It is beyond the bounds of controversy that these treaties and conventions do not deal directly or indirectly with the question of the use of the waters of the Rio Grande above the south line of New Mexico for any purpose. When the high contracting powers, with all the deliberation which surrounds the making of treaties between two independent nations, provided that there should be no impairment of the territorial rights of either Republic within its established limits, they precluded any idea or thought of a demand to be made by the lower country upon the upper for a share in the waters gathered within the territorial limits of the upper country.

It is also clear that the author of this bill realized that no legal claim could be made by Mexico for any part of the waters of the Rio Grande running through our own territory based on these treaties. He only charges in his preamble that our use of the waters to fructify our own soil was a violation of the spirit of the contract.

But this whole question is dealt with by the Attorney-General in 21 Opinions, 274. In his syllabi to his own opinion he states, among ohter things, that

the taking of water for irrigation from the Rio Grande above the point where it ceases to be entirely within the United States and becomes the boundary between the United States and Mexico is not prohibited by said treaty. Article 7 is limited in terms to that portion of the Rio Grande lying below the southern boundary of New Mexico, and applies to such work alone as either party might construct on its own side. The only right the treaty professed to create or protect with respect to the Rio Grande was that of navigation. Claims against the United States by Mexico for indemnity for injuries to agriculture alone, caused by scarcity of water resulting from irrigating ditches wholly within the United States, at places far above the head of navigation, find no support in the treaty.

Again to the Attorney-General, referring to any possible obligation existing on the part of the United States under international law or the comity of nations, uses this language:

The rules, principles, and precedents of international law impose no duty or obligation upon the United States of denying to its inhabitants the use of the water of that part of the Rio Grande lying entirely within the United States, although such use results in reducing the volume of water in the river below the point where it ceases to be entirely within the United States.

The fact that there is not enough water in the Rio Grande for the use of the inhabitants of both countries for irrigation purposes does not give Mexico the right to subject the United States to the burden of arresting its development and denying to its inhabitants the use of a provision which nature has supplied entirely within its own territory. The recognition of such a right is entirely inconsistent with the sovereignty of the United States over its national domain.

A study of the treaties and of the opinion which I have just quoted will convince, I am sure, any unprejudiced lawyer or jurist that the law is accurately stated by Attorney-General Harmon. A similar conclusion was reached by the unanimous judgment of the supreme court of the Territory of New Mexico in the case of the United States v. The Rio Grande Dam and Irrigation Company et al., to be found in the record of that case now pending in the United States Supreme Court.

The bill under consideration, having first stated that the reason for its enactment was the violation of the spirit of article 7 of the treaty of peace of Guadalupe Hidalgo, proceeds in section 1 to fix the construction which shall thereafter be given to four separate statutes of the United States. That the committee shall not proceed in the dark, I here give the substance of each of these statutes.

The act of March 3, 1891, is found in 26 Stats., 1101, being section 18 of an act to repeal the timber-culture laws. That section reads as follows:

SEC. 18. That the right of way through the public lands and reservations of the United States is hereby granted to any canal or ditch company formed for the purpose of irrigation and duly organized under the laws of any State or Territory which shall have filed, or may hereafter file, with the Secretary of the Interior, a copy of its articles of incorporation, and due proofs of its organization under the same, to the extent of the ground occupied by the water of the reservoir and of the canal and its laterals, and 50 feet on each side of the marginal limits thereof; also the right to take from the public lands adjacent to the canal or ditch material, earth, and stone necessary for the construction of such canal or ditch: Provided, That no right of way shall be so located as to interfere with the proper occupation by the Government of any such reservation, and all maps of location shall be subject to the approval of the department of the Government having jurisdiction of such reservation, and the privilege herein granted shall not be construed to interfere with the control of water for irrigation and other purposes under authority of the respective States or Territories.

The act of January 21, 1895, is found in the 28th Stats., 635, and is entitled "An act to permit the use of right of way through the public lands for tramroads, canals, and reservoirs, and for other purposes." It provides:

That the Secretary of the Interior be, and hereby is, authorized and empowered, under general regulations to be fixed by him, to permit the use of right of way through the public lands of the United States not within the limits of any park, forest, military or Indian reservation, for tramroads, canals, or reservoirs, to the extent of ground occupied by the water of the canals or reservoirs, and 50 feet on each side of the marginal limits thereof, or 50 feet on each side of the center line of the tramroad, by any citizen or any association of citizens of the United States engaged in the business of mining or quarrying or of cutting timber and manufacturing lumber.

