attorneys of record upon whom service was made. It is but fair to Mr. Fall to presume from Mr. Boyd's affidavit that he did forward the copy of the supplemental complaint served upon him to his cocounsel, Mr. McGowan, as soon as the same was delivered to him, as the affidavit says it was not received until after April 7, 1903; this being the same date on which the same was served upon Mr. Fall. However that may be, the court below distinctly found that no irregularity had intervened in the rendition of the decree, and overruled the motion for that reason, and we see no error in the action of the court.

From the views above expressed, it is apparent that it is not necessary to consider the answer tendered with the motion, and the filing of the same was refused for the same reason that justified the overruling of the motion.

Appellant insists that they were restrained from constructing their irrigation system by the United States, and therefore no right of forfeiture existed, but the record before us shows that the injunction originally granted was dissolved July 30, 1897, and was never reinstated. The injunction granted upon the declaration of forfeiture was more than five years after the dissolution of the former injunction. This contention, therefore, does not appear to be well founded.

There being no error presented by the record in the case, the judgment of the court below will be affirmed. It is so ordered. William J. Mills, C. J., William H. Pope, A. J., Edward A. Mann, A. J., Ira A. Abbott, A. J., concur.

Parker, A. J., having heard the case below did not participate in this decision.

Order granting an appeal to the Supreme Court of the United States, August 29, 1906.1

THE UNITED STATES OF AMERICA, APPELLEE,

V.

THE RIO GRANDE DAM & IRRIGATION COMPANY ET AL.,

appellants.

No. 1075.

APPEAL FROM THIRD JUDICIAL DISTRICT COURT.

Now on to wit, the 29th day of August, A. D. 1906, it is ordered that the appeal above prayed for be allowed from the said decree and judgment of the court entered in said above entitled cause on the 2nd day of March, A. D. 1906. And it is further ordered that

1 [Extract from the record of the proceedings before the Supreme Court of the Territory of New Mexico, August 29, 1906. See Transcript of record before the Supreme Court of the United States, October Term, 1909, No. 49, page 107.-Agent's note.]

the said appellants have leave to file additional assignments of error if they desire, and make the same a part of the record in said cause at any time before the final authentication of the record in said cause by the clerk, or at any time after the said cause may be docketed in the Supreme Court of the United States. And it is further ordered that citations issue in said cause to be served upon the counsel for the said appellee as required by the statute and rules of the court.

PROCEEDINGS IN THE SUPREME COURT OF THE UNITED STATES.

Opinion of the Court, December 13, 1909.1

[215 U. S. 266. October Term, 1909.]

RIO GRANDE DAM & IRRIGATION COMPANY

V.

UNITED STATES.

APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF NEW MEXICO.

No. 49. Argued December 3, 1909.-Decided December 13, 1909.

The general object of this suit-which was brought by the United States in one of the courts of New Mexico on the twenty-fourth day of May, 1897—was to obtain an injunction to prevent the Rio Grande Dam and Irrigation Company from constructing and maintaining a dam across, and a reservoir over and near, the Rio Grande River at a certain point in that Territory. In the court of original jurisdiction the suit was dismissed and the dismissal was affirmed by the Supreme Court of the Territory; but that judgment was reversed by this court, with instructions to set aside the decree of dismissal and to inquire whether the intended acts of the defendants in the construction of a dam and appropriating the waters of the Rio Grande would 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 would so diminish. (United States v. Rio Grande Irrigation Company. 174 U. S. 690, 708, 710.) The mandate of this court to that effect was executed by the Supreme Court of the Territory, and the cause

1 [The reporter's syllabus and synopsis of argument of counsel is omitted.-Agent's note.]

went back to the court of original jurisdiction with directions to proceed in accordance with that mandate.

The cause was again heard in the court of original jurisdiction, that court denying a motion, in behalf of the United States, for a continuance in order that it might more fully prepare its case. The suit, on final hearing, was again dismissed, and that judgment was sustained by the Supreme Court of the Territory. But this court reversed the decree of the latter court and remanded the cause with instructions to reverse the decree of the court of original jurisdiction, and with directions "to grant leave to both sides to adduce further evidence." United States v. Rio Grande Dam & Irrigation Co., 184 U. S. 416, 424, 425. The mandate of this court to the above effect was executed, and the case was again placed on the docket of the court of original jurisdiction.

For a full statement of the issues and facts up to this point in the litigation reference is made to the opinions of this court as reported in 174 U. S. 690, and 184 U. S. 416.

The record shows that on the seventh day of April, 1903—after the last decision in this court-the United States, by leave of the court of original jurisdiction, filed a supplemental complaint, which set forth the then status of the case. That complaint referred to the defendant's plea, stating that it had complied with the requirements of the act of Congress approved March 3, 1891, repealing timber culture laws and for other purposes, 26 Stat. 1095, 1102, c. 561, Secs. 20, 21, and "had acquired a right to construct said dam and divert said water by reason of compliance with the terms of said Act." It then proceeded:

"II. Plaintiff further alleges that defendant's plea above referred to claiming a right to construct said dam under the said act of Congress, approved March 3d, 1891, c. 561, was filed on June 26, A. D. 1897, and that its articles of incorporation and proof of its incorporation, and the map and survey of its reservoir had been filed and approved by the Secretary of the Interior long prior to the filing of said plea, as appears from an inspection of said plea itself. "III. Plaintiff further alleges that in and by section twenty of the said act of March 3d, 1891, above referred to, it was provided that if any section of said canal, or ditch, shall not be completed within five years after the location of said section, the rights herein granted shall be forfeited as to any uncompleted section of said canal, ditch, or reservoir, to the extent that the same is not completed at the date of the forfeiture,' and that although five years since the filing and approval of said articles of incorporation, proofs of organization, maps and surveys have long since elapsed, defendant has not complied with the requirements of said act, but has failed to construct or complete within the period of five years after the location of said canal and reservoir any part or section of the same, and the same has by reason thereof become forfeited.

