pellant by showing that certain given quantities of water passed El Paso at certain periods specified, the natural presumption and result of which would be that it continued on down the course of the channel of the river. But this proof was met by the appellees by showing that the bed of the Rio Grande is of a porous character, and capable of absorbing immense quantities of water; also that immense quantities of water are lost by evaporation. This state of facts being made to appear, the appellant in this case was again compelled to assume the burden of showing that, after these losses had taken place between El Paso and the head of navigation, there still remained a given quantity of water which would effect certain results at the point of navigability. In this the appellant failed. In fact, so far as disclosed by this record, such evidence is not in existence, there having been at the time of the trial of this cause no gauging stations or other adequate means to measure the flow of the stream occasioned by waters passing El Paso.

The ninth assignment of error is not well founded. It must follow, as a natural consequence, upon a finding that the proposed acts of the defendants would not impair the navigable capacity of the Rio Grande, that the bill should be dismissed. The only purpose of the bill in the present condition of the case was to enjoin such acts of the defendants only so far as they might effect that result.

The tenth assignment of error is general, and is directed to all of the findings of fact by the court, and can not be sustained.

The eleventh, twelfth, and thirteenth assignments of error relate to the application for a rehearing of the case.

The application for a rehearing is based upon two propositions: (1) The discovery of new evidence between the time of the final submission of the cause to the court and the entry of the decree. (2) An undertaking on the part of the government to establish gauging stations along the Rio Grande below El Paso for the purpose of accurately measuring the flow of that stream, so as to furnish reliable evidence not furnished upon the trial.

The first proposition is supported by the affidavit of one Frank P. Clark, a resident of the city of El Paso, State of Texas, the affiant stating that in the spring of 1881, he, together with other persons, constructed in the city of El Paso a large rowboat, 20 feet long and 6 feet wide; that they placed therein supplies for a prospecting trip, and that Clark and his companions, three in number, embarked in said boat at or near the ferry across the said Rio Grande between El Paso and Paso del Norte, Mexico, now called Juarez; that the Rio Grande was not then at high-flood stage, but was flowing a good volume of water, ample for their purposes; that they made very quick time, and at the close of the fifth day-May 9, 1881

the party passed the mouth of the Conchos River; that the boat came the whole journey safely, having at all times on the way an ample supply of water, and that in the last stages the volume of water in the stream appeared to be even larger or deeper than when they left El Paso, Tex. No evidence or proposed evidence is submitted as to the flow of the river at El Paso subsequent to the Departure of this party down the stream-whether the same remained stationary in height as it was upon their departure; whether there was a pronounced rise or fall therein. Consequently, this proof, if submitted, could have no effect on the judgment in this case.

As to the second proposition submitted in support of the application for a rehearing, it is a proposal not to produce evidence which already exists, but to create evidence not existing at the time of the trial or of the application. We think no sufficient diligence has been shown by the Government in this case in regard to this evidence. From the time of the issuing of the mandate by the supreme court of the United States remanding this cause for this investigation the Government took no steps whatever to furnish this evidence. It is not shown in the application why no such step had been taken. Even during the trial of this case it must have been as much apparent to counsel for the Government that this testimony was required to support the bill as it was after the findings of fact came from the trial judge. No mention of the same was made, nor any application presented to the court at that time. Again, it is not shown by this application that the result of any such proposed investigation will change the conclusion reached in this case. The Government simply asks that this cause be reopened for the purpose of permitting it to make an experiment which it should have made before that time, and the result of which no one undertakes to foretell. It is true that the question of fact involved is one of difficulty, and satisfactory evidence can be obtained only after extensive experiment; but the Government has seen fit to try the case without taking any precautions in this regard, and must be held to the consequences of its neglect. We know of no rule, taking into account even the great public importance of this case, which would authorize this court or the court below to reopen the case under such circumstances. (See Rogers v. Marshall, 13 Fed. 59; Munson v. Mayor, etc., 11 Fed. 72; Burrows v. Wene, 26 Atl. 890; Beach, Mod. Eq. Prac. 837; Pittsburgh Reduction Co. v. Cowls Electric-Smelting & A. Co., 64 Fed. 125.) Burrows v. Wene, Supra, was a case tried by the chancellor, as this was, and a similar application was made and denied.

The fourteenth and last assignment of error relates to the refusal of the court to make findings of fact as to the effect upon the navigability of the Rio Grande at the point of present navigability of

the diversion from the stream of waters for irrigation purposes in the state of Colorado, and to the refusal of the court to find the ultimate fact in this case in favor of the Government.

We do not find in this record any sufficient evidence upon which to base a satisfactory finding as to the effect of the diversion of water from the stream in Colorado upon the navigability of the stream at Rio Grande City, and we think the refusal of the trial court to make those findings was correct. The refusal of the court to find the ultimate fact in this case in favor of the Government is, as we have before stated, in full accord with our view of the testimony in this case, and was therefore correct. We find no error in the record, and the decree of the lower court will be affirmed, and it is so ordered. McFie and Crumpacker, JJ., concur; Parker, J., having tried the case below, did not participate in this decision; Leland, J., absent. Order granting an appeal to the Supreme Court of the United States, November 13, 1900, filed November 14, 1900.1

Now, on to wit the 13th day of November, A. D. 1900, It is ordered that the appeal prayed for be allowed, from the said decree and judgment of the court entered in said above-entitled cause, on the 24th day of August, A. D. 1900.

