United States v. Rio Grande Dam & Irrigation Co., 174 U.S. 690 (1899)
United States v. Rio Grande Dam and Irrigation Company
No. 216
Argued November 7-8, 1898
Decided May 22, 1899
174 U.S. 690
APPEAL FROM THE SUPREME COURT
OF THE TERRITORY OF NEW MEXICO
Syllabus
The River Rio Grande, within the limits of New Mexico, is not a stream over which, in its ordinary condition, trade and travel can be conducted in the customary modes of trade and travel on water.
The unquestioned rule of the common law was that every riparian owner was entitled to the continued natural flow of the stream; but every state has the power, within its dominion, to change this rule, and permit the appropriation of the flowing waters for such purposes as it deems wise; whether a territory has this right is not decided.
By acts of Congress referred to in the opinion, Congress recognized and assented to the appropriation of water in contravention of the common law rules, but it is not to be inferred that Congress thereby meant to confer on any state the right to appropriate all the waters of the tributary streams which unite into a navigable watercourse, and so destroy the navigability of that watercourse in derogation of the interests of all the people of the United States.
The Act of September 19, 1890, c. 907, on this subject, must be held controlling at least as to any rights attempted to be created since its passage.
On May 24, 1897, the United States, by their Attorney General, filed their bill of complaint in the District Court of the Third Judicial District of New Mexico against the Rio Grande Dam & Irrigation Company, the purpose of which was to restrain the defendant from constructing a dam across the Rio Grande River in the Territory of New Mexico, and appropriating the waters of that stream for the purposes of irrigation. A temporary injunction was issued on the filing of the bill. Thereafter, and on the 19th day of June, 1897, an amended bill was filed making the Rio Grande Irrigation & Land Company, Limited, an additional defendant, the scope and purpose of the amended bill being similar to that of the original. The amended bill stated that the original defendant was a corporation organized under the laws of the Territory of New Mexico, and the new defendant a corporation organized under the laws of Great Britain. It was averred that the purpose of the original defendant, as set forth in its articles of incorporation and as avowed by it, was to construct dams across the Rio Grande River, in the Territory of New Mexico at such points as might be necessary, and thereby
to accumulate and impound waters from said river in unlimited quantities in said dams and reservoirs, and distribute the same through said canals, ditches, and pipelines.
The new defendant was charged to have become interested as lessee of, or contractor with, the original defendant. The bill further set forth that the new defendant
has attempted to exercise, and has claimed the right to exercise, all the rights, and franchises of the said original defendant, and has given out as its objects, as said agent, lessee, or assignee, as aforesaid, to construct said dams, reservoirs, ditches, and pipelines, and take and impound the water of said river, and thereby to create the largest artificial lake in the world, and to obtain control of the entire flow of the said Rio Grande, and divert and use the same for the purposes of irrigating large bodies of land, and to supply water for cities and towns, and for domestic and municipal purposes, and for milling and mechanical power; . . . that the Rio Grande receives no addition to its volume of water between the projected dam and the mouth of the Conchos River, about three hundred miles below, and that the said Rio Grande, from the point of said projected dam to the mouth of the Conchos River, throughout almost its entire course from the latter part to its mouth, flows through an exceedingly porous soil, and that the atmosphere of the section of the country through which said river flows, from the point above the dam to the Gulf of Mexico, is so dry that the evaporation proceeds with great rapidity, and that the impounding of the waters will greatly increase the evaporation, and that from these causes but little water, after it is distributed over the surface of the earth, would be returned to the river.
The bill also averred that the Rio Grande River was navigable, and had been navigated by steamboats from its mouth three hundred fifty miles, up to the Town of Roma, in the State of Texas; that it was susceptible of navigation above Roma to a point about three hundred fifty miles below El Paso, in Texas, and then, after stating that there were certain rapids or falls which there interfered with navigation, it alleged navigability from El Paso to La Joya, about one hundred miles above Elephant Butte, the place at which it was proposed to erect the principal dam, and that it had been used between those points for the floating and transportation of rafts, logs, and poles. The bill further alleged
that the impounding of the waters of said river by the construction of said dam and reservoir at said point called "Elephant Butte," about one hundred and twenty-five miles above the City of El Paso, said point being in the Territory of New Mexico, and the diversion of the said waters and the use of the same for the purposes hereinbefore mentioned, will so deplete and prevent the flow of water through the channel of said river below said dam, when so constructed, as to seriously obstruct the navigable capacity of the said river throughout its entire course from said point at Elephant Butte to its mouth.
Then, after denying that any authority had been given by the United States for the construction of said dam, it set forth the treaty stipulations between the United States and the Republic of Mexico in reference to the navigability of the Rio Grande so far as it remained a boundary between the two nations.
