Supreme court of New Mexico, January term, 1900. The United States, appellant, v. The Rio Grande Dam and Irrigation Company et al., appellees. No. 879. Appeal from the Third judicial district court (as to question of fact).

The judge of the court of inquiry, after giving an exhaustive summary of the evidence submitted as to the question of fact, said:

I find that the intended acts of the defendants in the construction of a dam or dams, or a reservoir, and in appropriating the waters of the Rio Grande, will not substantially diminish the navigability of that stream within the limits of the present navigability.

The judges of the Territorial supreme court, in handing down their decision in the appeal against the findings of the lower court, state: We have examined the record, which is very voluminous and shows that the whole matter was thoroughly gone into, and we conclude that the facts as set forth in the findings of the learned judge below are sustained by the evidence, and we adopt same as the findings of this court.

The lower court in the finding of fact found that the proposed acts of the defendants will not substantially diminish the navigable capacity of the Rio Grande within the present limits of navigability. It seems clear to this court (the Territorial supreme court) that the appellant utterly failed to establish the fact that the proposed acts of the defendants would have the effect alleged upon the Rio Grande. * * *

It must follow as a natural consequence upon the finding that the proposed acts of the defendants will not impair the navigable capacity of the Rio Grande that the appeal should be dismissed. The only purpose of the appeal was to enjoin such acts of the defendants only so far as they might affect that result.

The proposition submitted in support of the application for a rehearing is a proposal not to produce evidence which already exists, but to create evidence not existing at the time of the trial or of the application. We think no sufficient diligence has been shown by the Government in this case in regard to this evidence. From the time of the issuing of the mandate by the Supreme Court of the United States remanding this case for investigation the Government took no steps whatever to furnish this evidence. It is not shown in the application why no such steps were taken.

Even during the trial of this case it must have been as much apparent to counsel for the Government that this testimony was required to support the appeal as it was after the finding of fact came from the trial judge. No mention of the same was made or any application presented to the court at that time. Again, it is not shown by this application that the result of any such proposed investigation would change the conclusion reached in this case. The Government simply asks that this case be reopened for the purpose of permitting it to make an experiment which it should have made before that time, and the result of which no one undertakes to foretell. * * We know of no rule, taking into account even the great pub

*

lic importance of this case, which would authorize this court or the court below to reopen the case under such circumstances. (See Rogers v. Marshall, etc.; Burrows . Ween was a case of the trial by the chancellor, as this was, and a similar application was made and denied.)

The refusal of the court (the lower court) to find the ultimate fact in this case in favor of the Government was, as we have before stated, in full accord with our view of the testimony in this case, and was therefore correct. We find no error in the record, and the decree of the lower court will be affirmed, and it is so ordered. WILLIAM J. MILLS, Chief Justice.

We concur.

JOHN R. McFIE, A. J.
J. W. CRUMPACKER, A. J.

LAWS OF THE UNITED STATES RELATING TO THE USE OF WATER FOR

IRRIGATION.

Prior to 1866 various States and Territories west of the Mississippi had enacted laws regulating the use of waters in the streams and lakes

for mining and agricultural purposes. All these laws were based on the theory that the first appropriator was entitled to the water, or so much as was necessary for his purposes. The following statutes of the United States directly affirm this State and Territorial legislation and encourage the use of the waters for such purposes, and especially for the purpose of irrigation:

SEC. 2339. Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purpose herein specified is acknowledged and confirmed; but whenever any person in the construction of any ditch or canal injures or damages the possessions of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage. (Rev. Stat., 429.)

SEC. 2340. All patents granted or preemption or homesteads allowed shall be subject to any vested and accrued water rights, or rights to ditches and reservoirs used in connection with such water rights, as may have been acquired under or recognized by the preceding section.

Nineteenth Statutes, 377 (Sup. 2d ed., 137, 1887).-" An act to provide for the sale of desert lands," etc., which, after providing in the first section a method by which said lands might be filed upon and water conducted upon the same for irrigation purposes, there follows this proviso:

Provided, however, That the right to the use of water by the person so conducting the same on or to any tract of desert land of 640 acres shall depend upon bona fide prior appropriation; and such right shall not exceed the amount of water actually appropriated and necessarily used for the purpose of irrigation and reclamation; and all surplus water over and above such actual appropriation and use, together with the water of all lakes, rivers. and other sources of water supply upon the public lands and not navigable, shall remain and be held free for the appropriation and use of the public for irrigation, mining, and manufacturing purposes, subject to existing rights.

This statute was specifically made applicable to California, Oregon, Washington, Idaho, Montana, Utah, Wyoming, Arizona, New Mexico, and Dakota. Afterwards, in 1891, it was made applicable to Colorado. (Sup. 2d ed., 941.)

Twenty-fifth Statutes, 526.-Congress in the sundry civil bill provided for the survey of reservoirs and canal sites, and for reserving from sale all such sites and all lands that would be watered by such reservoirs, and appropriated $100,000 therefor. (Also see Sup. 2d ed., 626.)

