there, and Mexico getting the benefit of the water our dam will conserve, leaves the people of New Mexico without water, leaves them completely dry, and people have moved away because of that. The only water left now for New Mexico to irrigate her vast territory of arid land-some of the most beautiful land in the world, they tell meis the torrential water that nobody has ever appropriated. We propose to appropriate it; we laid the foundation to do it, and raised the money, and now it is proposed to stop that.

Mr. STEPHENS. You propose to appropriate all of it.

Mr. McGOWAN. All the torrential waters that have not been heretofore appropriated.

Mr. STEPHENS. Then what will we in Mexico and Texas do?

Mr. MCGOWAN. You have never appropriated any up to this time. Under every arid State law the law allows the first comer to appropriate the water.

Mr. STEPHENS. Taking your proposition, then, suppose some corporation should go above you 50 miles and put in a dam and cut off the water from you?

Mr. McGowAN. The laws of New Mexico would not allow them to do it.

Mr. STEPHENS. Then you are protected by a law, but you do not want any law to protect us?

Mr. BURLESON. What law is there to protect you from that?

Mr. McGOWAN. The law says any amount of water necessary for your use, unless you interfere with some former appropriators. Mr. BURLESON. These are old appropriators.

Mr. MCGOWAN. But they lost their rights when they lost their territory.

Mr. BURLESON. When they lost their country?

Mr. McGOWAN. When they lost their country.

Mr. BURLESON. Then you claim that you have the legal right to appropriate the water there, do you not?

Mr. McGOWAN. Certainly.

Mr. BURLESON. Now, then, they propose by this law to change that legal right; and you answer, "But that would not be right."

Mr. McGowAN. It would not be legally or morally right.

Mr. BURLESON. You answer that it would not be morally right? Mr. MCGOWAN. Yes, sir.

Mr. BURLESON. They say to you it is not morally right for you to take the water they have been using for three hundred years; and so it comes down to a question of moral right, after all.

Mr. McGOWAN. Not quite; no, sir.

The CHAIRMAN. You claim the right to build the Elephant Butte Dam to gather in these flood waters because there has been no dam or project before this to gather in the flood waters?

Mr. MCGOWAN. That is right.

The CHAIRMAN. You do not claim prior right to the natural flowage? Mr. McGowAN. Not a bit.

The CHAIRMAN. That is your position, is it?

Mr. MCGOWAN. Yes, sir.

The CHAIRMAN. I want to have that made clear.

General MILLS. Ask him whether there was not a project for an international dam which was projected three years before his, and whether his project was not copied after the international project.

The CHAIRMAN. General Mills wants to know if there was not an

international dam projected before yours, and whether yours was not copied after it?

Mr. MCGOWAN. The international dam was never projected, so far as I know, except upon a concurrent resolution of Congress. That is the first I know anything about it. There certainly was never any appropriation of the water for any international dam through legal proceedings.

General MILLS. There was a resolution of Congress, and I made the investigation in 1889, expending some $6,000 Government funds on survey, plans, and specifications for dam and reservoir; and I will state for the information of the committee that Mr. Campbell, their engineer, came into my office and, without giving his purpose, took from me the details of the proposed international dam, and in their prospectus they state that their estimates and plans were based on my estimates and plans for the international dam. (See par. 8, p. 7, Senate Doc. No. 229, Fifty-fifth Congress, second session.) Their right of way was not granted by the Department of the Interior until February 1, 1895, and then only subject to valid existing rights. (See p. 4, Senate Doc. No. 229, Fifty-fifth Congress, second session.)

Mr. BURLESON. I would like to ask you a question. You say,in reply to the chairman, that you have the right to store the torrential water. Do you propose to permit the water that has been used in the El Paso Valley for three hundred years to flow by that dam?

Mr. McGOWAN. Will you allow me to answer the question which was not answered by me, but answered by General Mills. And I do not want that answer to stand unchallenged. There was no project for an international dam that had so far ripened that rights attached when we got our incorporation under the New Mexico law and our permit to build the dam, and our rights attached only when we got our plans and specifications and maps approved by the General Government, and there was none such in existence. The first I know of, and I think it is the first project that has received anything like formal recognition, was under the resolution of 1890.

Mr. STEPHENS. You knew that the people of Texas and Mexico intended to appropriate that water by means of an international dam, did you not, and you went above them with the view of cutting it off? Mr. MCGOWAN. No, sir; not for the purpose of that.

Mr. STEPHENS. Does it not do it?

