The proposed dam and reservoir of the defendants would contain 11,036,722,000 cubic feet of water, or 253,370 acre-feet of water.

XXIV.

The defendants propose to irrigate 230,000 acres of valley and 300,000 acres of mesa lands-in all, 530,000 acres. In accordance with the amount of water used in Colorado and New Mexico for irrigating land, it will require 954,000 acre-feet of water to irrigate that quantity of land proposed to be irrigated by defendants, or from three to four times the capacity of the said reservoir.

XXV.

The testimony shows the following to be the time it would have taken all the flow of the Rio Grande to have filled the Elephant Butte reservoir, supposing it to hold 253,000 acre-feet, during the maximum flow in each year, from El Paso gauging station, viz:

1889. All of May flow, and 8 or 10 days of June flow.

1890. From May 15 to June 3--1891. From May 12 to May 20

1892. From May 2 to May 17.

1893. From April 25 to May 31.

1897. From May 24 to June 3

1898. Two floods-April 22 to May 8, and July 17 to July 25--

1899. No flood. Total flow for vear only 70.000 acre-feet at El Paso.

Days.

40

19

9

16

37

11

26

XXVI.

The testimony shows the time necessary each year to fill the proposed Elephant Butte reservoir of the defendants, supposing it to hold 253,000 acre-feet, and starting at the beginning of spring flood, and allowing enough water to pass proposed dam to supply all ditches below it (assuming this amount to be 500 second-feet for the El Paso Valley), would be as follows, viz:

Days.

1889. From record of El Paso gauging station, all surplus flow above 500 second-feet from May 1 to June 15.

1890. Same conditions, from April 17 to May 19. 1891. Same conditions, from April 12 to May 3. 1892. Same conditions, from April 15 to May 7

1893. All surplus flow above 500 second-feet at El Paso gauging section for irrigation season would lack 11,000 acre-feet of filling reservoir. 1897. From record of El Paso gauging station, all surplus flow above 500 second-feet, from April 13 to May 11.

1898. Same condition, from April 17 to June 20‒‒‒

1899. During whole season only 6,500 acre-feet passed El Paso gauging station above the 500 second-feet.

XXVII.

That the evidence shows that cross sections of the Rio Grande were taken by a member of the boundary commission to the extent of three or four per mile for the entire distance from Riogrande city to Brownsville, Tex., and that the two cross sections hereinbefore referred to were a fair indication of the contour of the Rio Grande between those points.

XXVIII.

In attempting to arrive at a conclusion in this case I have made some computations based partially upon known data and partially upon probabilities arising from the evidence. In such computations I have assumed the following conditions:

1. It appears by comparison of the tables of measurements at the gauging stations of San Marcial and El Paso that there is no material flattening or tailing out of the floods in the Rio Grande. If this remains true throughout the entire course of the river, a body of water passing El Paso would reach Rio Grande City, if at all, in practically the same form as to length and height as at El Paso, less losses between those points.

2. It seems probable, from the conditions of the bed and banks of the stream and the climate of the country through which it passes, that any flow of less than 2,000 second-feet at El Paso or 3,000 second-feet at San Marcial can not possibly have any effect on the river at the head of navigation. It also seems probable that only such flows as are above this amount and are sustained for a con

siderable period could reach the head of navigation in substantial quantities.

3. It seems probable that loss by seepage and evaporation will be as great between El Paso and Presidio del Norte as between San Marcial and El Paso. The loss may be greater owing to greater distance.

4. From Presidio to Rio Grande City flood waters from El Paso would encounter in the bed the perennial waters known to exist there. To what extent they furnished a water table for these flood waters to travel upon is unknown, but I have assumed in this computation that losses by seepage and evaporation are thereby lessened, and have taken an arbitrary 20 per cent as representing the probable loss from such causes.

5. It seems probable that a flood passing El Paso would reach Rio Grande City, if at all, in from fifteen to twenty-five days, assuming the river to have comparatively a uniform fall between those points.

6. It appears from the evidence that a rise of 2 feet above low water between Rio Grande City and Brownsville is necessary to make navigation practicable; and these waters usually flowing down to that point, if at all, at a season when other supplies are low, I assume a rise of 2 feet to be necessary to be of any substantial benefit to navigation.

