El Paso daily herald. (El Paso, Tex.) 1881-1901, 1899-12-23
THE BIG DAM CASE
Judge Parker Felt To Be In a
Predicament
RIO GRANDE NAVIGABLE
According To the Supreme Court,
Yet Not Ndvl0dble In Fact, And
Much Rests On His Decision.

Much Rests On Ills Decision.
Special Correspondence of the HERALD.
LAS CRUCES, N. M, Dec. 21.-At 3
O'Clock this afternoon Judge Burch
concluded his closing argument for
the government. OF course everybody
had hoped that Judge Parker might
be prepared to announce his conclusion
on the spot, yet 1t was hardly expected
that he would do 80. When Judge
Burch concluded. Judge Parker said:
81 assume that 1t IL desired by all
ter decided as promptly as possible
Judge Fall: cit ISL
The Court: 81 have left now about
q week before the supreme court meets.
I presume that within day or two I
can decide this case as we'll IS I shall
be able to do in the time available"
And 30 there is nothing to do but
wait.
What will the decision be?
That's the question everybody asks
everybody else. It is not an easy task
which Judge Parker has to perform.
The supreme court has declared the
river navigable. It has charged this
court to determine the question of fact
whether the impounding of the waters
of the Rio Grande at Elephant Butte
will impair the navigability, and If So
to restrain the dam company to the ex-
tent that 1t will so interfere. In view
of the conflicting testimony and the un-
certain features Of the case, 1t is not so
easy to obey the Instructions of the
supreme court as it might seem at first
glance.
That there is practically no naviga-
bility at present ia abundantly proved
as q matter of fact. But as q matter
of law there is navigability,
because the United States su-
preme court has said SO, and Judge
any water from the upper Rio Grande
reach Rio Grande City, some 1900
miles below Ell Paso? If SO, how
much? And is the fact, il it is a fact,
that email part of the water does
reach there, sufficient ground for q
sweeping Injunction that destroys all
hope of q storage reservoir for the
Mesilla and Ell Psso valleys for nobody
knows how many years to come?
Would the storage of tie waters at
Elephant Butte impair "present navi-
that would necessitate, even under the
iron clad mandate of the supreme
court, the crushing blow which q de-
cision adverse to the dam company
will strike at the agricultural interests
of the fertile valley above and below
Ell Paso?
The government rests it's whole case
on the contention that the condition of
the lower Rio Grande as to navigabil-
ity (the governments own Witnesses
testifying that navigation is now q
''failure'0 is due to the diversion of
water in Colorado In the last dozen
years for irrigation. That is to say,
Irrigation in Colorado has already
made the river unnavigable, and navi-
gability, In this view, cannot be re-
stored without stopping irrigation in
Colorado. Yet the government pro-
poses to stop the building of the Ele-
plant Butte reservoir If it is found
that the impounding of the waters
up here will impair the navigability
which the supreme court says still ex-
lists, but which the governments testi-
mony saysdoes not exist, and the govern
ment's attorneys say has been killed by
irrigation away up In Colorado 1000
miles above the highest point of navi-
yability.
It Ia very awkward predicament for |
The government, and a very trying po-
,itIon for the court which is called |
Upon to harmonic law and Justice in |
such a state of things.
JUDGE BURCH'S ARGUMENT.
Judge Burch in opening referred to |
jhe case as one that promised to be |
in later times. He COM