El Paso daily herald. (El Paso, Tex.) 1881-1901, 1899-12-23

PAID Tor by puOl1c 1uno6, Tor the very
purpose of guiding the government in
Another thing. Passing by living
experts and oral testimony, there was
in the hands of government counsel
the exhaustive report of Major Emory.
Judge Burch said in the course Of
argument that Ex-COnsul General
Warner p. Sutton, who for years had
lived in the lower Rio Grande country,
az bearing on the case. Judge Burch
brought a copy of the report along
| with him. He knew what it con tanned,
and that 1t carried a mass of data as
we'll calculated to enlighten the court
as If it had been prepared in antioipa-
| tion of this great '1eading' case and
for the express purpose of helping to
the correct solution of q great question
not only Of ''public policy" but q
question that involves the right of
diversion of water for irrigation in the
arid regions-a right as ancient and Is
securely founded on the rock of reason
as Ia the doctrine OF riparian rights;
the controlling consideration being
that the one right is evolved from one
state of facts, the other from another.
If there be, as there unquestionably is.
q clash between these rights west Of the
Mississippi, shall the agents OF the
department of justice resort to the
suppression OF Information that might
help an impartial court to remedy, or
ward off, the dire effect of this deplora
BILE clash of interests?
Fortunately, by mere accident, coun-
sci for defense discovered in the course
of the trial that the Emory report was
q mass of expert testimony bearing on
the case. Copies of the report are
rare, and counsel had never before
seen one. And so large extracts from
the Emory report went into evidence,
to show the facts as Major Emory found
them about 1856.
Judge Buroh went on to say that the
government had been pushed for time,
and the court did not need experts
anyhow to decide the question, under
the mandate of the United States SUI
preme court.
Judge Burch then started to answer
defendant counsel's question why the
records of the boundary commission
had not been introduced by the gov
ernment. But the court stated that
the question of the good faith of the
government or the boundary commits
sion was of no concern to him in de-
Gliding the case. Doubtless. But to
the public 1t ia a matter of interest,
and 1t Is not amiss to mention here
that printed report of the commits
sion, submitted to the secretary of
state July II. 1895. in appendix B, con-
tains this memorandum of action by
the commission, Sept. %, 1894.
1.-THE American commissioner pre-
sented the case known as ''Presidio del
Norte, " which was numbered seven (O
of the SERIES"
This was more than five years ago.
commissioner been to Preside del
Norte, the mouth of the Conchos,
since that time? Has the govern
ment no data whatever about the flow
of the river at that point?
Judge Burch argued that the upper
courses of the Rio Grande and of the
Conchos were such as to produce rivers
similar In general character and flow.
Artificial conditions had been intro
duced in the case of the Rio Grande by
the diversion of its waters in Colorado
for irrigation. Eliminate those artifi-
cial conditions and navigability below
Rio Graude City would be restored as
formerly. There had been no material
increase In diversion in northern New
Mexico In recent years. The volume
of water flowing down the Rio Grande
acre feet in 1890 to 1 600, 600 acre feet |
In 1891. The average was about 800, |
600 acre feet. The Elephant Butte |
reservoir would hold 253, 900 acre feet. |
The dam company, in it's prospectus, |
put down the valley lands irrigable |
from its reservoir at 23O, 900 acres aud /
the mesa lands at 800, 900 acres. A total |
Of $50, 900 acres. This, on the ratio |
used in Colorado, would require four |
full per year, besides the
quantity already divertedin Colorado,
in all about five reservoirs full |
per year.
He accused the defense of practically
garbling the facts regarding the lose
Of water from San Maroial
down.
Judge Fall in his argument had pre-
;ented figures to show that at "mo-
1erate" estimate the sands of the Rio
Irande between Ell Paso and the head
If navigation would swallow up twenty
Or thirty times as much water as the
highest floods passing Ell Paso. Judge
Burch came back at him with q batch
If figures to show that the flood waters
If 1891 would make stream $50 feet
vide, over IL feet deep, and 2, 500 miles
ong. OF course both computations are
rue, because figures won't lie.
Judge Buroh charged the defense
With bad faith or lack of intelligence
n furnishing only partial set of con-
lttions at the mouth of the Rio Grande
n regard to the river flow there. |
he also discussed again the water
able theory and insisted that it was
impossible for the Rio Grande sands to
wallow up such vast volumes of water
g pass FL Paso.
Taking up the fact that, while the
liver flow past Ell Psso this year was
My about one tenth the average, they
ad heavier floods than usual in the {
avigable part of the river below Rio
irande City, he said the court must I
distinguish between greater water
nd higher water. There had been
tgher water than usual down there {
his year, but it was in the nature of I