GRANDE DAM & IRRIGATION COMPANY ET ALS., DE

FENDANTS.

Order.

No. 140.

And now this cause coming on to be heard, the United States of America appearing by its attorney for the Territory of New Mexico, W. B. Childers, Esq., and with him appearing by courtesy, T. A. Falvey and W. B. Brack, Esq., of El Paso, Texas, and the defendant, The Rio Grande Dam & Irrigation Company and The Rio Grande Irrigation and Land Company, Limited, by their solicitors, W. A. Hawkins, S. B. Newcomb, and A. B. Fall, Esqrs., under the rule heretofore made upon the defendant, Rio Grande Dam & Irrigation Company, to show cause, if any it had, why the injunction, heretofore granted, restraining it from maintaining and erecting a dam in the Rio Grande River at a point called Elephant Butte, fully described in the original and amended bills, filed herein and in said order, should not be continued; and the said complainant, the United States of America, having filed an amended bill in said cause, making the Rio Grande Irrigation & Land Company, Limited, a party thereunder, and the said defendant, in answer to said amended bill, having filed a special plea in bar and having also answered said amended bill and also filed a motion to dissolve the injunction and

1 [Extract from the record of the proceedings before the District Court, Third Judicial District, Territory of New Mexico, July 31, 1897. See transcript of record before the Supreme Court of the United States, October Term, 1898, No. 215, page 122.-Agent's note].

to dismiss the original and amended bills so filed by complainant herein, and the complainant thereupon having filed its motion to set down defendants' pleas for argument as to their sufficiency as defense to said suit as a matter of law, and the court having heard the arguments of counsel and having heard read the affidavits, extracts from geological reports, agricultural reports, reports of engineers and of the Secretary of War, histories and other sources of information, and having had submitted to it, official map of the Territory of New Mexico and of the United States of America, showing the source, trend, course, and mouth of the Rio Grande River in New Mexico and throughout the United States and being fully advised thereby, doth take judicial notice of the fact and doth thereby determine that the Rio Grande river is not navigable within the Territory of New Mexico, and doth find as a matter of law that said amended bill does not state a case entitling the complainant to the relief asked for in the prayer of said amended bill and that the same is without equity and the complainant having further declined to amend said bill:

The court doth order, adjudge, and decree that the said injunction, heretofore issued, herein be dissolved and that said cause be, and the same hereby is, dismissed, and that the defendants have and recover their reasonable costs herein to be taxed against complainant.

And upon the complainant, the United States, in said cause praying an appeal from the order of the court, dismissing said cause, it is ordered that said appeal be and the same hereby is granted as prayed.

GIDEON D. BANTZ,
Judge and Chancellor.

Done at Chambers, this the 30th day of July, A. D., 1897.

Opinion of the Court.1

In the District Court, Third Judicial District.

UNITED STATES OF AMERICA,

v.

THE RIO GRANDE DAM & IRRIGATION COMPANY

No. 140. Injunction.

.et al.

SYLLABUS OF OPINION.

(1) Under the treaties with Mexico each Republic reserves all right within its own territorial limits. This would have been so upon principles of international law without such reservation. States lying wholly within

1 [Extract from the record of the proceedings before the District Court, Third Judicial District, Territory of New Mexico, July, 1897. See transcript of record before the Supreme Court of the United States, October Term, 1897, No. 215, page 125. This opinion is also printed in the British Memorial, as Annex III, pages 66 to 80.—Agent's note.]

the United States belong exclusively to it, and the soil within the United States is not burdened with a servitude in favor of Mexico, in respect to any duty to so discharge the water as to promote or preserve the navigability of the Rio Grande.

(2) It is not the capacity of a stream to float a log or a row boat which renders it a navigable river within the acts of Congress (1890 and 1892), but whether, at regular periods of sufficient duration and in its regular condition, its capacity is such as to be susceptible of beneficial use as a public highway for commerce. The Rio Grande in New Mexico is not a navigable river.

(3) The power to control and regulate the use of waters not navigable, exercised by States and Territories in the arid West, was confirmed by Congress by the act of 1866, and that power now resides wholly in such States and Territories under the act of 1877 and subsequently, therefore the diversion of such local waters is not a violation of any act of Congress, even though the navigable capacity at a distance may become thereby impaired.

OPINION OF THE COURT.

The issues briefly stated are these:

The amended bill charges that the defendant is (1) about to obstruct the Rio Grande, a navigable river, and (2) obstruct the flow of waters and interfere with the navigable capacity of a river. That such obstructions would be in violation of the acts of Congress of 1890 and 1892, and contrary to the treaty with Mexico.

A preliminary injunction was granted, and the defendant ordered to show cause why it should not be continued. The defendant filed its answer, denying that the Rio Grande is a navigable river; and also filed special pleas justifying under right of way for reservoir and canals secured under the acts of 1891 and certain Territorial laws. The issues arise on the motion to dissolve the injunction and upon the sufficiency of 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 entirely competent to deal with it.

The Rio Grande from El Paso to the Gulf of Mexico is the boundary line between Mexico and the United States, and under treaty between those Republics the Rio Grande along such boundary is made free and common to the vessels and citizens of both countries. There is no guaranty by either Republic that the Rio Grande is or will continue to be navigable, but each party stipulated that it would not construct any work "below the intersection of the 31° 47′ 30′′ parallel of latitude with the boundary line " which 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 surrendered any proprietary right to the adjacent soil or to any incident thereof. Indeed it is expressly stipulated that the treaty shall

not "impair the territorial rights of either Republic within its established limits."

The legal effect would have been the same had the reserving clause been omitted, as under the proper rule of construction the free and unobstructed passage is ceded without prejudice to other territorial rights. The continued enjoyment of other proprietary rights must be presumed unless expressly renounced. (Vattel. Law Nations,

sec. 273.)

The territory of the United States includes the lakes, seas, and rivers lying within its limits; hence rivers flowing through it form part of its domain and can not be considered as free to other countries any more than the adjacent lands.

An exception to this general rule has been sometimes claimed where the river flows from one State through the territory of another in favor of the right of passage to and from the inland State for commercial and other peaceful purposes. While this exception has been sometimes contested (e. g., by Spain over the Mississippi, Great Britain over the St. Lawrence, Holland over the Scheldt) it is at best regarded as an imperfect right subservient to the convenience and safety of the State affected. (Wheaton, International Law, 188-205; Polson Law 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 the diversion of waters lying wholly within the United States is not a violation of any treaty rights secured to Mexico. If it were otherwise the secondary and dependent right of navigation would absorb the superior and primary territorial rights of the United States over its own domain and subject lands wholly within the limits of this Republic to the burdens of a servitude not expressed in the treaty or implied from any 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 meaning of the acts of Congress of 1890 and 1892.

Counsel on each side of this case concede that the court takes judicial notice of what are navigable rivers; but for the enlightenment of the court in this matter, a great mass of documentary 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 reports of officers specially detailed to investigate the feasibility of utilizing the river for navigation, and its capabilities for reservoirs and irrigation.