VI.

At the measuring station at San Marcial, 40 miles above Elephant Butte, the Rio Grande is shown from evidence and measurements filed in this case to be largely a torrential stream, varying from a dry bed to floods of considerable size and duration, and this torrential flow characterizes its entire course through New Mexico.

VII.

In its course both in Colorado and New Mexico a large percentage of its waters are constantly lost by causes not accurately determined, but generally classed as seepage and evaporation, and between San Marcial, N. Mex., and El Paso, Tex., a distance of 300 miles, measured by the sinuosities of the river, it is shown that the percentage of loss from such causes is about one-third of the entire volume of such water, and at various other points in New Mexico such losses, more or less equal in percentage, are also shown to occur.

VIII.

While there are no measurements from which the percentage of loss by evaporation from the volume of water after the same passes El Paso, Tex., can be definitely determined, yet the general character of the bed, banks, formation, and soil is shown to be of the same general character as that portion of such stream lying between San Marcial and El Paso where such large losses in volume have been accurately determined, and that for a distance of 400 miles below El Paso, Tex., measured by the sinuosities of the river, to Presidio del Norte such seepage and evaporation continues to diminish the volume of such waters.

IX.

Between Elephant Butte, the point where defendants propose to divert the waters of such stream, and Presidio del Norte, a distance of 640 miles by the sinuosities of the stream, there are no living tributaries to said Rio Grande, and the waters of such stream are not reenforced substantially between such points by any regular flow or tributary and there is no perennial flow of the Rio Grande at Presidio del Norte.

X.

The first perennial tributary of the Rio Grande below Elephant Butte is the Conchos, which comes into the Rio Grande at Presidio del Norte. The Conchos is a perennial stream rising in the moun

tains of northern Mexico and flowing several hundred miles northerly into the Rio Grande. In season it is a torrential stream of great magnitude, and at all times carries a considerable quantity of water. A cross section of the Rio Grande near and just below where the Conchos joins it shows an area at least twenty-five times as great as the area of a cross section of the Rio Grande just above the mouth of the Conchos, measured to the highest watermark known, so far as disclosed by the evidence, in thirty-three years, the carrying capacity of the lower cross section being variously estimated at from sixteen to twenty-five times as great as the upper cross section.

XI.

It has only been shown by the evidence that the waters in the Rio Grande bed passed Presidio del Norte, the mouth of the Conchos, in considerable quantities upon one occasion-that is, during the month of May, 1897-but it is fairly inferable from the testimony that such waters have so passed such point on other occasions in such quantities. No evidence has been offered as to the amount then so passing the mouth of the Conchos in the Rio Grande bed except that of one witness to the effect that the height of the same over a ford some distance below the mouth of the Conchos (the dimensions of the river at that point not being shown) was increased about 3 feet, and the duration of its passage at such height was for about eight or ten days, and except some estimates based upon the surface area of the cross sections referred to showing the flow to be 3,250 cubic feet per second. And I find that the evidence fails to show at the period mentioned the waters so flowing by the mouth of the Conchos affected the height of the river at Laredo, Tex., to any considerable extent.

XII.

It appears from the evidence that the Rio Grande was navigated in a common rowboat, drawing about 6 inches of water, during the winter season of 1893-94, from El Paso, Tex., to the mouth of the Conchos, a distance estimated at 400 miles by the sinuosities of the stream, at a stage of water from 3 to 34 feet deep at El Paso, Tex., at the time of starting, said trip occupying twenty-one days, and without finding any obstructions in said stream except scarcity of water for the last 40 miles above the mouth of the Conchos. That after remaining a period of eighteen days in the vicinity of Presidio del Norte the party making said trip embarked upon water said to have been furnished from the Rio Conchos and continued to Del Rio, Tex., a distance of 562 miles by the sinuosities of the stream.

XIII.

There is no evidence in the case tending to show that there is any obstruction to the free and uninterrupted flow of the Rio Grande from Del Rio, Tex., to Rio Grande City, Tex.

XIV.

There is no evidence in the case tending to show that water which has reached Del Rio, Tex., would not uninterruptedly continue to flow to Rio Grande City, Tex., except such portions thereof as may be lost by seepage or evaporation.

XV.

The Conchos River enters the Rio Grande from the Mexican side at nearly right angles. On the lower or southerly side of the Conchos there is elevated ground upon which is situated the village of Presidio del Norte. On the upper or northerly side of the Conchos and on the westerly or Mexican bank of the Rio Grande the land is low and subject to much overflow. On the Americau side of the Rio Grande at the mouth of the Conchos the banks are high and not subject to overflow.

XVI.

The distance by the sinuosities of the river between Presidio del Norte and Rio Grande City is something over 900 miles, and the bed of the stream between such points appears to be practically a succession of basins or valleys of greater or less extent, and of the same character and affording the same facilities for absorbing the water as the valleys above El Paso, or those above the mouth of the Conchos, and I find that large amounts of water flowing between the Conchos and Rio Grande City are lost between said points by evaporation and seepage.

XVII.

The character of the formation in the basins or valleys of the Rio Grande, at the only point where the same has been sounded to any great depth, that is, by the boundary commission at El Paso, Tex., show the depth of sand and gravel to be at least 60 feet, and I can see no reason why the other valleys and basins along the course of the Rio Grande should not show the same formation to at least the same depth, the surface indications and appearance being substantially the same throughout its length.

XVIII.

The watershed of the Rio Grande and its tributaries above Elephant Butte is approximately 25,000 square miles in extent. The watershed between Elephant Butte and El Paso is approximately 5,700 square miles. The watershed from Elephant Butte to Rio Grande City, of the Rio Grande and its tributaries, after deducting the area of such basins as may not find an outlet into the stream, is approximately 170,000 square miles. The source of supply of the water flowing past Rio Grande City at the head of navigation is largely this comparatively enormous watershed of 170,000 square miles below Elephant Butte, feeding with tropical rains the Conchos and San Juan particularly, rising far south in the mountains of Mexico, and flowing north into the Rio Grande, and also affording a supply for the Pecos, Devils River, the Good Enough, and other perennial streams, as well as the decreased but still flowing waters of the San Felipe and Salado, and at times filling with floods the now dry beds of the former perennial streams heretofore referred to as well as many smaller streams not named.

XIX.

Records have been kept of the flow of water passing El Paso, Tex., for the part of the year 1889 and for the years 1890, 1891, 1892, part of 1893, 1897, 1898, and part of 1899. No records were kept for any other years. These records so kept show the amount of water passing El Paso for said years respectively to be as follows, viz:

The river, after having been dry, commenced to run about December 10, 1899.

XX.

The evidence shows that certain cross sections were taken by a member of the International (Water) Boundary Commission at a certain point 1 mile below Rio Grande City, Tex., which indicates the amount of water required to raise the river at that point, as appears from the following table:

Estimated flow of Rio Grande 1 mile below Rio Grande City, Tex.

[Conditions assumed: River at low water; sudden rise comes, rising 1 foot in four hours at first, and going up to high water.]

After passing 11 feet this does not show all of flood flow, as water would begin at this height to leave river above cross section.

XXI.

The evidence shows that a cross section was also taken 21 miles (by river) above Brownsville, Tex., and shows the capacity of the river at said point to be as follows:

Estimated flow of Rio Grande 21 miles (by river) above Brownsville, Tex. [Conditions assumed: River at low water, sudden rise comes, rising 1 foot in four hours at first, and going on up to high water.]

After passing 8 feet or 9 feet this does not show all of flood flow, as water would begin at this height to leave river channel above cross section.

XXII.

The testimony in the case shows the following table of distances,

viz: