aware that before the dam could be erected and the reservoir formed this land must be acquired. The owner of the Armendaris grant appears to have been a man named Waddingham, and at the first meeting of the local (El Paso) board of the English Company, of which a copy of the minutes is in the possession of the British Agent, it was decided that Mr. Bowman should procure the names of landowners in the Elephant Butte reservoir site and should write to Mr. Waddingham. At the meeting on December 9, 1896, the purchase of 130 acres of land in the new reservoir site upon conditions to be arranged was sanctioned and at the next meeting the secretary reported that he had acquired 134 acres of land in the reservoir site from J. S. Williams at a cost of $1,000. No agreement with Mr. Waddingham can have been completed as a letter from Mr. Roberts, the President of the American Rio Grande Company and a member of the local (El Paso) board of the English Company, to Dr. Boyd dated June 29, 1896 (Annex 10), says that if the Company does not succeed in making a settlement with the owners of the land within the Armendaris grant to be submerged by the reservoir, proceedings for condemnation will have to be begun. The passage in the United States Answer referred to would imply that the dam and reservoir at Elephant Butte could never have been constructed unless the owners of the private land had agreed to sell and had come to terms with the Rio Grande Company. This, however, is not so. The incorporation of the Rio Grande Dam (American) Company under the New Mexico legislation for the purpose of irrigation qualified it under the Act of the Territory of New Mexico to expropriate as of right the land which was necessary for the purposes of its undertaking. With regard to the land to be irrigated, the policy which the company was endeavouring to pursue was to enter into agreements with the owners of the land under which in return for water rights the owners would agree to cede part usually half-of their lands and to pay a water rental for the remainder. Annex 11 is a certificate by Mr. P. E. Kern, treasurer of the American Company, to the effect that he has in his possession 44 contracts Form B" aggregating 68942 acres and 21 contracts Form A" aggregating 28011 acres. The affidavit gives a list of these contracts. No copy of a "B" form contract has up till now been found by the British Agent among the papers in his possession, but he has found the original of a Form A contract with a family of the name of Casad for supplying water rights to lands belonging to them extending to 8417 acres and this can be produced at the hearing. The terms of this contract give the Company power in Clause 7 to enter and construct canals, etc., upon the land. It is not worth while to print it as an annex because the point made in the Answer of the United States is not one of any substance. If the Rio Grande Company had not been prevented from constructing its dam and reservoir, and if it had reached the position when it could deliver water, there would have been no difficulty about securing the necessary interests in the land. The owners would have been only too glad to take any steps required to facilitate irrigation, and if they had refused to do so, condemnation proceedings could have been taken. The amount paid over by the English Company to its local board or the American Company who were to act as its agents is shown in the balance sheet (Annex 9) of the assets and liabilities at the date of the winding up. Some further information which may be of interest to the Tribunal as to the state of the works when construction stopped in April, 1897, is afforded by the extracts from Mr. Campbell's reports (Annex 12). Mr. Campbell was the engineer of the Company at El Paso and various letters by and to him figure in the United States Appendix. The full reports from which these extracts are taken are not in the possession of the British Agent, but these extracts bear a certification by the Secretary of the Company in 1898. The Answer of the United States asserts that the books of the English and American Companies are known to be in existence and readily available, but that they have been withheld and not offered as evidence. Very few books and papers of the English Company are in the possession of His Majesty's Government. There is little beyond the Directors' Minute Book and a bundle of letters to Dr. Boyd from the representatives of the Company in New Mexico. Still fewer of the books and papers of the American Company are in the possession of His Majesty's Government; nor are the whereabouts of the missing books and papers known to them. Such books and papers as the British Agent has been able to trace are at the disposal of the Tribunal. The statement made by the Agent for the United States shows that in all probability the whereabouts