may not question such appropriation, unless thereby the navigability of the Hudson be disturbed. On the other hand, if the State of New York should, even at a place above the limits of navigability, by appropriation for any domestic purposes, diminish the volume of waters, which, flowing into the Hudson, make it a navigable stream, to such an extent as to destroy its navigability, undoubtedly the jurisdiction of the National Government would arise and its power to restrain such appropriation be unquestioned; and within the purview of this section it would become the right of the Attorney General to institute proceedings to restrain such appropriation.

Without pursuing this inquiry further we are of the opinion that there was error in the conclusions of the lower courts; that the decree must be

Reversed and the case remanded with instructions to set aside the decree of dismissal, and to order an inquiry into the question whether the intended acts of the defendants in the construction of a dam and in appropriating the waters of the Rio Grande will substantially diminish the navigability of that stream within the limits of present navigability, and if so, to enter a decree restraining those acts to the extent that they will so diminish.

Mr. Justice Gray and Mr. Justice McKenna were not present at the argument, and took no part in the decision.

SECOND TRIAL OF THE CASE.

MANDATES.

Mandate of the Supreme Court of the United States to the Supreme Court of the Territory of New Mexico, June 13, 1899, filed July 5, 1899.1

UNITED STATES OF AMERICA, 88:

The President of the United States of America to the Honorable the Judges of the Supreme Court of the Territory of New Mexico, Greetings:

[SEAL]

Whereas lately in the Supreme Court of the Territory of New Mexico, before you or some of you in a cause between The United States, appellant, and the Rio Grande Dam & Irrigation Company, and The Rio Grande Irrigation & Land Company, appellees, wherein the decree of said supreme court, entered in said cause on the 25th day of August, A. D., 1897, is in the following words, viz:

"This cause having been argued and submitted to and taken under advisement by the court at a former day of the present term, and the court, being now sufficiently advised in the premises, announces its decision by Chief Justice Smith, Associate Justices Collier, Hamilton, and Laughlin concurring, Associate Justice Bantz not sitting, affirming the judgment of the court below, for reasons stated in open court and that will appear more fully in the opinion to be filed herein. It is therefore ordered, adjudged, and decreed by the court that the judgment of the district court of the Third Judicial District in the Territory of New Mexico, whence this cause came into this court, be, and the same hereby is, affirmed, and in accordance with said judgment of said district court it is ordered, adjudged, and decreed that said injunction, herefore issued herein, be dissolved, and that said cause be, and the same hereby is, dismissed and that said defendants do have and recover their reasonable costs herein, as well in the court below as in this court, to be taxed, for which let execution issue; and thereupon the appellant herein, by her attorney, William B. Childers, Esq., prays an appeal to the Supreme Court of the United States from the judgment and decision of this court. It is therefore ordered that appellant herein be, and hereby is, allowed an appeal to the Supreme Court of the United States from this judgment and decision."

as by the inspection of the transcript of the record of the said Supreme Court, which was brought into the Supreme Court of the United States by virtue of an appeal, agreeably to the act of Congress in such case made and provided, fully and at large appears and

1 [Extract from the record of the proceedings before the Supreme Court of the Territory of New Mexico, July 5, 1899. See Transcript of record before the Supreme Court of the United States, October Term, 1909, No. 49, page 92.-Agent's note.]

42

Whereas in the present term of October, in the year of our Lord one thousand eight hundred and ninety-eight, the said cause came on to be heard before the said supreme court, on the said transcript of record, and was argued by counsel:

On consideration whereof it is now here ordered, adjudged, and decreed by this court that the decree of the said supreme court in this cause be, and the same is hereby, reversed. And

It is further ordered, that this cause be, and the same is hereby, remanded to the said supreme court with directions to set aside the decree of dismissal, and to order an inquiry into the question whether the intended acts of the defendants in the construction of a dam and in appropriating the waters of the Rio Grande will substantially diminish the navigability of that stream within the limits of present navigability, and if so, to enter a decree restraining those acts to the extent that they will so diminish. May 22, 1899.

You, therefore, are hereby commanded that such further proceedings be had in said cause, in conformity with the opinion and decree of this court, as according to right and justice, and the laws of the United States, ought to be had, the said appeal notwithstanding. Witness the Hon. Melville W. Fuller, Chief Justice of the United States, the 13th day of June, in the year of our Lord one thousand eight hundred and ninety-nine.

Clerk of the Supreme Court of the United States.

Which said mandate was and is endorsed as follows, to wit:

"Supreme Court of the United States. No. 215, October Term, 1898. The United States vs. The Rio Grande Dam & Irrigation Co., et al. Mandate. Filed in my office this July 5th, 1899. Jose D. Sena, clerk."

