Santa Fe new Mexican. [volume] (Santa Fe, N.M.) 1898-1951, 1899-06-16
THE Dam DECISION
Findings Of the United States Su-
preme Court on the Navigability
of the Rio Grande.
NOT NAYIGADLE In new MEXICO
Lower Court Must Inquire Whether a Dam
at Elephant Butte Would Inter
fere With Navigation Below
Ell Paso.

preme court IN the case OF the united
States against the Rio Grande Dam and
Irrigation Company is a document OF
twelve printed pages. The allegation
upon. which the application for injunc-
ton was based was that the Rio Grande
is navigable not only along it's lower
course, but also from Ell Paso to La
Joya, about 100 miles above Elephant
Butte. 1t was alleged that the proposed
flow of water as to seriously obstruct
the navigable capacity of the said river
throughout its entire course from said
point Of Elephant Butte to it's mouth"
The district court decided that the river
was not navigable in New Mexico, and
dissolved the injunction.
The compliments appealed to the SUI
preme court of the territory, which, on
January 5, 1898, affirmed the decree.
From this aftirmance the United States
appealed to the United States supreme
court, which handed down it's opinion
May %, 1899.
The United States supreme court
holds that the only matter of fact
which the lower court attempted to de-
termine was that the Rio Grande was
not navigable within the limits Of the
Territory of New Mexico, and, so deter
mining, it adjudged and decreed that
the compliments bill was without
equity" The supreme court says:
THAT the Rio Grande, speaking gen.
orally, is a navigable river is clearly
shown by affidavits. 1t is also a matter
of common knowledge, and, therefore,
the courts may properly take judicial
notice of the fact. But how many
know how far up the stream n~avigabil-
ity extends? Can it be said to be a mat
ter of general knowledge, or one that
ought to be generally known? If not,
it should be determined by evidence.
Examining the affidavits and other evil
dence introduced in this case, it is clear
to us that the Rio Grande is not navi-
gable within the limits Of the Territory
of New Mexico. The mere fact that
logs, poles and RATS are floated down a
stream occasionally and in times of
high water does not make it a navigable
river. Obviously, the Rio Grande with
in the limits Of New Mexico is not a
stream over which in it's ordinary con-
dition trade and travel can be conduct
ed in the customary modes of trade and
travel by water. Its use for any pur-
poses Of transportation has been and
is exceptional, and only in times OF
temporary high water. The ordinary
flow of water Is insufficient.
Neither Is it necessary to consider
the treaty stipulations between thi:
country and Mexico. 1t is debated by
counsel whether the construction of {
dam at the place named in New Mexico
a place wholly within the territorial
Jurisdiction of the United States, Is
violation of any of the treaty stipula'
lions above referred to-they being pri,
marily at least, limited to that portion
of the river which forms the boundary
line between the two nations; and alst
whether the fact that the Rio Grandt
is partially within the limits of Mexi
co, would give that nation, under thu
rules of international law, any right tt
complain of the total appropriation o.
it's waters for legitimate uses Of thu
people of the United States. Sucf
questions might under some circum
stances be interesting and important
but herein the Rio Grande. so far al
it is a navigable stream, lies as mucl
J within the territory of the United
States as in that Of Mexico, it being
where navigable the boundary between
the two nations, and the middle of tn
channel being the dividing line. Now
the obligation of the United States t
preserve for their own citizens the nav
liability of it's navigable waters, is Ger
tainly as great as any arising by trea
ty or international lew to other nation
or their citizens, and If the propose
dam and appropriation of the water
Of the Rio Grande constitute a breac
of treaty obligations or of i%nternations
, duty to Mexico, they also constitute a
. equal injury and wrong to the people {
the United States. We may, therefore
properly limit our inquiry to the effet
of the proposed dam and appropriate
Of waters upon the navigability Of tn
Rio Grande, and, in case such propose
9 action tends to destroy such navigs