Mr. McGOWAN. Certainly; it stops the torrential waters; we appropriate them. The position is just this

General MILLS. I have some documentary evidence to read in contravention of what Mr. McGowan has stated about the rights of Mexico on that point.

Mr. McGowAN. Under the treaties?

General MILLS. Yes. I do not want to unnecessarily interrupt him. The CHAIRMAN. Please wait until he has completed his statement. Mr. MCGOWAN. In 1890, April 29, Congress passed a concurrent resolution, which was the first notification we had, or I guess anybody had, of any international dam scheme, and this is the resolution:

Concurrent resolution concerning the irrigation of arid lands on the Rio Grande River and the construction of a dam at or near El Paso, Tex., for the storage of its waste waters, and for other purposes.

That is the title. The resolution is too long to detain you, but I want to tell you dogmatically that that is the only suggestion of an

international dam in the title. There is not a thing in the preamble or the resolution itself that provides for an international dam, except in the title, and that is all the notification that was ever given, so far as I know, public or private, with regard to an international dam, until our scheme was projected. The resolution is there and is easily read by the members of the committee.

It makes no difference, Mr. Chairman, legally speaking, if we did the work legitimately and followed the law of the Territory or the law of the United States. Nobody has charged us, so far as I know, with fraud in the matter in any way. It was done openly and aboveboard. We organized our company under the laws of New Mexico, and we got the authority. We declared in our articles of organization that it was our purpose to build a dam at or near Elephant Butte for the purpose of impounding the torrential waters there for the purpose of irrigating the valley below. We declared that in our declaration, and that is on file, and then got a permit to build the dam to take the water, and then we brought on, openly and aboveboard, our maps and plans, and they were approved by the Secretary of the Interior. Now, supposing somebody else had a scheme by which they proposed to take the water out below, that scheme not having matured, not having attached in any way under the statute, how would it affect us? Suppose two individual men have mines on a stream running through Colorado or New Mexico or any of those western Territories that provide for the use of the water in this way; suppose both of them had plans in their heads and talked with their neighbors and one actually did it before the other one did, he is not obstructed because the other one had such a scheme. Now, that is all there is of this suggestion from General Mills, I understand. There was a question asked that I did not answer. The CHAIRMAN. No; I do not believe there is anything more to ask. Mr. WEBER. I am sorry to say that Mr. McGowan made a statement as to the opinion of the Attorney-General-I think it was Mr. Harmon. I read that opinion very carefully, and as Mr. McGowan stated, Mexico has no right, there is no law, there is no equity. I think Mr. McGowan made a mistake in not having read the last line of that opinion in which Attorney-General Harmon said, "This question seems to be a question of comity, and as such it belongs to the State," and upon that I think Mr. Olney, who stands here very high, took this matter up right away from Mexico. Why? Because Mexico

Mr. McGOWAN. Is this a question you are asking me?

Mr. WEBER. No. Then it was proposed in 1889, in that year the thing was laid before the Mexican Government. The Mexican Government investigated it and requested two of the leading lawyers, perhaps the most famous lawyers of Mexico, Messrs. Gamboa and Vallarte, to study the question. Both lawyers agreed that Mexico had under the treaty of Guadalupe Hidalgo substantially the full right of navigation, and the United States were forced to protect this right, because the right of navigation from Paso del Norte is a right belonging to two nations, and neither one can destroy that right.

The CHAIRMAN. Let me interrupt you by reading from the opinion of the present Attorney-General:

I have examined the proposed bill and see no objection to it from the point of view which you have indicated.

That refers to what I had said to him in my communication, which he repeats in the first part of his letter as follows:

Whether the bringing forward of this or a similar measure at this time would be inexpedient or likely to cause embarrassment to the Department of Justice in the prosecution of the pending litigation against the corporations who are seeking to construct a dam and reservoir at Elephant Butte.

He says:

I am not sufficiently acquainted with the material facts to be able to give you an opinion upon the general subject of the projected international dam. That enterprise involves so many questions of scientific and engineering knowledge that I do not feel competent to express an opinion upon it. I have no doubt that many persons who have heretofore used the waters of the Rio Grande at points below El Paso for irrigation purposes have been very seriously injured by the storage and diversion of the water by dams, reservoirs, and irrigating canals.

I would point out to you, however, that the sole basis of jurisdiction in the Federal courts, so far as the United States Government is concerned, is interference with the navigable capacity of the stream. The use of the waters of the river for purposes of irrigation is not a use connected with the regulation of commerce, and the act under which the present suit is being maintained against the Rio Grande Dam and Navigation Company is one solely for the protection of commerce.