To this amended bill the defendants filed their joint and several pleas and answer. The pleas were principally to the effect that the site of the proposed dam was wholly within the Territory of New Mexico, and within its arid region; that, in pursuance of several acts of Congress, the Secretary of the Interior and the officers of the Geological Survey had located and segregated from the public domain a reservoir site called "38," on the river just above Elephant Butte, and another called "39," just below that point; that subsequently, in pursuance of another act of Congress, these and all other reservoir sites were thrown open to corporate and private entry; that the original defendant had applied to enter the two sites, "38" and "39;" that it was incorporated under the laws of New Mexico, and had complied with all the laws of that territory in reference to the construction of reservoirs and dams and the diversion of waters of public streams; that it had duly filed proof of its organization, its maps of survey of reservoir and canals, with the Secretary of the Interior, and had secured his approval thereof, in accordance with the laws of the United States. The answer admitted incorporation, the purpose to construct a dam and reservoir at Elephant Butte, and then proceeded:
But insofar as that portion of said bill is concerned which charges that the Rio Grande Irrigation & Land Company, Limited, is seeking to obtain control of the entire flow of said Rio Grande, and to divert and use the same, these defendants state that the entire flow of the Rio Grande during the irrigation season at the point or points where these defendants are seeking to construct reservoirs upon the same has long since been diverted, and is now owned and beneficially used by parties other than these defendants, in which diversion and appropriation of said waters these defendants have no property rights, and that neither one of the defendants is seeking or has ever sought to appropriate or divert by means of structures above referred to, or contemplated diversion, by means thereof, of any of the waters of said Rio Grande usually flowing in the bed thereof during the time when the same are usually put to beneficial use by those who have heretofore diverted the same; but, on the contrary, these defendants state that it has been their intention, and their sole intention, by means of the structures which they contemplate and which are complained of in said bill, to store, control, divert, and use only such of the waters of said stream as are not legally diverted, appropriated, used, and owned by others, and that these defendants have contemplated and now contemplate that any beneficial rights by them acquired in such stream by virtue of such structures will be very largely only so acquired to the excess, storm, and flood waters thereof now unappropriated, useless, and which go to waste.
The answer also denied that the river was susceptible of navigation, or had been navigated, above Roma, in the State of Texas, or had been used beneficially for the purposes of navigation in the Territory of New Mexico, or was susceptible of being so used; that the contemplated use of the waters would deplete the flow thereof through the channel so as to seriously obstruct the navigability of the river at any point below the proposed dam; that defendants were proposing to construct a dam and reservoir without due process of law, or that the contemplated dam and reservoir would be a violation of our treaties with Mexico. The United States filed a general replication. Defendants moved to dissolve the temporary injunction, while the government moved to have the several pleas set down for argument as to their sufficiency as a defense. Several affidavits and documents were filed by the respective parties. On July 31, 1897, the matters came on for hearing, whereupon the court entered a decree which recited that the parties appeared by their counsel
under the rule heretofore made upon the defendant Rio Grande Dam & Irrigation Company to show cause, if any it had, why the injunction heretofore granted, restraining it from maintaining and erecting a dam in the Rio Grande River at a point called Elephant Butte, fully described in the original and amended bills filed herein and in said order, should not be continued, and the said complainant, the United States of America, having filed an amended bill in said cause, making the Rio Grande Irrigation & Land Company, Limited, a party thereunder, and the said defendant, in answer to said amended bill, having filed a special plea in bar, and having also answered said amended bill, and also filed a motion to dissolve the injunction and to dismiss the original and amended bills so filed by complainant herein, and the complainant thereupon having filed its motion to set down defendants’ pleas for argument as to their sufficiency as defense to said suit as a matter of law, and the court, having heard the arguments of counsel and having read the affidavits, extracts from geological reports, agricultural reports, reports of engineers and of the Secretary of War, histories, and other sources of information, and having had submitted to it an official map of the Territory of New Mexico and of the United States of America, showing the source, trend, course, and mouth of the Rio Grande River in New Mexico and throughout the United States, and being fully advised thereby, doth take judicial notice of the fact, and doth thereby determine that the Rio Grande River is not navigable within the Territory of New Mexico, and doth find as a matter of law that said amended bill does not state a case entitling the complainant to the relief asked for in the prayer of said amended bill, and that the same is without equity; and, the complainant having further declined to amend said bill, the court doth order, adjudge, and decree that the said injunction, heretofore issued herein, be dissolved, and that said cause be, and the same hereby is, dismissed, and that the defendants have and recover their reasonable costs, herein to be taxed against complainant.
An appeal was taken to the supreme court of the territory, which, on January 5, 1898, affirmed the decree. From this affirmance, the United States appealed to this Court.