7. Assuming these conditions, I have prepared the following table:

Assuming the loss from seepage and evaporation between El Paso and Presidio del Norte to be 45 per cent instead of 333 per cent (which would be at the same rate of loss per mile as is shown to occur between San Marcial and El Paso), the result, assuming all other conditions to be as hereinbefore stated, would be as shown in the last column of the foregoing table.

It will be observed that the above results show a contribution from floods passing El Paso to the navigable capacity at Rio Grande City to the extent of a rise of 2 feet during four of the ten years mentioned, when 33 per cent is deducted for loss between El Paso and Presidio, and during three years out of the ten years, counting 1892, when 45 per cent is deducted between the same points. It is to be further observed that no account is taken in the above computation for variations in the height of floods at El Paso, but the results simply show the average height a given amount of water passing El Paso, less deductions for probable loss, would raise the river at Rio Grande City, for the same number of days it was passing El Paso. If these variations continue from El Paso to Rio Grande City, the beneficial effect on navigability would be lessened, owing to corresponding irregularity in the height of the raise at the latter point.

How reliable such results may be can not be determined from the evidence. Whether the loss is less or greater between the points named is unknown. There is some evidence in the case tending to disprove the correctness of such results. For example, the testimony of Daly to the effect that the 1897 flood only lasted eight or ten days at Presidio del Norte, and the testimony of Turpin that the same flood made no appreciable change in the river at Laredo, and the affidavit of Kelly to the effect that they have had no floods from the Upper Rio Grande in recent years. On the whole, I am unable to say to how much credit the result of such computations are entitled in arriving at the ultimate fact in question in this case.

XXIX.

There is no direct testimony in this case showing that any given quantity of water in the Rio Grande passing El Paso reaches Rio Grande City, the head of navigation, and there accomplishes any certain effect upon the navigability of the stream.

XXX.

That the waters of the Rio Grande passing El Paso occasionally in seasons of high and protracted floods reach Rio Grande City, the head of navigation, in considerable quantities seems probable, but that they reach that point in quantities sufficient and in such form as to substantially add to the navigable capacity of the stream is not

satisfactorily established by the evidence; nor can such a conclusion be satisfactorily deduced therefrom. I therefore find that the intended acts of the defendants in the construction of a dam or dams or reservoir, and in appropriating the waters of the Rio Grande, will not substantially diminish the navigability of that stream within the limits of the present navigability.

Let a decree be prepared and entered dismissing the bill of complaint herein.

FRANK W. PARKER, Judge, etc.

ALBUQUERQUE, N. MEX., January 1, 1900.

Final decree overruling motion, dismissing complaint, and granting an appeal to the Supreme Court of the Territory of New Mexico, January 9, 1900, filed January 9, 1900.1

In the district court of the United States for 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.

THE UNITED STATES OF AMERICA, PLAINTIFF,

v.

THE RIO GRANDE DAM & IRRIGATION COMPANY ET AL,

defendants.

No. 1243.

This cause coming on to be heard on the 9th day of January, A. D. 1900, on the motion for rehearing heretofore filed in this cause by the plaintiff, and upon the affidavits of Marsden C. Burch, Warner P. Sutton, and Frank P. Clark, filed by the plaintiff in support of said motion, and the affidavit of Frank P. Clark, filed by the defendant in opposition thereto, all parties being before the court by their attorneys, and the court being advised as to the law and the premises, it is ordered, adjudged, and decreed by the court that the said motion of the plaintiff be, and the same hereby is, in all things overruled.

Now, this cause coming on again to be heard on the testimony, pleading, finding of facts heretofore made by the court and filed on January 2, 1900, and the record heretofore taken and made in this cause, all parties being present by their respective attorneys of record, and the argument of counsel being heard, and the court being fully advised as to the law and the premises, it is ordered, adjudged, and decreed by the court that the bill of complaint of the plantiff herein be, and the same hereby is, dismissed.

1 [Extract from the record of the proceedings before the District Court, Third Judicial District, Territory of New Mexico. See transcript of proceedings before the Supreme Court of the United States, October Term, No. 49, page 30.-Agent's note.]