The act of February 26, 1897, is found in the 29th Stats., 599. It reads:

That all reservoir sites reserved, or to be reserved, shall be open to use and occupation under the right of way act of March 3, 1891. And any State is hereby authorized to improve and occupy such reservoir sites to the same extent as an individual or private corporation, under such rules and regulations as the Secretary of the Interior may prescribe: Provided, That the charge for 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 regulation of the respective States and Territories in which such reservoirs are in whole or part situate.

The act of May 11, 1898, is found in 30 Stats., 404. It reads as follows:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the act entitled "an Act to permit the use of the right of way through the public lands for tramroads, canals, and reservoirs, and for other purposes," approved January 21, 1895, be, and the same is hereby, amended by adding thereto the following:

"That the Secretary of the Interior be, and hereby is, authorized and empowered, under general regulations to be fixed by him, to permit the use of right of way upon the public lands of the United States not within the limits of any park, forest, military or Indian reservations, for tramways, canals, or reservoirs, to the extent of the ground occupied by the waters of the canals and reservoirs, and 50 feet on each side of the marginal limits thereof, or 50 feet on each side of the center line of the tramroad, by any citizen or association of citizens of the United States for the purpose of furnishing water for domestic, public, and other beneficial uses.

"SEC. 2. That the right of way for ditches, canals, or reservoirs heretofore or hereafter approved under the provisions of sections 18, 19, 20, and 21 of the act entitled 'An act to repeal timber-culture laws, and for other purposes,' approved March 3, 1891, may be used for purposes of a public nature; and said rights of way may be used for purposes of water transportation, for domestic purposes, or for the development of power, as subsidiary to the main purpose of irrigation."

THE REVISED STATUTES.

Now, the above acts, that by the terms of the bill are to be interpreted, modified, and, so far as New Mexico is concerned, repealed, must be read in connection with the acts of 1866 and 1870, which form sections 2339 and 2340 of the Revised Statutes. They are as follows: 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 purposes herein specified is acknowledged and confirmed; but whenever any person, in the construction of any ditch or canal, injures or damages the possession 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. (See 14 Stat., 252.)

SEC. 2340. All patents granted, or preemption or homsteads 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.

Thus the question of the use of the nonnavigable waters of the arid portions of our country for irrigation purposes was settled by solemn enactment of Congress thirty-five years ago.

The common law relating to riparian rights was not applicable to the condition of things found in the Western States and Territories, and the miners and those using the water of the streams for irrigation established the rule of prior appropriation, which came to be adopted by the local courts, and subsequently, as seen above, approved by Congress.

The Supreme Court has given construction to that act in Atchison v. Peterson (20 Wal., 507; bk. 22, L. ed., 414) and in Basey v. Gallagher (20 Wal., 670; bk. 22, L. ed., 452). In the latter case the controversy related to the use, for the purposes of irrigation, of the waters of Avalanche Creek, near its junction with the Missouri River. See also Jennison v. Kirk (98 U. S., 453; bk. 25, L. ed., 240), and Brader v. Notoma Water, etc., Co., 101 U. S., 274; bk 25, L. ed., 790). In this latter case Justice Field, delivering the opinion of the court, said:

We are of opinion that it is the established doctrine of this court that 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 establishment of a new one.

Here is the highest legislative and judicial authority for doing what the Rio Grande Dam and Irrigation Company are proposing to do at Elephant Butte, provided "the local customs, laws, and the decisions of the courts" of New Mexico permit the same.

TERRITORIAL LAWS.

When the United States acquired the Territory, the existing laws were continued in force, and those laws of the Mexican Government, as they related to the use of water for agricultural purposes, were dis

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tinctly based upon the rule of prior appropriation; and one of the first enactments of the Territorial legislature provided that—

no inhabitant of said Territory shall have the right to construct any property to the impediment of irrigation of lands and fields, such as mills, or any other property that may obstruct the source of the water, as the irrigation of the fields should be preferable to all others.

In the general laws of New Mexico for the year 1880, under the chapter entitled "Chapter 1, acequias," was enacted the following:

SEC. 1. All the inhabitants of the Territory of New Mexico shall have the right to construct either private or common acequias, and to take the water for said acequias from wherever they can.

