U.S. v. Rio Grande Dam & Irr.Co.

• Decision Date: 05 January 1898
• Citation: 51 P. 674,9 N.M. 292,1898 -NMSC- 001
• Parties: UNITED STATES v. RIO GRANDE DAM & IRRIGATION CO. et al.
• Court: New Mexico Supreme Court

51 P. 674

9 N.M. 292, 1898 -NMSC- 001

UNITED STATES v. RIO GRANDE DAM & IRRIGATION CO. et al.

Supreme Court of New Mexico

January 5, 1898

Appeal from Third judicial district court; before Justice G. D Bantz.

Suit by the United States of America against the Rio Grande Dam & Irrigation Company and others. From a decree for defendants dismissing the bill, complainant appeals. Affirmed.

A. B Fall, S. B. Newcomb, and W. A. Hawkins, for appellees.

SMITH C.J.

This is a suit in equity brought by the United States to restrain the Rio Grande Dam & Irrigation Company from constructing or maintaining a dam across the Rio Grande river, in the territory of New Mexico. The structure especially aimed at is a dam projected and about to be built by the defendant company at a point called "Elephant Butte," the object of which is to take water from the river, and store it in reservoirs, for the purpose of irrigation. The ground upon which the claim of the government is predicated is that the Rio Grande is a navigable river, and that the proposed dam will obstruct the navigation of the river, the flow of waters therein, and interfere with its navigable capacity; and that such obstructions would be contrary to the treaty with Mexico, and in violation of the acts of congress. A preliminary injunction was granted, and defendant ordered to show cause why it should not be continued. The defendant answered, denying that the Rio Grande is a navigable river and also filed pleas justifying under its right of way for canals and reservoirs secured under the act of congress of 1891 and certain territorial laws. Upon the hearing the court below held that upon the facts presented by affidavit, as well as other facts of which it took judicial notice, the Rio Grande is not a navigable stream within the territory of New Mexico, and that the bill does not state a case entitling it to the relief prayed; and, upon the complainant's declining to amend its bill further, the court dissolved the injunction and dismissed the bill. From that judgment the United States appealed to this court.

The right of the United States to prevent the construction of the irrigation works in question is sought to be deduced chiefly from two acts of congress, viz.: (1) Act Sept. 19, 1890, § 10, which prohibits "the creation of any obstruction not affirmatively authorized by law, to the navigable capacity of any waters, in respect to which the United States has jurisdiction." (2) Act July 13, 1892, § 3, which declares that it shall not be lawful "to build any *** dam, weir *** or structure of any kind *** in any navigable waters of the United States *** without the permission of the secretary of war, in any port, road stead, haven, harbor, navigable river, or other waters of the United States, in such manner as shall obstruct or impair navigation, commerce or anchorage of said water." Some allusion has been made to the treaty of Guadalupe Hidalgo of 1848, between the United States and Mexico, as containing stipulations which would be violated by permitting the contemplated construction to proceed. The only provision of that treaty bearing upon this subject simply provides, in article 7, that the part of the Rio Grande lying below the southern boundary of New Mexico is divided in the middle between the two republics, and that the navigation below said boundary "shall be free and common to the vessels and citizens of both countries, and neither shall, without the consent of the other, construct any work that may impede or interrupt, in whole or in part, the exercise of this right." Manifestly, this applied only to that portion of the river below the boundary of New Mexico, for the same article contains the further qualifying clause that "the stipulations contained in the present article shall not impair the territorial rights of either republic within its established limits." Furthermore, the treaty of 1853, known as the "Gadsden Treaty," contains an express provision that the stipulations and restrictions of the seventh article of the treaty of Guadalupe Hidalgo shall remain in force only so far as regards the Rio Grande "below the intersection of the 31 degree, 57 min., 30 sec., parallel of latitude with the boundary line established by that treaty." There is no undertaking by either of the parties to these treaties that the Rio Grande is, or shall continue to be, navigable. All that either agreed to in this connection was that it would not construct, below the point of intersection of the above-mentioned parallel of latitude, which is about that of El Paso, any work which would interfere with the common use of the river. No obligation devolved upon the United States to conserve the waters of the river above that point for the purpose of facilitating navigation below it.

