ered evidence, might, and probably would, change the result of the determination of the court as to the facts in the case. (14) The court erred in refusing to make findings of fact asked for by the plaintiff numbered 1, 2, and 21."

The judge of the district court who tried this case made the following findings of fact:

"(1) 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 navigated only between Rio Grande City and Brownsville, Texas, a distance of 177 miles, by such sinuosities.

"(2) 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 small vessels 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.

"(3) 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.

"(4) The scarcity of water in said river when 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 drying up of the following named tributaries of such river, lying either in Texas or Mexico, to wit, Elm Creek, Las Moras, Piedras Pintas, Sycamore, San Felipe, Escondido San Diego, Las Bacas, Trientauno, Santa Carlo, Cienegas, and Salado, all referred to in the report of Maj. 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.

"(5) 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 a permanent change in the amount of rainfall in said region, or the amount of such effect of such diminution of rainfall and drying up of streams has had upon the navigable capacity of said river since the commencement of this suit in May, 1897.

"(6) At the measuring station at San Marcial, forty miles above Elephant Butte, the Rio Grande is shown from evidence and measurements filed in this case to be largely a torrential stream, varying from dry bed to floods of considerable size and duration, and this torrential flow characterizes its entire course through New Mexico.

"(7) In its course, both in Colorado and New Mexico, a large percentage of its waters are constantly lost by causes not accurately determined, but generally classed as seepage and evaporation; and, between San Marcial, New Mexico, and El Paso, Texas, a distance of three hundred miles, measured by the sinuosities of the river, it is shown that the percentage of loss from such causes is about one-third of the entire volume of such water; and at various other points in New Mexico such losses, more or less equal in percentage, are also shown to

occur.

"(8) While there are no measurements from which the percentage of loss by evaporation from the volume of water after the same passes El Paso, Texas, can be definitely determined, yet the general character of the bed, banks, and formation and soil is shown to be the same general character as that portion of such stream lying between San Marcial and El Paso, where such large losses in volume have been accurately determined; and that for a distance of four hundred miles below El Paso, Texas, measured by the sinuosities of the river, to Presidio del Norte, such seepage and evaporation continues to diminish the volume of such water.

"(9) Between Elephant Butte, the point where defendants proposed to divert the waters of such stream, and Presidio del Norte, a distance of six hundred and forty miles by the sinuosities of the stream, there are no living tributaries to said Rio Grande, and the waters of such stream are not re-enforced substantially between such points by any regular flow or tributary, and there is no perennial flow of the Rio Grande at Presidio del Norte.

"(10) The first perennial tributary of the Rio Grande below Elephant Butte is the Conchos, which comes into the Rio Grande at Presidio del Norte. The Conchos is a perennial stream, rising in the mountains of Northern Mexico, and flowing several hundred miles northerly into the Rio Grande. In season it is a torrential stream of great magnitude, and at all times carries a considerable quantity of water. A cross section of the Rio Grande near and just below where the Conchos joins it, shows an area at least twenty-five times as great as the area of a cross section of the Rio Grande just above the mouth of the Conchos, measured to the highest water mark known, so far as disclosed by the evidence, in thirty-three years, the carrying capacity of the lower cross section being variously estimated at from sixteen to twentyfive times as great as the upper cross section.

"(11) It has only been shown by the evidence that the waters in the Rio Grande bed passed Presidio del Norte, the mouth of the Conchos, in considerable quantities upon one occasion, that is, during the month of May, 1897; but it is fairly inferable from the testimony that such waters have so passed such point on other occasions in such quantities. No evidence has been offered as to the amount

then so passing the mouth of the Conchos in the Rio Grande bed except that of one witness to the effect that the height of the same over a ford some distance below the mouth of the Conchos (the dimensions of the river at that point not being shown) was increased about three feet, and the duration of its passage at such height was for about eight or ten days, and except some estimates based upon the surface area of the cross sections referred to, showing the flow to be 3,250 cubic feet per second; and I find that the evidence fails to show at the period mentioned the waters so flowing by the mouth of the Conchos affected the height of the river at Laredo, Texas, to any considerable extent.

"(12) It appears from the evidence that the Rio Grande was navigated in a common rowboat drawing about six inches of water during the winter season of 1893-94, from El Paso, Texas, to the mouth of the Conchos, a distance estimated at 400 miles by the sinuosities of the stream, at a stage of water from three to three and one-half feet deep at El Paso, Texas, at the time of starting, said trip occupying twenty-one days, and without finding any obstructions in said stream except scarcity of water for the last forty miles above the mouth of the Conchos; that, after remaining a period of eighteen days in the vicinity of Presidio del Norte, the party making said trip embarked upon water said to have been furnished from the Rio Conchos, and continued to Del Rio, Texas, a distance of 562 miles, by the sinuosities of the stream. "(13) There is no evidence in the case tending to show that there is any obstruction to the free and uninterrupted flow of the Rio Grande from Del Rio, Texas, to Rio Grande City, Texas.

"(14) There is no evidence in the case tending to show that water which has reached Del Rio, Texas, would not uninterruptedly continue to flow to Rio Grande City, Texas, except such portions thereof as may be lost by seepage or evaporation.

(15) The Conchos river enters the Rio Grande from the Mexican side at nearly right angles. On the lower or southerly side of the Conchos there is elevated ground, upon which is situated the village of Presidio del Norte. On the upper, or northerly, side of the Conchos, and on the westerly, or Mexican, bank of the Rio Grande, the land is low, and subject to much overflow. On the American side of the Rio Grande, at the mouth of the Conchos, the banks are high, and not subject to overflow.