Subsequently (1886-87) the legislature enacted the incorporation law under which the Rio Grande Dam and Irrigation Company was organized. This law, it will be observed, provides only for irrigation companies. It is found in Chapter 12, page 29, Session Laws, 1886-87. I here give all the essential parts:

SEC. 1. Any five persons who may desire to form a corporation for the purpose of constructing and maintaining reservoirs and canals, or ditches and pipe lines, for the purpose of supplying water for the purpose of irrigation, mining, manufacturing, domestic and other public uses, including cities and towns, and for the purpose of colonization and the improvement of lands in connection therewith, for either or both of said objects, either jointly or separately, shall make and sign articles of incorporation, which shall be acknowledged before the secretary of the Territory, or some person authorized by law to take the acknowledgment of conveyances of real estate, and when so acknowledged such articles shall be filed with such secretary.

Sections 2, 3, and 4 prescribed the details of what the articles of incorporation shall contain, and the last clause of section 4 reads as follows:

May purchase, acquire, hold, sell, mortgage, and convey such real estate as such corporation may require to successfully carry on and transact the objects for which it was formed.

SEC. 17. Corporations formed under this act for the purpose of furnishing and supplying water for any of the purposes mentioned in section 1 shall have, in addition to the power hereinbefore mentioned, rights as follows:

1. To cause such examinations and surveys for their proposed reservoirs, canals, pipe lines, and ditches, to be made as may be necessary to the selection of the most eligible locations and advantageous routes, and for such purpose, by their officers, agents, and servants, to enter upon the lands or water of any person or of this Territory.

2. To take and hold such voluntary grant of real estate and other property as shall be made to them in furtherance of such corporation.

3. To construct their canals, pipe lines, or ditches upon or along any stream of

water.

4. To take and divert from any stream, lake, or spring the surplus water for the purpose of supplying the same to persons to be used for the object mentioned in section 1 of this act, but such corporation shall have no right to interfere with the rights of or appropriate the property of any persons except upon the payment of the assessed value thereof, to be ascertained as in this act provided: And provided further, That no water shall be diverted if it will interfere with the reasonable requirements of any person or persons using or requiring the same when so diverted.

5. To furnish water for the purposes mentioned in section 1, at such rates as the by-laws may prescribe; but equal rates shall be conceded to each class of consumers. 6. To enter upon and condemn and appropriate any lands, timber, stone, gravel, or other materials that may be necessary for the uses and purposes of said corporations.

This incorporation law was amended in 1891 (Session Laws, p. 130), providing that persons, associations, or incorporations might enlarge ditches and canals, as well as construct new ones; providing for making a public record of their transactions, and that "no priority of right

for any purpose shall attach to any such construction, change, or enlargement until such record is made." Other provisions still further safeguard the interests of the public and the rights of previous appropriators of water.

THE STEPHENS BILL REPEALS OTHER LAWS THAN THOSE IT MENTIONS.

It must thus be clear that the irrigation laws of New Mexico are the irrigation laws of the United States, and that the acts of Congress of 1866 and 1870, and the whole body of laws of New Mexico relating to the use of the nonnavigable waters of that Territory for purposes of irrigation, are repealed by this Stephens bill, as well as the specific acts named in its first section.

Congress says that

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.

The Territory of New Mexico does recognize, by its customs, laws, and decisions, the full rights of prior appropriators. Under those laws we have appropriated the flood waters at Elephant Butte. We could not appropriate a drop of water that had been previously appropriated by any other person in the Territory. If we attempted it the laws of the Territory would protect the prior appropriator. The law has been frequently invoked for that purpose, the reports of the local courts being full of such cases.

Now, it is no answer to this contention to say that the torrential waters of the Rio Grande gathered in New Mexico were previously appropriated by the citizens of Old Mexico. The laws of the United States and of New Mexico have no application to Old Mexico. Neither do they contravene, as we have seen, any treaty rights of these foreigners.

The officers of the Geological Survey and of the Agricultural Department have for years urged the impounding of the flood waters of the Rio Grande for use in irrigation, declaring that they are now an entire waste. To accomplish this a number of reservoir sites were established along the stream above El Paso by Congressional requirement. One of these was a short distance north of Elephant Butte and another just south of that point.

But it is not true that the Mexican citizens have been using the waters which the Rio Grande Dam and Irrigation Company propose to impound. And if it were true, their claims could not be heard to the destruction of the legally acquired rights of our own citizens.

THE BILL IS SOLELY FOR THE PROTECTION OF THE MEXICANS.

My argument has proceeded on the theory that the word "others, in the fourth line of page 3 of the bill, was meant to cover the residents and citizens of Old Mexico located on or along the river below El Paso. If it does not mean that, then the whole bill is nonsense. All others who have rights "by prior appropriation"--that is, other persons in New Mexico-are already protected by the laws of New Mexico and the laws of the United States; but the preamble discloses