Twenty-fifth Statutes, 960.-Congress again provided in the sundry civil bill for investigating the extent to which the arid region of the United States can be redeemed by irrigation and the segregation of irrigable lands in such arid region, and for the selection of sites for reservoirs and other hydraulic works necessary for the storage and utilization of water for irrigation, and made an appropriation of $250,000 to pay the expenses.

26th Statute, 391.-Here Congress again, in the sundry civil bill, legislated with reference to the question of irrigation, and repealed the act providing for the withdrawal from entry of lands in the vicinity of reservoir sites, except that the reservoir sites themselves, theretofore located or selected, should remain segregated and reserved from entry or settlement, as provided by law, and reservoir sites thereafter located or selected on public lands should in like manner be reserved from the date of location or selection thereof.

26th Statute, 1101.-Congress restricted the reserves about reservoir sites to the land necessary for the reservoirs.

28th Statute, 422-423.-Appropriates desert lands to the various States and Territories on certain conditions of reclaiming the same by irrigation, the aggregate amount not exceeding 1,000,000 acres, being section 4 of the sundry civil bill of August 18, 1894.

28th Statute, 635–636.--This is an act authorizing the use of public lands for reservoirs and canals, giving 50 feet on either side of the

same.

29th Statute, 484.-An act providing for reservoirs on the public lands by persons or corporations engaged in breeding live stock, etc.; reservoirs not to exceed 160 acres.

29th Statute, 599.-All reserved reservoir sites are by this act thrown open to appropriation by individuals, corporations, and States, under the act of March 3, 1891, limited by the following proviso:

Provided, That the charge of water coming in whole or part from reservoir sites used or occupied under the provisions of this act shall always be subject to the control and regulations of the respective States and Territories in which such reservoirs are in whole or part situate.

SUPREME COURT DECISIONS.

The Supreme Court has also rendered a number of decisions upholding as valid and proper the local laws and customs regulating the appropriation of water in the arid States.

In Atchison v. Peterson (20 Wal., 507) the court decides that prior appropriation of running waters for mining purposes gives the better right to their use.

In Basey v. Gallagher (20 Wal., 670) the court quotes section 2339, Revised Statutes, and recognizes as valid the customary laws with respect to the use of water which has grown up among occupants of public lands under the peculiar necessities of their condition. It also declares the act (sec. 2339) is applicable to the use of water for irrigation. The water in this case was taken from Avalanche Creek, near its junction with the Missouri River, and thus formed a part of the upper waters of the Missouri, and theoretically contributed to the navigability of the river at points below where it was navigable. (See also Jennison v. Kirk, 98 U. S., 453; 25 L. Ed., 240.)

In Broder v. Natoma W. and M. Co. (101 U. S., 274; 25 L. Ed., 790) Justice Miller delivered the opinion of the Supreme Court in the following language:

We are of opinion that it is the established doctrine of this court that the rights of miners, who had taken possession of mines and worked and developed them, and the rights of persons who had constructed canals and ditches to be used in mining operations and for purposes of agricultural irrigation, in the region where such artificial use of the water was an absolute necessity, are rights which the Government had, by its conduct, recognized and encouraged and was bound to protect before the passage of the act of 1866, and that the section of the act which we have quoted was rather a voluntary recognition of a preexisting right of possession, constituting a valid claim to its continued use, than the estabment of a new one. This subject has so recently received our attention, and the grounds on which this construction rests are so well set forth in the following cases, that they will be relied on without further argument: Atchison v. Peterson, 20 Wall., 507 (87 U. S., XXII, 452); Forbes v. Gracey, 94 U. S., 762 (XXIV, 313), Jennison v. Kirk (ante, 240).

DECISIONS OF STATE COURTS.

In addition to the authorities above cited there are numerous State decisions, all to the same effect. These have been collected and grouped under the subtitle "Appropriation" on page 6 of a pamphlet entitled "A digest of the decisions of the supreme courts of the States and Territories of the arid region, of the United States circuit and Supreme Courts, in cases involving questions relative to the use and control of the water in that region." This pamphlet was compiled by D. W. Campbell, esq., of the United States Geological Survey, and revised and edited, under the direction of the Secretary of the Interior, by W. C. Pollock, esq., of the Assistant Attorney-General's Office for the Interior Department. It is a Government print of 1889.

34 VICTORIA STREET, WESTMINSTER, London, December 14, 1897.

Hon. ALVEY A. ADEE,
Acting Secretary, State Department,

Washington, D. C.

SIR: I beg to acknowledge the receipt of your favor of the 3d instant, and have to thank you for your courtesy in affording me the information therein contained.

