aware that the Department of Justice has simply acted along and within the line of duty in the matter. If you have become familiar with the inner workings of this case, you have probably noted that the most determined opponents of the Elephant Butte Dam are the most earnest supporters of the proposed international dam at El Paso. They are, in fact, the only opponents, and, for some reason, conceived that the first project was a menace to the second; hence the pending suit. This is cited to show the animus in the origination of the latter. The avowed object of the El Paso Dam is identical in substance and application with the Elephant Butte. On what score, then, can the nature of existing opposition to the latter be justified and how shall the Government itself be consistent in prohibiting the one and building the other? The simple truth is that our opponents are insincere champions of navigation on the Rio Grande, for they also propose to do the very thing condemned in us, relying on their abilities to "whip the devil around the stump" by a special act of Congress.

The people of New Mexico and Colorado are looking to the Department of Justice for justice, confident that such they will receive. In the meantime, they are suffering and desire a speedy termination of the suit.

EXHIBIT C.

MEMORIAL TO THE SENATE OF THE UNITED STATES IN RE BILL S. 3794, REPORT NO. 1755, CALENDAR NO. 1736, FIFTY-SIXTH CONGRESS, SECOND SESSION-HISTORY OF THE RIO GRANDE DAM AND IRRIGATION COMPANY AND THE ELEPHANT BUTTE DAM CASE-WITH ABSTRACTS FROM DECISIONS OF THE UNITED STATES COURTS RELATING TO THE USE OF WATERS OF NONNAVIGABLE STREAMS FOR IRRIGATION PURPOSES.

To the Honorable Members of the United States Senate.

GENTLEMEN: Your Committee on Foreign Relations, in its report as above, having recommended that bill S. 3794 be passed, I take the liberty, as a citizen of New Mexico (an integral part of the United States, denied for more than half a century a vote in Congress), whose Territorial rights are threatened, and as the largest holder of the debenture bonds of the irrigation company, whose legally acquired rights and valuable irrigation works the bill proposes to confiscate, of respectfully submitting the following particulars for your consideration:

The bill, like its counterpart (H. R. 9710, Fifty-sixth Congress, first session) introduced in the House by Mr. Stephens, of Texas, purports to be "Aill to provide for the equitable distribution of the waters of the Rio Grande between the United States of America and the United States of Mexico."

But the two general purposes of the bill are the reverse of equitable:

(1) To prevent an American company from constructing a storage dam on the Rio Grande at a point known as Elephant Butte, in Sierra County, N. Mex., about a hundred miles above El Paso, Tex., for the irrigation of lands lying wholly within the United States.

(2) To provide for the construction, by the United States, of an "international dam" across the river at a point in the canyon some 2 or 3 miles above El Paso, primarily in order to supply water to citizens of the Republic of Mexico, and secondarily for the irrigation of lands in Texas.

The bill also incidentally provides for the cession to the Republic of Mexico of certain lands now forming part of the Territory of New Mexico in order that the dam provided for under the bill may be strictly international, one-half in the United States of America and one-half in the United States of Mexico.

This proposal to build an "international dam," wholly at the expense of the United States, is based on the contention that Mexico is entitled to one-half of the waters of the Rio Grande above, as well as below, the point on the southern boundary of the Territory of New Mexico from whence the river becomes the boundary line between the two Republics.

For some years it has been claimed by the residents of that portion of old Mexico abutting on the southern boundary of the Territory of New Mexico and along the western bank of the Rio Grande that, owing to the appropriation of the waters of the Rio Grande for irrigation in Colorado and New Mexico, Mexico has been deprived of her proportion of the waters of the river, waters to which, it is alleged, Mexico is entitled under the provisions of article 7 of the treaty of Guadalupe Hidalgo of February 2, 1848; article 1 of the Gadsden treaty of December 30, 1853; article 3 of the convention of November 12, 1834, and article 1 of the convention of March 1, 1889. Consequent upon this alleged violation of treaty on the part of the United States, the late Mexican minister, M. Romero, filed a request with the State Department that the United States Government should prevent any further work on the Rio Grande by the Rio Grande Dam and Irrigation Company, a company regularly incorporated under the laws of New Mexico and engaged in carrying out a great irrigation system to supply water to several hundred thousand acres of fertile alluvial land in the Rio Grande Valley in the southern part of the Territory. Claims of citizens of Mexico for damages by reason of being deprived of the use of the waters of the Rio Grande for irrigation were also filed with the State Department, amounting in the aggregate to something over $35,000,000.

