El Paso daily herald. (El Paso, Tex.) 1881-1901, 1897-11-05

constitution in respect to regulatin,
commerce., but solely by virtue of it
admiralty and maritime power. Tn
English rule was appropriate enough
until the application of steam power t.
navigation opened the great rivers t.
commerce. ~ Howard. 1907
Considering the discussion in con
gress, the reports OF committees, ant
the la bors and reports of t1icials in the
interior and war departments made
under coz gres siOnal din ectiOpS, 1t seems
quite manifest that the purpose by the
federal gOverum to hold and further
redeem th great arid region had be
come the recognized policy and meas
ure of the highest public Importance
and necessity. 1t would seem that a,
first it was the design to establish and
maintain an elaborate system of lrrlgd-
ton at public expense, but the immense
cost of such an enterprise seems tC
have induced it's abandonment, tenn
porarily at least, and in its stead an
other system has been provided by ir-
rigation at private cost. TIE system
may be incomplete in many of its de-
| tails, but srch as it is reservoir sites
have been located, surveyed and estAb-
lisbed along the streams, navigable
and non-navig able, under the immedi-
ate direction of government officials
/
right to make private entries of others
under the supervision OF the secretary
| of the interior is also authorized.
| Ruins of extensive irrigation systems
scattered all over New Mexico and Ar
iona of a prehistoric people show that
conditions which have confronted the
present age were conditions encounter
ed in the remote past and apparently
overcome. The cultivation of the Rio
ira nd
| river is mentioned by the earliest OF
Spanish priests and explorers, and is es-
| tablished by authentic historical mem
orials extending back more than two
centuries, The law of prior appropri-
alton existed under the Mexican Re-
public at the time of the acquisition of
New Mexico, and one of the first acts
of this governments was to declare
that, 1.-THE laws heretofore in force
shall continue in force" Code pro-
claimed by Brig. Ger. Kearney, Sept
22nd, 1916. One of the first acts of the
local legislature 1882 after the organ
ization of the territory, provided that,
"All rivers and streams of water in
this territory formerly known as public
bitches or acequias are hereby estab-
lished and declared to be public bitches
or acequias." Com. Laws sec. g. In
1914 IL WIS pTONluou lutt oil VI tllc
Inhabitants of the territory of New
Mexico shall have the right to con-
siruct either private or common ace
quias and to take the water for said
acequias from wherever they can, with
the distinct understanding to pay the
owner through whose land said ace
quias have to pass just compensation
tor the land used" =. L. Sec. II. In
1887 an act was passed giving authOri-
ty TO corporations to construct reser-
voirs and canals, and for this purpose
to take and divert the water of any
stream, lake or spring provided it does
not interfere with prior appropriations.
Sessions Acts 1897. Chap. y. Other
acts bave been passed since upon the
-ubject in regard to the acquisition of
water rights. But this legislation is
not peculiar to New Mexico; it's gener
al characteristics are common through |
prior appropriation prevails. This
was the character af local legislation
which congress recognized, confirmed
and authorized by the various acts to
which reference has been made. AS
an indication of the scarcity of the |
supply and of the great value attached |
TO water one of the early acts of the |
legislature prohibited the making of
paths across the fields, as they were
to divert the flow of the |
water and injure acequias. The doc |
trine of prior appropriation has been |
the settled law of this territory by leg |
islation, custom and judicial decision. |
Indeed it is no figure of speech to say |
that agricultural and mining life of |
the whole country depends upon the use |
of the waters for irrigation, and if |
rights can be acquired in waters not |
navigable, none can have greater an
tiqulty and equity in their favor than |
those which have been acquired in the |
Rio Grande valley in New Mexico.
Therefore the diversion of such local |
waters is not violation of eny act of |
congress even though the navigable |
of the river at distance |
below may become thereby impaired. |
In conclusion it is therefore held
that the Rio Grande is not navigable |
river above Ell PasO and that the wa
tiers thereof are local waters under To- |
cal control, by the authority of con- |
gress, and that their interruption and |
diversion is not violation of any law
of the United States or any treaty. In |
this view of the case it appears that |
the bill as amended is without equity |
and the injunction heretofore granted |
should be dissolved. 1t will be unnec-
essary to decide whether the waters of
a navigable river may be diverted as
that issue does not arise in this case
AS the bill is without equity other
questions which have been raised need
not be considered.
GIDEON D. BANTz,
Judge and Chancellor.
RI0 GRANnN IRRIGATION