of the books and papers are better known to him than to the British Agent and, if so, the latter hopes that they will be produced if they have any bearing on the issues to be decided by the Tribunal. The statement that the books have been withheld is not justified. It is stated on p. 50 of the United States Answer that the reason for the instrument of May 30 (U.S. Appendix p. 655) taking the form of a lease and not a sale was that the provisions of the Act of Congress of March 3, 1887, prohibited the holding by foreigners of real estate in the territory of the United States. There is evidence in the Directors' Minute Book that the question of compliance with the Alien laws of the United States was before the Board on various occasions. The Board were advised by Mr. Newton Crane, an American member of the English Bar practising in London, and also by Mr. Hawkins, a lawyer practising at El Paso. These gentlemen did not agree. Mr. Newton Crane thought a lease was sufficient and would fufil the requirements of the American law. Mr. Hawkins thought not, and advised the formation of a company in another State of the Union which should hold the stock of the (American) Rio Grande Dam Company, the stock of this new Company being itself held by the (English) Rio Grande Land Company. A West Virginia Company was in due course incorporated (see penultimate recital in the agreement of May 4, 1900, in Annex 7). No question was ever raised by the United States Government as to the legality of the English Company holding the interests of the American Company in the Elephant Butte enterprise. A few documents relating to this question are in the possession of the British Agent and can be produced if required. The diplomatic correspondence between the British and United States Governments printed in the Appendix to the Answer of the United States Government is not quite complete. The case was first brought to the notice of the United States Government in December, 1904, (see Annex 13). In November, 1905, the Secretary of State, Mr. Root, transmitted an important memorandum to the British Ambassador at Washington giving a summary of the matter as viewed by the United States Government (Annex 14).. Mr. Root's memorandum implies that it was merely the existence of the scheme for the construction of a dam at El Paso which led some of the residents of that district to promote a scheme for the construction of a dam at Elephant Butte, 120 miles further up the stream. A letter from Mr. Hart of the "El Paso Times," written on April 30, 1894, is printed in Annex 15, which shows that the impression at El Paso at that date was that the scheme for the international dam at El Paso which was to be constructed at the expense of the United States Government would never materialise. The last words of Mr. Root's memorandum are to the effect that the litigation is still pending. The second document in Annex 15 is a letter from the Attorney General of the United States to Mr. Rodey, dated Oct. 8, 1903, which was sent to the Foreign Office in 1905 by the representative of the Rio Grande Company, showing that, in Mr. Knox's opinion, the litigation was even at that date at an end. The Appendix to the Answer of the United States contains at p. 521 a letter from the Director of the Geological Survey to the Secretary of the Interior with regard to the Company's Elephant Butte Dam enterprise. The refutation of these statements by Mr. Campbell, the engineer of the Company, is printed as Annex 16. 2. Agreements between the Rio Grande Land Co. and the Rio Grande Dam Co.: (a.) March 27, 1896 (b.) May 30, 1896 ... ... 3. Letter from the Companies Registration Office of Oct. 10, 1923 ... ... (a.) Resolution for winding up, April 20, 1900 4. Printed letter from the Companies Registration Office, ... 16 ... ... 6.-(a.) Appointment of Dr. Boyd as Receiver for the debenture holders, May 3, 1900 (b.) Appointment of Dr. Boyd and Sir A. Lowes Dickinson ... 7. Copy of Minutes of extraordinary general meeting, May 8. Statement of Receipts and payments filed by the Receiver, August 28, 1911 ... ... 9. Statement of the accounts of the Rio Grande Company up to April 20, 1900 10. Letter, Mr. Roberts to Dr. Boyd, June 29, 1896 11. Affidavit of P. E. Kern; List of "A" and "B" contracts, March 30, 1894 12. Extracts from reports of the Company's engineer (Campbell), 1897-1898 ... ... 13. Sir M. Durand's despatch to the Foreign Office, December 14. Sir M. Durand's despatch to the Foreign Office, November 11, 1905 (enclosing Mr. Root's memorandum) 15.-(a.) Letter from the Editor and Proprietor of the "El (b.) Letter from the Attorney General of the United 16. Letter by Mr. Campbell, Feb. 26, 1907, refuting Mr. Walcott's letter of Dec. 1, 1906 53 55 57 60 64 64 17. Letter to the British Agent from Messrs. Price, Water house & Co., dated October 29, 1923 |