El Paso daily herald. (El Paso, Tex.) 1881-1901, 1900-01-03

600 to 916, OCO, averaging 4lo ,UOU.
| az. That If 20 per cent is lost be
tween Preside and Rio Grande love
900 miles), the floods would raise the
river at Rio Grande city above Low
water mark, for time floods were pas
sing Ell Paso, a height varying from
to feet; the height of the raisereach
ing 2 feet during only four OF the tel
years.
| ~. II As per cent be lost between
| Ell Paso and Preside (the proportion
| of loss between San Marcial and E
| Paso) and 20 per cent between Presl'
do and Rio Grande city, the rise a.
Rio Grande city during the flood sea
son at Ell Psso would vary from to z .
feet; reaching 2 feet during only three
OF the ten years.
SIT will be observed" Judge Parker
continues, "that the above results show
contribution from floods passing Ell
Paso to the navigable capacity at Rio
Graude City to the extent of rise OIL
two feet during four of the ten years
mentioned, when 333 per cent Is de-
Quoted for loss between FL Psso ana
Preside, and during three years out
of the ten when 40 per cent Is so de-
Quoted. 1t is to be further observed
that no account is taken in above com
putations for variations in the height
OF floods at Ell Paso. II these varia-
tiOns continue from Ell Paso to Rio
Grande City, the beneficial effect On
navigability would be lessened, owing
to correspond :, irregularity In the
height of the rise at the latter point.
"How reliable such results may be,
cannot be determined from the
evidence. Whether the loss Is less or
greater between the points named is
unknown. There is some evidence in
the case tending to disprove the cor
rectness of such results; for example,
the Testimony of Daily that in 1897 the
flood only lasted eight or ten days at
Preside lin Judge Parker's table the
duration of the flood at Ell Paso is
given ss IS daysl; and the testimony
of Turpin that .the same flood made
no appreciable change in the river at
Laredo this flood was exceeded in size
by that of 1891 alone and the affidavit
of Kelly [owner Of the steamer Bessie
that they have had no floods from the
upper Rio Graude in recent years. On
the whole, l am unable to say to how
much credit the results of such COM
putations are entitled in arriving at
the ultimate fact in question in this
case.
There is no direct testimony show
ing that any given quantity of water
in she Rio Grsnde passing Ell Paso
reaches Rio Grande City and there &C
complishes any certain effect upon the
navigability of the stream.
THAT the wat.rs of the Rio Grade
passing Ell Psso occasionally in seasons
of high and protracted floods reach Rio
Grande City in considerable quantities
seems probable. but that they reach
that point in quantities sufficient and
in such form as to subs tantially add to
the navigable capacity of the stream
Ia not satisfactorily established by
the evidence, nor can such a conclu-
sion be satisfactorily deduced there
from. 1 therefore find that the in
tended acts of the defendants in the
construction of a dam or dams, or
reservoir, and in aopropriating the
waters of the Rio Grande, will not
diminish the navigabil-
present navigabiltty.
"Let a decree be prepared and
entered dismissing the bill of COM
plant herein"
The decision is dated at Albuquer-
que, Jan. l, 1900.
The government had rested its whole
case Or the theory that the diminution
Of water and decrease of nsvigability
below Rio Grande City was due to the
diversion of water for irrigation in
Colorado. Yet Judge Parker nowhere
even alludes to this contention, reject
ing it by implication merely. This is
about the severest form of treatment
to which the governments position
could have been subjected.
The decision throughout bears evil
1ence of careful, laborious, exhaustive
study of the case by Judge Parker,
while the calm, dispassiona ate tone of
The findings lends additional weight to
the argument and the conclusion.
WHAT NEXT.
The government will appeal to the
supreme court of New Mex leo, and in
with an agreement by Op-
posing counsel the appeal will be heard
It the term of the supreme court to be
leld this month. That court is prac-
ically certain to affirm Judge Parker's
lecision. Then it will lie, with the
to drop the case or appeal
gain to the supreme court of the
United States. The Elephant Butte
company proposes to draft
md circulate petitions for sign allure by
he people to be benefited by the con-
tructlon of the proposed dam, urging
he government to desist from further
of this suit and permit the
company to resume work. It is also
to appeal to the sympathies
md interests of western congressman
md senators to use their in fiuence with |
he president and the attorney general
n the same direction.
Warner P. Sutton, of counsel for the |
is quoted as declaring |
hat the government Twill make it q |