And it is further ordered that the said appellant have leave to file assignment of error and make the same a part of the record in said cause by the clerk, or at any time after the said cause may be docketed in the Supreme Court of the United States.

And it is further ordered, that citation issue in said cause to be served upon the Counsel for the said appellees, as required by the statutes and rules of the Court.

Chief Justice of the Supreme Court
of the Territory of New Mexico.

[Extract from the record of the proceedings before the Supreme Court of the Territory of New Mexico, November 14, 1900. See Transcript of record before the Supreme Court of the United States, October Term, 1909, No. 49, page 94.-Agent's note.]

37973-23-5

PROCEEDINGS IN THE SUPREME COURT OF THE UNITED STATES.

Opinion of the Court, March 3, 1902.1

[184 U. S. 416. October Term, 1901.]

UNITED STATES

v.

RIO GRANDE DAM & IRRIGATION COMPANY.

Appeal from the Supreme Court of the Territory of New Mexico.
No. 239. Argued November 14, 15, 1901. Decided March 3, 1902.
The case is stated in the opinion of the court.

Mr. Marsden C. Burch for the United States, appellants.
Mr. J. H. McGowan, for appellees.

Mr. Justice HARLAN delivered the opinion of the court.

This suit presents a contest between the United States and the appellee corporations as to the right asserted by the latter to construct over and near the Rio Grande a certain dam and reservoir for the purpose of appropriating the waters of that river in their private business.

By the seventh article of the treaty of February 2, 1848, between the United States and the Republic of Mexico it is provided that "the river Gila and the part of the Rio Bravo del Norte lying below the southern boundary of New Mexico, being, agreeably to the fifth article, divided in the middle between the two Republics, the navigation of the Gila and the Bravo below said boundary shall be free and common to the vessels and citizens of both countries; and neither shall, without the consent of the other, construct any work that may impede or interrupt, in whole or in part, the exercise of this right; not even for the purpose of favoring new methods of navigation. The stipulations contained in the present article shall not impair the territorial rights of either Republic within its established limits." 9 Stat. 928. And by the fourth article of the treaty of December 30, 1853, between the same countries it was further provided that the "several provisions, stipulations, and restrictions contained in the seventh article of the treaty of Guadalupe Hidalgo shall remain in force only so far as regards the Rio Bravo del Norte, below the initial of the said boundary provided in the first article of this treaty; that is to say, below the intersection of the 31° 47′ 30′′ parallel of latitude, with the boundary line established by the late treaty dividing said river from its mouth upwards, according to the fifth article of the treaty of Guadalupe." 10 Stat. 1034. Again, by a convention between the United States and Mexico, concluded December 26, 1890, provision was made for an international boundary com

mission, empowered, upon application by the local authorities, to inquire whether any works were being constructed on the Rio Grande which were forbidden by treaty stipulations. 26 Stat. 1512.

Just before the last named convention, Congress, by the act of September 19, 1890, c. 907, provided:

"That the creation of any obstruction not affirmatively authorized by law, to the navigable capacity of any waters, in respect of which the United States has jurisdiction, is hereby prohibited. The continuance of any such obstruction, except bridges, piers, docks and wharves, and similar structures erected for business purposes, whether heretofore or hereafter created, shall constitute an offence, and each week's continuance of any such obstruction shall be deemed a separate offence. Every person and every corporation which shall be guilty of creating or continuing any such unlawful obstruction in this act mentioned, or who shall violate the provisions of the last four preceding sections of this act, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding five thousand dollars, or by imprisonment (in the case of a natural person) not exceeding one year, or by both such punishments, in the discretion of the court. The creating or continuing of any unlawful obstruction in this act mentioned may be prevented and such obstruction may be caused to be removed by the injunction of any Circuit Court exercising juridiction in any district in which such obstruction may be threatened or may exist; and proper proceedings in equity to this end may be instituted under the direction of the Attorney General of the United States." (26 Stat. 426, 454, sec. 10.)

These treaties with the above and other acts of Congress being in force, the present suit was brought, May 24, 1897, in the District Court for the Third Judicial District of New Mexico-the plaintiff being the United States of America, and the original defendant being the Rio Grande Dam & Irrigation Company, a corporation of that Territory. By an amended bill, the Rio Grande Irrigation & Land Company-a British corporation doing business in the Territory of New Mexico was also made defendant. The latter corporation, it is alleged, was organized as an adjunct and agent of the New Mexico corporation.

The bill and amended bill show that the object of the suit was to obtain a decree enjoining the defendants from commencing or attempting to construct or build a certain dam and reservoir or any other dam, breakwater, reservoir or other structure, or obstruction of any character whatsoever, "across the Rio Grande or the waters thereof, or from maintaining such dam or obstruction in the Territory of New Mexico, and especially at Elephant Butte in said Territory, or any other point on said river in said Territory of New Mexico, as shall affect the navigable capacity of said Rio Grande at any point throughout its course, whether in the Territory of New Mexico or elsewhere."