El Paso daily herald. (El Paso, Tex.) 1881-1901, 1897-07-03

limited that it will only
accommodate but few persons, it can
not be considered navigable stream
for any pul pose. It must be so situ-
ated, and have such length and capac-
isy, as will enable it to accommodate
the public generally as a means of
transportation. And in the same
case Lord J. said: 1t must be ''sus-
ceptible of beneficial use to the public;"
practical utility and benefit to the pub
lie as a highway" And of the stream
then in question he says, SIT is rot
ouly not adapted to public use, but the
public have made no attempt to use it
for any purpose. Haines VS.. Hall
(Oregon) L. r. a. 600. The supreme
court of Alabama say: 'In determin-
should be made as to the following
points: Whether it be fitted for valu-
able foatage; whether the public or
only few individuals are interested
in transportation: whether any great
pu bile interests are involved in the use
of it for transportation; whether the
periods OF its capacity for
to maze it susceptible of use bene-
50 Ala. 57S; Peters vs. N. o. M. & G. r.
Co. SO Ala. 52S. Indeed in the letter
of inquiry by the Hon. Richard Olney,
secretary of state, in respect to the
facts as to the navigability of the Rio
Grande in Interstate commerce, among
other essential qualities he says: "It
should be remem bered that q mere
capacity to float log or boat will not
alone make river navigable. The
question is whether the river can be
used protitably for merchandise. 1
have been informed that wood is some
times brought down the river to Cuidad
JuareZ in fatbOats and that logs are
RATED or foated down from the tim
bered lands on the upper river for COM
mercial purposes" DIETER Jan. 4,
1919 The secretary of state seems to
have been misinformed as to such use
for commerce. This letter was ad-
dressed to Col. Arson Mills, at
whose request, it appears, that
applications for right-of-way for irriga-
tion by the use of the waters of the Rio
Grande and all of its tributaries were
suspended throughout New Mexico and
Colorado. The answer of Col. Mills
deals almost wholly with the river in
ternat!Onally; the river in its relations
to Interstate commerce is dismissed by
him with an instance of the floating of
a raft of logs IN 1859 from a point Is
miles above FL Paso and the qualifying
remark, 1t would now hardly be prac-
ticable to so" Letter Jan. Z, 1897
The fact that dams have been erect
ed across the river at Ell PasO and 9TH
err places from the earliest times, and
the fact that no use has been made of
the stream for navigation or foatage,
are facts which though they do not in
themselves determine It's susceptibility
of navigation, are nevertheless entitled
to great weight. They are facts clear
ly Indicating the common Judgment
and knowledge of the people who have
had the longest and the most intimate
acquaintance with The capabilities OF
the river, a knowledge founded on
their own experience and that of their
ancestors.
The Rio Grande is not navigable
river in New Mexico.
The next point is that even though
the Rio Grande be not ravigable In
New Mexico, still the contemplated
obstruction will diminish the waters
and the reby impair the navigability OF
the river at points several hundred
miles below near its mouth at the gulf
and that therefore it is an obstruction
within the meaning of the act Of 1880. |
Counse for defendant raise the POI
that the undlsputed fact is that dam |
has been maintained for near two hun |
dred years across the river at z! Paso !