El Paso daily herald. (El Paso, Tex.) 1881-1901, 1897-07-03
Judge Bantz Decides Against
Its Perpetuation.
FULL DECISION GIVEN.
The Judge Holds That the Rio Grande
in New Mexico is Not an Interna-
tiOnal Stream; That the River is
Not Navigable and Decides Other
Important POints.-Case Will be
Appealed.
Special Telegram to the Herald.

; Special Telegram to the Herald.
SILVER CITY, June 3.-Judge Bant
today dissolved the injunction sui
) against the Rio Grande Dam & Irriga
tiOn company, which injunction wa:
sought to prevent the building of ,
dam at Elephant Butte. The cour
held that there is nothing in a,y treaty
with Mexico which prevents the diver
sion of waters where the stream lies
wholly in the United States. The
court also holds that the acts of con
gress under which this suit was brought
do not apply to non-navigable streams
in arid America, even though the
same stream becomes navigable at a
point lower down. The court alst
holds that the Rio Grande is not g
navigable stream for several hundred
miles below Ell Paso and that congres:
has never repeal the right to divert
waters in arid America.
In the District Court, Third Judicial
District. United Sta es of Ameri.
ca versus The Rio Grande Dam &
| Irrig alton company ct al. No. 14O
| Inj junction.
| OPINION OF THE COURT.
! The issues briefly stated are these:
| The amended bill charges that de-
fendant is ~ about to Obstruct the Rio
| Grande, pavigable river. and ~ OBJ
struct the flow of waters and interfere
with the navigable capacity of a river.
| That such distractions would be in vio-
lation of the acts Of congress of 1890
and 1892, and contrary to the treaty
with Mexico.
A preliminary I'M JUNCTION was grant
ed, and the defendant ordered to show
cause why it should not be continued.
TIE defendant filed its answer denying
that the RIO Grande is a ,navigable riv-
err: and also filed special pleas justify
ing under right-of-way for reservoir
and canals secured under the acts of
| 1901, and Certain territorial laws.
The issues arise on the motion to dis
solve the Injunction and upon the suf
ticiency of the special pleas.
1t may be stated at the outset that
this is not contest between private
persons as to superior right by prior
appropriation. When that question
ar.ses 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 between Mexico and
the United States, and under
treaty between these republics the
Rio Grande along such boundary is
made free and common to the vessels
and citizens of both countries. There
is no guaranty by either repub bic tnat
the Rio Graude is or will continue to
be navigable, but each party stipulat-
ed that it would not construct any
work 'beiow the intersection of the 81
degrees AZ minutes 30 seconds parable:
of la altitude 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 United States
surrendered any proprietary right to
the adjacent soil or to any incident
thereof. Indeed it is expressly stipu-
lated that the treaty shall not impair
the territorial rights of either repub-
lie within its established limits.''
The legal effect would have been the
same had the reserving clause been
omitted, as under the proper rule of
| construction the free and unobstructed
passage is celed without prejudice to
other territorial rights. The contin-
ued enjoyment of other proprietary
pressly renOunced. Sattel law nations
273.
Toe territory of the United States
includes the lakes, seas and rivers
lying within its limits; hence, rivers
| flowing through it form part of its
domain and cannot be cons .dered as
| free to other countries any more than
| he adjacent lands. An exception to
| this general rule has been sometimes
claimed where the river flows from
| one state through the territory of
another, in favor of the right of pas
| sage to and from the inland state for
CONNER cia and other peaceful purpOs-
! es. While this exception has been
sometimes contested lex. CIR. by Spain,
over the Missi: i:sippi, Great Britain
| over the ST. Lawreuce, Holland over
| The Scheldt) it is best regarded as
an imperfect right subservient to the
convenience and safety of the state
effected. Wheaton International Law,
| ISS-2O5: Poison Law Nations 30.
1t therefore seems clear that
there is no duty created by
International law or by treaty which
requires that the waters collected
| along the RIO Grande and lying Who'll
ly within the United States shall be so
discharged d as to aid in the nav igation
of the Rio Grande along the Mexican
boundary, and the diversion of waters
lying wholly within the United States
is not violation of any treaty rights
secured to Mexico. If it were other
wise the secondary and dependent
right OF navigation would absorb the
superior and primary terr .tOrisl rights
OF the United States over its own do
main, and subject lands wholly within
the limits of Inis republic to the bur-
dens of servitude not expressed in
the treaty or implied from any rea-
sonabl iuterpre alton of its language.
This brings US to a consideration of
the question as to whether the Rio
lyrande is a naVipable river in New
Me xico and at the point known as Ele-
phant Butte within the meaning Of
the acts of congress of 1880 and 1892,
Counsel on each side of this case con-
cede that the court takes judicial no.
tlce of what are navigable rivers; but
for the enlightenment of the court in
this matter a great mass of documenta
ry Information has been submitted, in