El Paso daily herald. (El Paso, Tex.) 1881-1901, 1899-12-20
Must Bow To Law In De-
Gliding the Dam
Case.
SAYS MR.. CHILDERS,
But Judge Fall Contends
That Evidence Not Pre-
sumption Is De-
sired.
Special-Dispatch to the HERALD.

Spectal.Dispatch to the HERALD.
LAS CRUCES, N. M, Dec. 2O.-This
mornings session was consumed in ar
gument by W. D. Childers, United
States attorney for the. government
and Judge A. B. Fall, the counsel for
the defence. Mr.. Childers maintain
ed that the court could not consider
questions of public policy but must de-
eide the case of law as prepared by the
supreme court. He maintained that
the supreme court has declared
the Rio Grande navigable, and
the evidence ! is shown that
the upper Rio Grande contributed to
the nsvigability. It has been shown
that the water pa sses Ell Paso and
reaches the mouth of the Conchos
river. It is to be presume that itgces
down to ths navigsble part of the
river. He maintained that the cause
of the insu sufEcient water for navigation
was by diversion of the waters in Colo
rado for irrigation. Mr.. Childers sub
mitted long statement of facts com
prising twenty-one counts.
Judge A. B. Fall, counsel for the
defense, began his argument aud will
continue this afternoon. He main
tanned that the supreme court has
sent the case back for evidence, n,t for
presumption, that the burden of proof
rests on the government to hear this
case by expert testimony,
and that the burden of the proof
could not be shifted. He
demanded why the court has not of.
fered in evidence record of data
gathered by the water boundary COM
mission, from Ell Paso down.
After Judge Fall concludes, Judge
Burch will close the argument for the
government and the case will be fin.
ished. The argument will probably
not be concluded before tomorrow
noon.
TUESDAYS PROCEEDINGS
Judge Burch finished bis opening
speech for the prosecu tiou Tuesday
and w. A. Hawkins, at
torney for the defense, consumed the
afternoon in presenting his side of the
case. he did not mince matters. He
denounced Brigadier General Anson
Mills and the men and Influences that
are responsible for the institution and
persistent prosecution of this suit, and
charged them with con spiracy.
Judge Burch elaborated the points
stated in the report Of Tuesday after
noon's session of court. Judee Parker,
during the argument, asked several
questions designed to elucidate the
Iacts. One question that he asked was
assuming that water does
,ravel from Ell Paso to the point Of
and contribute somewhat to
there is any evidence in
he case from which the court can
determine the extsnt of that contribu-
ion.
Judge Burch replied that the tables
II overflow and the data of measure
nents by Mr.. Follett aud others cup
lied the Information, for such calcu-
ations. The court, however, didn't
eem to be fully satisfied with this.
The court thought the tables did not
ccount for losses of water between Ell
'aso and Rio Grande City.
INTERROGATING JUDGE BURCH.
"Suppose," asked Judge Parker,
I agree with you that these waters do
ontribute to the navigability of this
tream to some extent, and undertake
D make decree and enjoin the de-
endants from interfering with the
'ater to that extent, where is the
1easure or rule that 1 can apply to the
efendauts in this c8se9n
Judge Burch replied that there was
be water passing Ell Psso, there was
he channel, there was the fact that
'ater runs down hill, and there were
he measurements of the channel at
he mouth of the Conchos and near
Later the court asked:
"Then your position is that no inter