Out of these proceedings on the part of the Mexican Government and its citizens a scheme was evolved and put forward whereby a treaty, a draft of which is now on file in the State Department, would be entered into between the United States and Mexico, under the terms of which the United States would undertake to build an "international dam," as now provided for in the bill S. 3794, in satisfaction of Mexico's claim.

Whether by treaty or under the principles of international law Mexico has any right to the waters of the Rio Grande where the course of that river (which is a nonnavigable stream, excepting for a short distance above its mouth, nearly a thousand miles below El Paso) flows wholly through United States territory, is a question I do not feel competent to express an opinion upon, but I beg to submit that there is at least one section in the pending bill which, if enacted by Congress, could not be enforced, as it is opposed to the spirit and letter of the Constitution. I refer to that section of the bill which is intended to destroy the water rights of the Territory of New Mexico and the vested rights and property of the Rio Grande Dam and Irrigation Company.

While Congress has power to regulate commerce with foreign nations, between the several States and with Indian tribes, and this power carries with it jurisdiction over navigable waters forming highways between States and between the United States and foreign

nations, the Federal Government has no jurisdiction over the nonnavigable waters within the borders of any State, with two exceptions: (1) To preserve, so far as may be necessary, the navigability of navigable waters to which such nonnavigable waters contribute; (2) to preserve the riparian rights which citizens of the United States may have by reason of owning lands along the streams within such States.

THE RIO GRANDE DAM AND IRRIGATION COMPANY AND THE ELEPHANT BUTTE DAM.

In order that the status of the above company in its relation to the bill in question may be understood, a brief history of Rio Grande irrigation and of what is known as the Elephant Butte Dam case should be taken into consideration.

Thousands of acres of the land in the Rio Grande Valley in southern New Mexico have been irrigated since the Spaniards first founded colonies in that part of "New Spain" over three hundred years ago, and since annexation to the United States a large area of the irrigable lands of the valley has been cultivated by American citizens. Flourishing towns have grown up, and the Mesilla Valley, the principal subdivision of the Rio Grande Valley, is now recognized as one of the finest fruit and vine growing sections of the United States. But owing

to the torrential character of the Rio Grande it has heretofore been difficult to adequately irrigate more than a relatively small portion of the highly fertile lands along the river.

From time to time during the past twenty years and more various means of raising capital for the construction of a great storage dam to impound the flood waters of the river have been proposed by citizens of the Territory. Government aid has again and again been sought and investment of private capital solicited, but without avail. At one time the Federal Government appeared seriously to entertain plans, recommended by the Irrigation Bureau, for the construction of a series of storage dams. Reservoir sites on the Rio Grande were surveyed by Government engineers, who reported favorably on the proposition, and these sites were duly reserved, but nothing came of it, and ultimately they were thrown open for public appropriation (act of 1891) for reservoir purposes.

In 1893 the Rio Grande Dam and Irrigation Company was incorporated under the laws of New Mexico. All the requirements of the Territorial and Federal statutes were complied with in order to legally establish the reservoir rights essential to the company's undertaking; and as the then condition of the money market in this country rendered it impossible to raise, at anything but prohibitive rates, the large amount of capital required to carry out the proposed works, I personally, being largely interested in the company, went abroad with a view to placing the company's debenture bonds in Europe.

Unfortunately, the mistrust of American industrial securities, especially of irrigation securities, had become so universal that notwithstanding large sums were expended in properly presenting the enterprise to capitalists none would risk investment, although all admitted the obvious merits of the company's undertaking.

In England the directors of a public company are individually and collectively responsible to investors for good management, and finding that foreign investors would be more likely to intrust their money to an English board of directors, an English company was formed to issue 8 per cent preference shares and 5 per cent debenture bonds (the

former at par, the latter at a premium of 5 per cent), to be secured by a lease of the American company's undertaking. An exceptionally influential board, the members of which invested extensively in the enterprise, was secured, and largely on the strength of the high rank and representative character of the members of the board, the necessary capital was underwritten and subscribed-subject to calls to be made from time to time as the proposed irrigation works were proceeded with.

Col. W. J. Engledue, R. E., an authority on irrigation engineering, for many years identified with the imperial irrigation works in India, visited the Rio Grande Valley on behalf of the English investors, and carefully investigated the engineering features of the enterprise and the titles of the American company. Work on the proposed dams and canals was begun; a great colonization system was organized; branch offices and agencies were established in Great Britain and on the Continent, and the company's literature, descriptive of the climatic and other advantages offered to settlers in the valley and of the resources of the Territory, was printed in English and French and widely circulated; contracts for the sale of large blocks of land for fruit and vine culture were made, the company undertaking to provide water within two years; agreements were entered into with the owners of the community ditches in the valley whereunder the American company would concede water rights to the landowners along such ditches in exchange for the community ditches and for blocks of land, the farmers to pay an annual water rent of $1.50 per acre for every acre irrigated. In fact, everything conducive to the colonization and development of the valley which good management could suggest and capital secure was provided for.