Very respectfully,

JOHN W. GRIGGS, Attorney-General. Mr. BURLESON. So the Supreme Court can not possibly pass on the question of the rights of these people to use these waters.

Mr. STEPHENS. It is a question for legislation by Congress.

Mr. MCGOWAN. It is true, and undoubtedly true, I might say here, that I was the sole attorney for the Elephant Butte Dam in the discussion of the case before the Supreme Court with the Attorney-General, and that the question with regard to the claim of Old Mexico on the waters of the Rio Grande was one of the principal points discussed, and we discussed it on both sides. The Attorney-General said that, with all due deference, he differed with his predecessor, Mr. Harmon, who rendered that opinion, and he undertook to show from the treaty of Guadalupe Hidalgo, and from the conventions, and from international comity that Old Mexico is entitled to a portion of this water, and I undertook to show to the contrary, and we had our arguments there concerning that.

When the court came to decide that, had that been true, had his contention been correct, it would have disposed of the whole question. On the contrary, the court held, in substance, that our claim was legitimate, only we must not impound the water to such an extent as would impair the navigability of the stream below. That was all. So that, argumentatively at least, the Supreme Court has held that Old Mexico has no claim on the United States by treaty obligations. What we ought to do, probably, is to be very kind to a sister republic in reference to it; but we should not be kind to a sister republic and the citizens of a sister republic to the detriment of our own citizens. In that arid country water is necessary to life, just as air is, and unless we can get the water we can not stay. You take away the water in the north part, by destroying this dam and carrying the torrential waters to El Paso, and you have destroyed the whole arid region of New Mexico.

Mr. STEPHENS. It is also necessary for the people of Texas to have some water.

Mr. McGOWAN. Texas is not so badly off as New Mexico. Besides, you have to give authority to make a general law as between the States, or else you have got to discriminate unjustly as between the

States. You say yourself this bill does not attempt to go up into
Colorado.

Mr. STEPHENS. Will you not admit this will be constitutional?
Mr. MCGOWAN. Yes, sir.

Mr. STEPHENS. And if it equally distributes the water, and is constitutional, what objection have you?

Mr. MCGOWAN. It is not constitutional if it takes away vested rights.

Mr. STEPHENS. Do you object to the equitable distribution of the water?

Mr. MCGOWAN. Only that the first comer can have the water. If there is not enough for the whole, then the first comer should have it. Mr. STEPHENS. Do you think, as a matter of moral right, that is just? Mr. MCGOWAN. I have not any doubt about it.

Mr. BURLESON. What do you mean by the first comer?

Mr. MCGOWAN. The first appropriator. He is the one who has the right to it under the law.

Mr. BURLESON. Then if these people appropriated it three hundred years ago you will admit that morally your people are in the wrong? Mr. STEPHENS. That is correct.

Mr. MCGOWAN. No; because there came in that settlement by war, by which they lost their territory.

Mr. BURLESON. And now Mr. Stephens proposes by a statute to change that, and you answer back that that would not be morally right. Then it comes down to a question of the measure of the moral right?

Mr. McGowAN. When they were using that water they were using the water that was gathered in old Mexico, water that fell upon their own country and was gathered there. Now they propose to use water that falls upon our own watershed and is necessary for the sustenance of our own citizens.

Mr. BURLESON. The water they propose to use now falls upon the same watershed that the water fell on three hundred years ago. Mr. STEPHENS. Is not Texas a part of the United States? Mr. MCGOWAN. Yes, a good deal.

Mr. STEPHENS. And are not you depriving the United States, then, of water when you propose this?

Mr. McGowan. But they are not any more entitled to the water from New Mexico than New Mexico is entitled to water from Colorado. Mr. BURLESON. Certainly not; but what do you mean by saying that the first comers have the first right?

Mr. MCGOWAN. The law says so.

Mr. BURLESON. Then if these people came there three hundred years ago, that was before Mexico

Mr. MCGOWAN. That is outside of our jurisdiction. The law does not say so with regard to old Mexico; it only applies to New Mexico and Texas and Colorado.

Mr. BURLESON. Do you believe that these Mexican citizens should be deprived of their right because they can not come into our courts to sue?

Mr. MCGOWAN. They are not deprived of their right. Before they owned that, and where they propose to get the water now, it belongs We own that water; it falls on our watersheds.

to us.

The CHAIRMAN. Do your people intend to take the natural flowage of the water of the Rio Grande?