I note with much satisfaction that the Attorney-General is endeavoring to obtain an early hearing of the Rio Grande appeal case, as the failure to accept as final the decision of the Territorial supreme court, dismissing the injunction against the company, is adding materially to the losses sustained by my company in consequence of your Government's attempt to invalidate the valuable rights and privileges conceded to the Rio Grande Dam and Irrigation Company by the Federal authorities under Mr. Cleveland's Administration; rights subsequently acquired by the Rio Grande Irrigation and Land Company, Limited. I may, perhaps, be permitted to state that the right (now controlled by my company) to impound and appropriate the flood waters of the Rio Grande for irrigation purposes having been legally acquired by the Rio Grande Dam and Irrigation Company under the Territorial laws of New Mexico and under the Federal statutes, rights formally approved by the late Secretary of the Interior, my board are wholly at a loss to understand the attempt now being made by the State Department to invalidate our rights and confiscate the valuable works on the Rio Grande carried out with friendly British capital.

I inclose copy of my speech, delivered, as chairman of the board of directors of the English company, at the statutory general meeting of the shareholders, held under the acts on the 3d instant, from which you will perceive that in explaining to the shareholders of the company the action of your Government I have endeavored to justify to the public our belief that your Government is not antagonistic to British capital, nor opposed to our plans for the colonization and development of the Rio Grande Valley.

Again thanking you for the courtesy of your reply,

I am, yours, respectfully,

W. J. ENGLEDUE,

Colonel, Chairman.

NO REAL CAUSE FOR COMPLAINT.

SHOULD

IRRIGATION TENDS TO INCREASE THE RIO GRANDE WATER FLOW-MEXICO BE GRATEFUL INSTEAD OF TRYING TO KICK UP A ROW OVER IT-RESULT OF THE EXPERT PERSONAL EXAMINATION OF PROFESSOR CARPENTER.

L. G. Carpenter, meteorologist and irrigation engineer of the agricultural college at Fort Collins, was in the city yesterday. Professor Carpenter has been for some time engaged in measuring the waters of the streams of Colorado from which water is taken for irrigation purposes, and last year made a careful examination of the Rio Grande River in the San Luis Park, a matter of considerable importance at this time, in view of the position taken by the Mexican Government, to the effect that the use of the waters of that river for irrigation in Colorado and elsewhere has caused the lowering of the water in the navigable portion of the river in which Mexico has an equal interest with the United States, and that in so doing the United States has violated the treaty, under the terms of which the United States is pledged to do nothing that will interfere with the navigation of the river.

66

"I don't know that I am prepared to make any definite statement on this question," said he, as we have not yet completed our investigations. We took the measurements of the water flow of the Rio Grande last year, but we are only just about to commence this season, and therefore .can hardly say definitely to what extent the use of the water in the Rio Grande for irrigating purposes affects that portion of the river that can be navigated.

FROM GENERALITIES TO PARTICULARS.

"Applying the information obtained from experiments in other places, however, I am inclined to think that the claims of the Mexican Government are not based on very substantial foundations. Of course the Mexican Government has certain vested rights in the waters of the Rio Grande, and our Government is under treaty obligations to protect those rights, but I do not think that there is enough water taken out for irrigation to seriously affect the navigation of the river.

"The records show that when the Rio Grande is low the other waters of the United States are low. There has been no high water in Colorado since 1884, when the water in the Lower Rio Grande was very high. Since that time the waters of all Western rivers have been low until this year, and the Rio Grande River was higher this year than it has been for many years. The claim of the Mexican Government is that the low water since 1884 is due to irrigation, because irrigation first became general in that year in the upper valley of the river; but it is by no means clear to me that this position can be sustained, as similar conditions existed in other streams not seriously affected by irrigation.

"It has been definitely determined that the return to the river bed by seepage is about 30 per cent of the water taken out, the rest being lost by evaporation, by absorption of the growing crops, and by the formation of underground reservoirs. The latter cause of loss is but temporary, however, for when the underground basins are once filled up the water naturally once more seeks its ordinary channel. I think that so far from irrigation being detrimental to the supply of water in the lower portion of streams, it is likely to prove beneficial in this way: It absorbs a large portion of water from floods, and when the basins I have referred to are filled up the flow of the streams becomes steadier.

UNDERGROUND BASINS.

"The extent and depth of these basins for the reception of water beneath the surface are somewhat surprising. For instance, in the San Luis Park there is a large area, the full extent of which has not yet been determined, that is gradually filling up with water, which rises to a point so near the surface that eventually the entire area over this basin will be cultivated without surface irrigation. At some points in this tract where water was not reached formerly at a depth of 1,000 feet it is now found at a comparatively shallow depth. The surface of the bed rock generally slopes away from the river, and it naturally follows that when the basin is filled with water to the rim of bed rock it will overflow into the river. The same phenomenon is observed in the valley of the Cache la Poudre, where wells which when dug found water at a depth of 40 and 50 feet now have water within from 5 to 10 feet of the surface. Of course, in the case of the Rio Grande, when this basin is filled to within a short distance of the surface irrigation will practically cease and the volume of water which passes down the river will be proportionately increased.