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

must be generally and commonly USE
full to some trade or agriculture. See
also Morrison VS.. Coleman ALA l..
IL. A. 334. OF course it need not be
perennially, but the seasons of naviga-
blilty must occur regularly and be of
sufficient duration and character to
SD bserve useful public purpose for
commercial intercourse. While the
capacity of a stream for floating logs, or
even of thin boards may be consi6 cred,
yet the essential quality is that the
capacity should be such as to subserve
a useful public purpose. Angel Water
Courses 535. In recent case the SUI
preme court of Oregon say, per Thayer
e. j. "Whether the Gre elk in question
is pavlgable or not for the purposes for
which appellant used it depends upon
its capacity in natural state to float
logs and timber, and whether it's use
for that purpose will be an advantage
to the public. If its location is such
and its length and capacity so limited
bat it will only accommodate but q
few persons, it cannot be considered a
navlgable stream for any purpose. 1t
must be so situated, and have such
length and capacity, as will ens BILE it
to accommodate the public generally as
means of transportation And in the
same case Lord J. said: 1t must be
Susceptible of beneficial use to the
public be capable of such fioatage
as is of practical utility and benefit to
the public as a highway" And of the
stream then in question he says: st
is not only not adapted to public use,
but the public have made no attempt
to use it for any purpose" Haines VS..
Hall (Oregon) 3 L. r. A. 500. The SUI
preme court of Alabama says: SIN de-
termtning the character of a stream,
inquiry should be made as to the fol-
lowing points: whether it be fitted for
valuable hoatsge; whether the public
or only few individuals are interested
in transportation: whether any great
public interests are involved in the use
OF 1t for transportation; whether the
periods of it's capacity for foatage are
sufficiently long to make it susceptible
OF use beneficially to the public. Roads
vs.. OILS, 33 Ala. SIS; Peters VS.. N. o.
M. & G. r. Co., 56 Ala. 523 Indeed in
the letter of inquiry by the Hon. Rich
ard Olney, secretary of the state, in
respect to the facts as to navigability
OF the Rio Grande in interstate COM
merce, among other essential qualities
he says: 1T should be remem bered
that mere capacity to float log or q
boat will not alone make river navi-
gable. The question is whether the
river can be used proftably for mer-
chandise. l have been informed that
wood is sometimes brought down the
river to Cuidad Juarez in fiatboats and
that logs are RATED or fioated down
from the timbered lands on the upper
river for commercial purposes (Let-
ter Jan. 4, 1870. The secretary of state
seems to have been misinformed as to
such use for commerce. This letter
was addressed to Col. Arson Mills, at
whose request it appears, that applica-
lions for right-of-way for irrigation by
the use of waters of the Rio Grande
and all OF its tributaries were suspend
ed throu ghout New Mexico and Colo
RADIO. The answer of Col. Mills deals
almost wholly with the river interna-
tional'y, the river liz its relation to in
terstate commerce is dismissed by him
with an instance of the floating of a
raft of logs in 1859 from point IS
miles above Ell Paso and the quslify-
ing remark sit would now hardly be
practicable to do 500 Letter Jan. Z,
1917
The fact that dams have been erect
ed across the river at Ell Paso and 9TH
er places from the earliest times, aud
the fact that no use has been made of
the stream for navigation or t1oatage,
are facts which though they do not in
themselves determine its 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 most intimate ac-
quaintance with the capabilities of the
rivers knowledge founded on their own
experience and that of their ances-
tors.
The Rio Grande is not nsvigable
river in New Mexico
The next point is that even though
the Rio Grande be not navigable in
New Mexico, still the contemplated
obstruction will diminish the waters
and thereby impair the navigability of
the river at points several hundred
miles below near it's mouth at the gulf
and that therefore it is an obstruction
within the meaning of the act of 1890.
Counsel for defendant raise the point
that the undisputed fact is that q dam
has been maintained for nearly.t
dred years across the river at FL Paso
by which the waters of the Rio Grande
are diverted into irrigating bitches in
the city OF Ell Paso and upon Mexican
SOIL; and that In a proceeding in equity
a chancellor cannot close his eyes to
the fact that apparently some other
purpose than navigation is the real OBJ
Ject OF this proceeding. If, however,
L cannot agree that the govern
ment becomes pOwerless to resist it
merely because others are engaged in
like enterprises.
We will therefore consider the cues
ton whether the contemplated OBJ
struction at Elephant Butte will be an
illegal interference with the naviga.
bility of the river several hundred
miles below toward the gulf. The act
Of 1890, Il Sup. r. S. p, SO3) prohibits
the creation of Instructions mot
q ffirmatively authorized by law" to the
''navigable capacity"o any waters of
the United States. Its terms are more
comprehensive than the act of July ID,
1893, prohibiting the erection of dams,
ETC., etc, in any navigable river with
,ut the permission of the secretary of
var. 1t is cOntented that under the
.ct OF 1890 an obstruction, no matter
where placed, is unlawful which diverts
waters from flowing into .nav1gable
liver and thereby effects the navlEabie
OF such q river. But a careful
eadlng of the act will not I think
ustain the contention. The act ap-