"IV. Plaintiff further alleges that during all of said time, except from May 24th, 1897, to 1897, the date when the temporary injunction was dissolved, the said defendants have been in no wise hindered, restrained, or prevented from complying with the provisions of said act by any judicial order or process whatsoever.

"V. Wherefore, plaintiff prays to be permitted to file this supplemental bill of complaint, and that the same be considered upon the hearing of this cause, and that the defendants be decreed to have forfeited all the rights they may have had, or claimed under and by virtue of said act of March 3, 1891, not hereby admitting, however, that the defendants ever acquired any rights under and by virtue of said act. Plaintiff further prays that the injunction, and all other relief prayed for in and by said amended bill of complaint, be granted, and that said injunction be made perpetual, and that it have and recover its costs expended in this cause, and thus plaintiff will ever pray."

A copy of this supplemental complaint was served on the attorney of the defendants on the day (April 7, 1903) it was filed. More than forty days thereafter, on the twenty-first day of May, 1903, a decree was entered finding the allegations of the supplemental complaint-no demurrer, answer, or other pleading having been filed thereto "are confessed and are true." The court further found "that the articles of incorporation and the map, survey of the reservoir of the defendant corporation, the Rio Grande Dam and Irrigation Company, were filed with the Secretary of the Interior prior to the twenty-sixth day of June, A. D. 1897, and were, prior to said date, approved by the Secretary of the Interior; and it further finds that the said defendants have not completed its said reservoir or said ditch, or any section thereof, within five years after the location of the said reservoir and its said ditch line, or within five years after the approval of the same by the Secretary of the Interior; and the court further finds that five years since the filing and approval of the said articles of incorporation, proof of organization, maps and surveys of the said reservoir and ditch line of the defendants had long since elapsed prior to the filing of the said supplemental bill, and that the defendants had not complied with the requirements of the act of Congress approved March 3, 1901, under which the same were filed, but have failed to construct or complete within the period of five years after the location of the said canal and reservoir any part or section of the same." And it was adjudged "that the rights of the said defendants, or either of them, to so construct and complete the said reservoir and said ditch, or any part thereof, under and by virtue of the said act of Congress of March 3, 1901, be, and the same are hereby, declared to be forfeited. It is further ordered, adjudged, and decreed by the court by reason of the premises that an injunction be, and the same is hereby, granted against the

said defendants, enjoining them from constructing or attempting to construct the said reservoir, or any part thereof, and that the same be made perpetual." (By an amended decree filed October 5, 1903, and entered nunc pro tunc as of May 21, 1903, the date given as March 3, 1901, in the decree was made to read March 3, 1891, in order to conform to the actual date of the act of Congress intended to be referred to both by the United States and by the court.)

A statute of New Mexico, in force at the time and before the above decree was rendered, provided: "Every pleading, subsequent to the complaint, shall be filed and served within twenty days after service of the pleading to which it is an answer, demurrer, or reply." Compiled Laws of New Mexico, 1907, Title 33; Code of Civil Procedure, c. 1, art. 4, sub-sec. 46.

On the thirty-first of October, 1903, the defendants moved the court to vacate the order allowing the supplemental bill to be filed, and that they be permitted to come in and answer the supplemental bill. This motion was denied and upon appeal to the Supreme Court of the Territory the action of the trial court on this point was sustained. The former court, at the same time, March 2, 1906, adjudged that the right of the defendants, or either of them, to construct and complete its reservoir and ditch, or any part thereof, within the time required by the act of Congress of March 3, 1901, was forfeited. It was also adjudged that the defendants be enjoined from constructing, or attempting to construct, the said reservoir or any part thereof. The injunction was made perpetual. From that judgment the present appeal was prosecuted. Mr. William W. Bride and Mr. Frederick S. Tyler, with whom Mr. Charles A. Douglas was on the brief, for plaintiffs in error:

*

*

*

*

The Solicitor General for the United States, appellee.

Mr. Justice Harlan, after making the foregoing statement, delivered the opinion of the court.

We perceive no error in the judgment now under review. The main contention of the defendants is that it was error to permit the United States to file its supplemental bill. We do not accept this view of the trial court's duty. When the cause was last here the court expressed the conviction that if the case was finally disposed of on the record as it then was great wrong might be done to the United States and to all interested in preserving the navigability of the Rio Grande. Hence, the cause was sent back that each side might adduce further evidence, if they had any to adduce. When the Government asked to file its supplemental bill the suit was of course reinstated on the docket of the court of original jurisdiction

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