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

and safety of the state affected. Wheat
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 wholly within the United
States shall be so discharged as to aid
in the navigation of the Rio Grande
along the Mexican boundary; and the
diversion of waters lying wholly within
the United States is not a VIC alton of
any treaty rights secured to Mexico.
If it were otherwise the secondary and
dependent right OF navigation would
absorb the superior and primary terri
tOrial rights of the United States over
its own domain, and subject lands
wholly within the limits of this repub-
lie to the burdens of servitude not eX-
pressed in the ire atty or inn oiled from
any reasonable interpretation of its
language.
This brings US to consideration of
the question as to whether the Rio
Grande is a navigable river in New
Mexico and at the point known as
Elephant Butte within the mean
ing of the acts of con gress of 1890 and
1892.
Counsel on each side of this case con-
cede that the court takes judicial no
tice 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
the shape of maps. reports of exploring
aud surveying expeditions made under
the war and interior departments of the
government, and also reports of officers
specially detailed to investigate the
feasibility of utilizing the river fo-
navigation, and its capabilities for res
ervo!rs and irrigation.
1t will be observed that in the origi-
nal bill it was not charged that the
Rio Grande is navigable river above
Ell Paso but charged that the river is
navigable below Ell Paso and tn at de-
fendants' proposed dam OPS miles
above)will destroy the river as stream,
diminish the volume of water below aud
materially affect its navigability. The
amended bill charges that the river is
navlgable up as far AS Roma, a short
distance above the Gulf of Mexico, and
is susceptible of navigation and has
been navigated from Roma to point
$50 miles below Ell Paso preside del
Norte?) where the falls and rapids in
terrupt navigation, and that the river
above the falls is susceptible of naviga-
ton up to La Joya, above Elephant
Butte; the bill closes this part with an
allegation that the river is navigable
and susc eptib of being navigated as
aforesaid for carrying on commerce
between the territory of New Mexico,
the state of Texas and the republic of
Mexico. t..
The course of the Rio Grande in New
Mexico is through rocky canons and
sandy valleys: in the valleys it spreads
out, shallow and between low banks:
over fine, light, sandy soil of great
depth; bars are continually forming,
passing away and reforming, and the
quicksands in the bed of the stream
and along its margin are perilOus to
life. The fall is from four to fifty
two feet to the mile and the changes
in its course are rapid, continual and
often radical; the valley is SCARED
with low ravines made by its progress
in fferent places. In all the period
of time only two instances were shown
where the river was actually utilized
for the conveyance of merchandise,
and these were tim beers: one of these
instances occurred in 1858 or 1859 when
a raft was sent down from Canutillo to
Ell Paso, a distance of II miles: and the
other recently when some telegraph
''short distance 1.-The water of the
stream especially in central and south
ern New Mexico is heavily loaded with
silt. The channel of the river through
these valleys is usually choked with
sand and in times of low water the
stream divides into number of minor
channels: and apparently large per-
censage o the water is lost in these
great deposits of fine material" Q2|
Annual Rept. Geol. Sur. 2O4.) s'From
Bern8lillo n. M to Fort Hancock
[ Tex the Rio Grande is in the highest
degree spasmodic, with immense Hoods
during few weeks of the year and a
small stream during the remainder of
it," 40 Annual Rept. Geol. Sur. %. 80.
From personal observation, know
that these seasons of flood and drouth
lin Rio Grande) were of about the same
c character 30 years ago" (Maj. Arson
Mills, 10 U S. Cav. Rept. Spec Com.
Sen. Vols. and 1 p. 39.) But what is
OF more Importance we have reports of
officials upon the exploration of the |
river made under directions of the gov
eminent for the special purpose of con-
sideriDg its navigability. From these
it appears: The stream is not now
and it cannot be made SO by |
curate survey and hydrometric obser- |
vations would be necessary to deter |
mine positively whether an improve
ment by locks and dams could be made |
or not, but the heavy fall of the river,
the lOwness of it's banks and the small |
discharge, do not encourage the belief |
that such improvement would be finan-
cially. even If physically, practicable.
Certainly there IN no public interest
which would justify the expenditure of
the many millions of dollars which
such an improvement would involve.
The irri CATION of the valley is matter
N which the inhabitants are now Deep
y interested, while the possible navl-
alton of the river receives little or no
attention from them. In my
Judgement the stream is not worthy OF
by the general govern
nent." (Rep't of 0. II. Ernst, Mai
If Engn'rs to Secretary of War, 1881
A gain, 81 consider the construction
lot only of an open river channel. but
If any navigable channel to be imprac-
icable. = During the greater
BART of the year, when the river is low,
ne discharge would be insufficient to
upply any pavigable channel, except I
perhaps narrow canal with locks, tue
of which on a foundation :