"(16) The distance, by the sinuosities of the river, between Presidio del Norte and Rio Grande City is something over 900 miles, and the bed of the stream between such points appears to be practically a succession of basins or valleys of greater or less extent, and of the same character, and affording the same facilities for absorbing the water, as the valleys above El Paso, or those above the

mouth of the Conchos, and I find that large amounts of water flowing between the Conchos and Rio Grande City are lost between said points by evaporation and seepage.

"(17) The character of the formation in the basins or valleys of the Rio Grande at the only point where the same has been sounded to any great depth-that is, by the boundary commission at El Paso, Texasshow the depth of sand and gravel to be at least sixty feet, and I can see no reason why the other valleys and basins along the course of the Rio Grande should not show the same formation to at least the same depth, the surface indications and appearance being substantially the same throughout its length.

"(18) The watershed of the Rio Grande and its tributaries above Elephant Butte is approximately 25,000 square miles in extent. The watershed between Elephant Butte and El Paso is approximately 5,700 square miles. The watershed, from Elephant Butte to Rio Grande City, of the Rio Grande and its tributaries, after deducting the area of such basins as may not find an outlet into the stream, is, approximately, 170,000 square miles. The source of supply of the water flowing past Rio Grande City at the head of navigation is largely this comparatively enormous watershed of 170,000 square miles below Elephant Butte, feeding with tropical rains the Conchos and San Juan particularly, rising far south in the mountains of Mexico, and flowing north into the Rio Grande, and also affording a supply for the Pecos, Devil's River, the Good Enough, and other perennial streams, as well as the decreased, but still flowing, waters of the San Felipe and Salado, and at times filling with floods the now dry beds of the former perennial streams heretofore referred to, as well as many smaller streams not named.

"(19) Records have been kept of the flow of the water passing El Paso, Texas, for the part of the year 1889 and for the years 1890, 1891, 1892, part of 1893, 1897, 1898, and part of 1899. No records were kept for any other years. These records so kept show the amount of water passing El Paso for said years, respectively, to be as follows, viz.:

(23) The proposed dam and reservoir of the defendants would contain 11,036,722,000 cubic feet of water, or 253,370 acre feet of water.

"(24) The defendants propose to irrigate 230,000 acres of valley and 300,000 acres of mesa lands; in all, 530,000 acres. In accordance with the amount of water used in Colorado and New Mexico for irrigating land, it will require 954,000 acre feet of water to irrigate that quantity of land proposed to be irrigated by defendants, or from three to four times the capacity of the said reservoir.

"(25) The testimony shows the following to be the time it would have taken all the flow of the Rio Grande to have filled the Elephant Butte reservoir, supposing it to hold 253,000 acre feet, during the maximum flow in each year from El Paso gauging station, viz.:

1897. From record of El Paso gauging station, all surplus flow above 500 second feet, from April 13th to May 11th..

1898. Same condition,

June 20th

29

from April 17th to

65

1899. During whole season only 6,500 acre feet passed El Paso gauging station above 500 second feet.

"(27) That the evidence shows that cross sections of the Rio Grande were taken by a member of the boundary commission to the extent of three or four per mile for the entire distance from Rio Grande City to Brownsville, Texas, and that the two cross sections hereinbefore referred to were a fair, indication of the contour of the Rio Grande between those points.

Sec

"(28) In attempting to arrive at a conclusion in this case, I have made some computation based partially upon known data, and partially upon probabilities arising from the evidence. In such computation I have assumed the following conditions: First. It appears by comparison of the tables of measurements at the gauging stations of San Marcial and El Paso that there is no material flattening or tailing out of the floods in the Rio Grande. If this remains true throughout the entire course of the river, a body of water passing El Paso would reach Rio Grande City, if at all, in practically the same form as to length and height as at El Paso, less losses between those points. ond. It seems probable, from the conditions of the bed and banks of the stream, and the climate of the country through which it passes, that any flow of less than 2,000 second feet at El Paso, or 3,000 second feet at San Marcial, cannot possibly have any effect on the river at the head of navigation. It also seems probable that only such flows as are above this amount, and are sustained for a considerable period, could reach the head of navigation in substantial quantities. Third. It seems probable that loss by seepage and evaporation will be as great between El Paso and Presidio del Norte as between San Marcial and El Paso. The loss may be greater, owing to greater distance. Fourth. From Presidio to Rio Grande City flood waters from El Paso would encounter in the bed the perennial waters known to exist there. To what extent they furnish a water table for these flood waters to travel upon is unknown, but I have assumed it in this computation that losses by seepage and evapora

tion are thereby lessened, and have taken an arbitrary twenty per cent. as representing the probable loss from such causes. Fifth. It seems probable that a flood passing El Paso would reach Rio Grande City, if at all, in from 15 to 25 days, assuming the river to have comparatively a uniform fall between those points. Sixth. It appears from the evidence that a rise of two feet above low water between Rio Grande City and Brownsville is necessary to make navigation practicable; and these waters usually flowing down to that point, if at all, at a season when other supplies are low, I assume a rise of two feet to be necessary to be of any substantial benefit to navigation. Seventh. Assuming these conditions, I have prepared the following table:

the above results show a contribution from floods passing El Paso to the navigable capacity at Rio Grande City to the extent of a rise of two feet during four of the ten years mentioned when 33% per cent. is deducted for loss between El Paso and Presidio, and during three years out of the ten years (counting 1892) when 45 per cent. is deducted between the same points. It is to be further observed that no account is taken in above computation for variations in the height of floods at El Paso, but the results simply show the average height a given amount of water passing El Paso, less deductions for probable loss, would raise the river at Rio Grande City for the same number of days it was passing El Paso. If these variations continue from El Paso to Rio