The landowners of the valley, to a man, favored the company's undertaking, as lands now practically valueless, or, where irrigated from the community ditches, worth but little more than a few dollars per acre, rapidly appreciated in selling value so soon as the company began work upon its canal system, large blocks being contracted for by subsidiary companies and sold to settlers at $100 an acre. Widespread interest in the enterprise in particular, and the resources of the Territory in general, was aroused both in this country and in Europe, and thousands of applications for lands were being received at the London office when, without a word of warning, the AttorneyGeneral, at the instigation of the promoters of the international dam scheme, instituted proceedings with the avowed intention of invalidating the company's rights and of confiscating the valuable works that were in course of construction.

INJUNCTION SUIT AGAINST THE RIO GRANDE DAM AND IRRIGATION COMPANY.

In the absence of any legitimate grounds for the action, it was based upon the preposterous allegation that the company's works would interfere with the navigation of the Rio Grande in New Mexico. Later the plaint against the company was amended, the items being:

(1) That the Rio Grande is navigable at Elephant Butte, New Mexico, where the company proposes to create its main storage reservoir, and that consequently the company's dam would violate the United States statute prohibiting obstructions in navigable waters.

(2) That if the Rio Grande is not navigable at Elephant Butte, yet it is navigable near its mouth (some 900 miles below), and that the company's dam would lessen the navigable capacity of the river at this lower point.

(Parenthetically it may be stated that this wonderful and valuable navigation interest the Department affects to safeguard (?) is represented by one old flat-bottomed river boat, the Bessie, which only draws 28 inches of water and which occasionally succeeds in making short trips up the Rio Grande above tide water.)

(3) That to dam the Rio Grande at Elephant Butte and use the waters for irrigation in the valley below would result in a violation of the treaty obligations due from the United States to the Republic of Mexico.

The Government's bill of complaint and the answer thereto necessarily raised the question of Mexico's claim against the United States (now amounting to over $35,000,000) and the alleged raison d'etre of an international dam at El Paso. The latter, strangely enough, the authorities seem to think could not interfere with the alleged navigability of the Rio Grande, and thus prejudice the sacred rights of the Bessie.

Bearing in mind that the Federal authorities have for years maintained, in opposition to Mexico's claim, that the Rio Grande is not a navigable stream, and that therefore the use of the waters of the river by American citizens in Colorado and New Mexico is not a violation of the Guadalupe Hidalgo and Gadsden treaties; that the late Attorney-General Harmon, in response to an official request for an opinion, had officially declared the river not to be navigable in the sense claimed; that engineers employed by the Government had selected reservoir sites on the Rio Grande for irrigation in New Mexico; that subsequently these reservoir sites had been thrown open for appropriation; that the company's selection of a reservoir site at Elephant Butte had been officially approved by the Secretary of the Interior, at whose request the company's plans had been slightly altered, the action of the Department of Justice in instituting proceedings, as above, was, to say the least, remarkable.

Correspondence on file in the Departments proves conclusively that when the supporters of the international dam project first sought to prevail upon the authorities to take action against the company the company's rights were declared by the then Attorney-General, the Secretary of the Interior, and others consulted to be unassailable. It was not until later that the Secretary of War was beguiled into stating that if the Rio Grande was a navigable stream in New Mexico the company's rights had not been properly acquired, inasmuch as his Department's consent to the impounding of the waters of the Rio Grande had not been sought and obtained. The United States Boundary Commission was referred to for information as to the navigability of the Rio Grande, and as Gen. Anson Mills, director of the United States Boundary Commission, was and is one of the principal promoters of the international project, the Department was promptly advised that the river is navigable in New Mexico, logs having been floated down the river many years ago when the stream was in flood. Proceedings were consequently instituted, as above stated, to enjoin the company from completing its works, and in due course the case came on for hearing in the Third judicial district court of New Mexico. A vast amount of testimony was submitted on both sides, but the evidence was overwhelmingly against the Government. The court decided the case, with costs, in the company's favor and dissolved the injunction.

The Attorney-General then ordered an appeal to the Territorial supreme court, which court decreed as follows:

(1) Under the treaties with Mexico each Republic reserves all rights within its own territorial limits. This would have been so upon principles of international