El Paso daily herald. (El Paso, Tex.) 1881-1901, 1897-11-05
UNITED STATES OF I
A MERICA.
VS..
The RIO GRANDE
DAM Il RIGATION
Co., ct al.
No. no.
Injunction.
OPINION OF THE CC

| OPINION OF THE COURT.
The issues briefly stated are these:
| The amended bill charges that the
defendant Is (D about to obstruct the
| Rio Grande, d navlgable river, and ~
obstruct the flow of waters and inter
fere with the navigable capacity of a
river. That such distractions would
BE- in violation of the acts of congress
of 1890 and 1892, and contrary to the
| treaty with Mexico.
"A preliminary I'M junction was grant
| ( d, and the defendant ordered to show
cause why it should not be continued.
The defendant filed its answer denying
| that the Rio Grande is navigabte
river; and also filed special pleas justi-
| tying under right-of-way for reservoir
and canals secured under the acts of
| 1891, and certain territorial laws.
| The issues arise on the motion to dis
solve the Injunction and upoa the suffi-
| cheney of the special pleas.
1t may be stated at the outset that
this is not a contest between private
persons as to superior right by prior
appropriation. When that question
| arises the courts will doubtless be en-
tirely competent to deal with it.
The Rio Grande from Ell PasO to the
Gulf Of Mexico is the boundary line be-
tween Mexico and the United States
and under treaty between those repub-
lies the Rio Grande along such bound
airy is maze free and common to the
vessels and citizens of both countries.
There is no guaranty by either repub-
lie that the Rio Grande is or will con-
tinue to be navigable, but each party
stipulated that IL would not construct
any work ''belOw the Intersection of
the 81 degree, II min. 30 sec. parallel
of latitud with the boundary line''
which may impede or interrupt in
whole or in part the exercise of the free
and common use OF the river. Neither
Mexico nor the Z nlted States surren-
dered any proprietary right to the adj
jacent SOIL or to any incident thereof.
Indeed it is expressly stipulated that
the treaty shall not Impair the terri
tcrial rights of either republic within
its established | mits.''
The legal effect would have been the
same had the reserving clause been
omitted, as under the proper rule of
construction the free ana unobstructed
passage is ceied without prejudice to
other territorial rights. The contin-
ued enjoyment of o her proprietary
lights must be presumed unless ex-
pressly renowned. Vattel Law Ma
lions sec 213.
The territory of the United States |
includes the lakes, seas and rivers |
lying within Its limits; hence rivers |
flowing through it form part of its do
main and cannot be cons dered as free
TO ether countries any more than the
ad iacent lands. An exception to this
general rule has been some times claim
ed where the river flows from one state
through the territory of another, in
favor of the right of passage to and
rom the inland state for commercial
aud other peaceful purposes. While
this exception has been sometimes con-
-ested (ex..gr. by Spain over the Mis-
;issippi, Great Britain over the St.
Lawrence, Holland over the Scheldt) it
$ atbest regarded as an imperfect
light subser3ient to the convenience