We think the whole question turns upon the applicability of the acts of congress above mentioned. By their express terms these acts deal only with navigable waters. Unless the Rio Grande is a navigable stream, and its "navigation," or "navigable capacity," will be obstructed by the proposed dam, these statutes do not apply to the case, and cannot be invoked to enable the government to stop the progress of the work by injunction. It is alleged in the original bill that the Rio Grande, from and including the site of the proposed dam, has been used to float logs for commercial and business purposes, and for affording a means for commercial traffic within and between the territory of New Mexico and the state of Texas and the republic of Mexico. In the amended bill it is alleged that the said river is susceptible of navigation for commercial purposes up to La Joya, in the territory of New Mexico, about 100 miles above Elephant Butte. In both the river is alleged to be navigable at certain points below El Paso. It is conceded that the navigability of waters is a matter of which courts take judicial notice. The record contains a large mass of information, in the form of maps, reports of exploring and surveying expeditions made under the direction of the war and interior departments, and also reports of officers specially detailed to investigate the feasibility of rendering the river commercially navigable by improvements, and also its capability of supplying reservoirs for irrigation. From these and other data the following facts, as stated in the opinion of the court below, are well established:

The course of the Rio Grande in New Mexico is through rocky canons and sandy valleys. In the valleys it spreads out, shallow and between low banks, over fine, light, sandy soil, of great depth. Bars are continually forming, passing away, and reforming, and the quicksands in the bed of the stream and along its margin are perilous to life. The fall is from 4 to 52 feet to the mile, and the changes in its course are rapid, continual, and often radical. The valley is scarred with low ravines made by its progress in different places. In all the period of time only two instances were shown when the river was actually utilized for the conveyance of merchandise, and these were of timbers. One of these instances occurred in 1858 or 1859, when a raft was sent down from Canutillo to El Paso, a distance of 12 miles; and the other recently, when some telegraph poles were floated from La Joya a "short distance." "The water of the stream, especially in central and southern New Mexico, is heavily loaded with silt. The channel of the river through these valleys is usually choked with sand, and in times of law water the stream divided into a number of minor channels, and apparently a large percentage of the water is lost in these great deposits of fine material." 12 Ann. Rep. Geol. Sur. 204. "From Bernalillo, N. M., to Ft. Hancock, Tex., the Rio Grande is in the highest degree spasmodic, with immense floods during a few weeks of the year, and a small stream during the remainder of it." 10 Ann. Rep. Geol. Sur. p. 99. "From personal observation, I know that these seasons of flood and drouth [in the Rio Grande] were of about the same character 30 years ago." Maj. Anson Mills, 10 U.S. Cav. Rep. Spec. Com. Sen., volumes 3, 4, p. 39. But, what is of more importance, we have reports of officials upon the exploration of the river, made under the direction of the government, for the special purpose of considering its navigability. From these it appears: "The stream is not now navigable, and it cannot be made so by open channel improvement. An accurate survey and hydrometric observations would be necessary to determine positively whether an improvement by locks and dams could be made or not, but the heavy fall of the river, the lowness of its banks, and the small discharge do not encourage the belief that such improvement would be financially, even if physically, practicable. Certainly there is no public interest which would justify the expenditure of the many millions of dollars which such an improvement would involve. The irrigation of the valley is a matter in which the inhabitants are now deeply interested, while the possible navigation of the river receives little or no attention from them. *** In my judgment, the stream is not worthy of improvement by the general government." Report of O. H. Ernst, Major of Engineers, to Secretary of War, 1889. Again: "I consider the construction, not only of an open river channel, but of any navigable channel, to be impracticable. *** During the greatest part of the year, when the river is low, the discharge would be insufficient to supply any navigable channel, except, perhaps, a narrow canal with locks, the construction of which, on a foundation of sand, in places forty feet deep, would be financially, if not physically, impracticable." Report of Gerald Bagnall, Assistant Engineer, to Secretary of War, 1889.

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