Mandate of the Supreme Court of the Territory of New Mexico to the District Court of the Third Judicial District of the Territory of New Mexico, July 14, 1899, filed July 15, 1899.1

The Territory of New Mexico to the district court sitting within and for the county of third judicial district, greeting:

Whereas in a certain cause lately pending before you, wherein The United States of America was appellant and The Rio Grande Dam & Irrigation Company and The Rio Grande Irrigation & Land Company, limited, were appellees, by your consideration in that behalf, judgment was entered against the said appellant; and

Whereas the said cause and judgment were afterwards brought into our supreme court for review by appeal, whereupon such pro

1 [Extract from the record of the proceedings before the District Court of the Third Judicial District of New Mexico, July 15, 1899. See Transcript of record before the Supreme Court of the United States, October Term, 1901, No. 239, page 1. See also, Transcript of record before the Supreme Court of the United States, October Term, 1909, No. 49, page 28.-Agent's note.]

ceedings were had in said supreme court that at the July, 1897, term thereof, on the 25th day of August, 1897, it was considered that the judgment aforesaid, by you in form given, be affirmed, and that injunction heretofore issued be dismissed; and

Whereas said cause and judgment was afterwards taken by appeal to the Supreme Court of the United States, where by consideration of said court at its October, 1898, term it was considered that the judgment aforesaid be reversed and that said cause be remanded to this court with instructions to set aside the decree of dismissal and order an inquiry into the question whether the intended acts of the defendants in the construction of a dam and the appropriation of the waters of the Rio Grande will substantially diminish the navigability of that stream within the limits of the present navigability, and if so to enter a decree restraining those acts to the extent that they will so diminish.

Now, therefore, you are hereby commanded to reinstate said cause upon your docket and set aside said decree of dismissal therein, and to reinstate the bill of complaint, and to proceed in accordance with the terms of said mandate of the Supreme Court of the United States.

Witness, the Honorable William J. Mills, chief justice of the supreme court of the Territory of New Mexico, and the seal of said court, this 14th day of July, A. D. 1899.

[SEAL.]

(Signed)

Which mandate is endorsed in words

to wit:

JOSE D. SENA, Clerk.

and figures as follows,

1243. Filed in my office July 15, 1899. James P. Mitchell, clerk.

PROCEEDINGS IN THE DISTRICT COURT.

Findings of Fact, January 1, 1900, filed January 2, 1900.1

In the District Court of the Third Judicial District of the Territory of New Mexico.

From the evidence in this case the court makes the following findings of facts:

1 [Extract from the record of the proceedings before the District Court, Third Judicial District, Territory of New Mexico, January, 1900. See transcript of record before the Supreme Court of the United States, October Term, 1901, No. 239, page 12.

These find

ings of fact are also printed in the British Memorial, as Annex VII, pages 131 to 146.Agent's note.]

I.

The Rio Grande is navigable only between the American points of Rio Grande City and the mouth of such river, a distance of 262 miles, measured by the sinuosities of the stream. It is navigable only between Rio Grande City and Brownsville, Tex., a distance of 177 miles by such sinuosities.

II.

That such navigation began to decline on account of scarcity of water in such river in 1888, and has continued to so decline until at the present time the same consists of occasional trips of one small vessel of about 100 tons capacity. Such trips are irregular and uncertain, and so spasmodic as to time as to render such navigation of small benefit to commerce between points reached thereby.

III.

That the decline of such navigation has been occasioned by a gradual decline of the navigable capacity of such river and the increased difficulty of navigating the same on account of scarcity of water, compelling the substitution from time to time of boats of less capacity.

IV.

The scarity of water in said river where it is navigable is due largely to a drought of great severity, which has continued, with only occasional interruptions, since about 1887, and has extended over a vast area of country, several hundred miles in width and length, along the general course of said river from its mouth up, and which has both affected portions of Texas and Mexico, and to the drying up of the following-named tributaries of such river, lying either in Texas or Mexico, to wit, Elm Creek, Los Moras, Piedras Pintas, Sycamore, San Felipe, Escondido, San Diego, Las Bacas, Trientauno, Santa Carlo, Cienagas, and Salado, all referred to in the report of Major Emory as well as described by the witnesses in this case, and all of which were from ten to eighteen years ago bold running streams.

V.

There is no evidence from which the court can estimate the extent of the diminution of such rainfall, or from which it can determine that there has been any permanent change in the amount of rainfall in said region, or the amount of such effect of such diminution in rainfall and drying up of streams has had upon the navigable capacity of said river since the commencement of this suit in May, 1897.