United States v. Rio Grande Dam & Irrigation Co., 184 U.S. 416 (1902)

UNITED STATES v. RIO GRANDE DAM AND IRRIGATION COMPANY.

The motion made in the court below on behalf of the United States for a continuance of this cause and the application for a rehearing were addressed to the discretion of the trial court, and this court cannot reverse the decree below merely upon the ground that the trial court erred in its denial of those motions; but, as it is quite clear that the record doesnot contain evidence of a material character, and that the absence of such evidence is due to the action of the trial court in not giving sufficient time to the Government to prepare its case, this court cannot resist the conviction that if it proceeds to a final decree upon the present record great wrong may be done; and it reverses the decree below, without considering the merits, and remands the case with orders that leave should be granted to both sides to adduce further evidence.

The case is stated in the opinion of the court.

Mr. Marsden C. Burch for the United States, appellants.

Mr. J. H. McGowan for appellees.

UNITED STATES t’. RIO GRANDE IRRIGATION CO. 41T

Mr . Justi ce Harlan delivered the opinion of the court.

This suit presents a contest between the United States and the appellee corporations as to the right asserted by the latter to construct over and near the Rio Grande a certain dam and reservoir for the purpose of appropriating the waters of that river in their private business.

By the seventh article of the treatv of Februarv 2, 1848, between the United States and the Republic of Mexico it is provided that “ the river Gila and the part of the Rio Bravo del Norte lying below the southern boundary of New Mexico, bemg> agreeably to the fifth article, divided in the middle between the two Republics, the navigation of the Gila and of the Bravo 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 ; not even for the purpose of favoring new methods of navigation. • • . The stipulations contained in the present article shall not impair the territorial rights of either Republic within its established limits.” 9 Stat. 928. And by the fourth article of the treaty of December 30, 1853, between the same countries, it was further provided that “ the several provisions, stipulations and restrictions contained in the seventh article of the treaty of Guadalupe Hidalgo shall remain in force only so far as regards the Rio Bravo del Norte, below the initial of the said boundary provided in the first article of this treaty, that is to say, below the intersection of the 31° 47' 30" parallel of a.titude, with the boundary line established by the late treaty ivi in g said river from its mouth upwards, according to the htth article of the treaty of Guadalupe.” 10 Stat. 1034. . &am, by a convention between the United States and Mexico, concluded December 26, 1890, provision was made for an tion^^011^ b°undary commission, empowered, upon applican y t e local authorities, to inquire whether any works were mg constructed on the Rio Grande which were forbidden by reaty stipulations. 26 Stat. 1512.

ust before the last named convention, Congress, by the act

These treaties with the above and other acts of Congress being in force, the present suit was brought, May 24, 1897, in the District Court for the Third Judicial District of New Mexico—the plaintiff being the United States of America, and the original defendant being the Rio Grande Dam and Irrigation Company, a corporation of that Territory. By an amended bill, the Rio Grande Irrigation and Land Company—a British corporation doing business in the Territory of New Mexico was a o made defendant. The latter corporation, it is alleged, was organized as an adjunct and agent of the New Mexico corporation.

The court of original jurisdiction said it was a fact of which it could take judicial notice, and it adjudged, that the Rio Grande was not navigable within the Territory of New Mexico, and it dissolved the injunction theretofore granted against the defendants, and dismissed the suit. Upon appeal to the Supreme Court of the Territory that decree was affirmed, August 24, 1890.

The case was then brought here by appeal. This court in its opinion rendered May 22, 1899, among other things said that to assert that Congress intended by its legislation “ to confer upon 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, is a construction which cannot be tolerated. It ignores the spirit of the legislation and carries the statute to the verge of the letter and far beyond what under the circumstances of the case must be held to have been the intent of Congress.” United States v.

Grande Dam and Irrigation Company, 174 U. S. 690, 708,

eferring especially to the above act of September 19, 1890, e court also said: “It is urged that the true construcion of this act limits its applicability to obstructions in the navigable portion of a navigable stream, and that as it appears a a though the Rio Grande may be navigable for a certain is ance above its mouth, it is not navigable in the Territory of ew exico, this statute has no applicability. The language ^general, and must be given full scope. It is not a prohibition naviZhi Structi°.11 to navigation, but any obstruction to the

The decree of the Supreme Court of the Territory was reversed by this court, and the cause was 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.”

The mandate of this court, based upon its final order of May 22, 1899, was issued June 24,1899. On the 14th of July, 1899, the Supreme Court of the Territory remanded the cause to the court of original jurisdiction to be there proceeded with in accordance with our mandate.

On the 5th day of August, 1899, the District Court heard, at chambers, an application of the defendants, based on notice to the United States, to set the cause for final hearing upon evidence taken under the mandate of the Supreme Court of t e Territory. That application was sustained, and the cause was set for final hearing on the 1st day of November, 1899.

In support of its motion for continuance, the Government filed the affidavit of its attorney, Mr. Burch, who was specially charged with the duty of representing its interests in this litigation. That affidavit is too lengthy to be embodied in this opinion. It is sufficient to say that it fully supported the grounds of the motion made by the Government for further time.

he motion for a continuance was sustained only so far as to x ecember 12, 1899, as the date for the final hearing of the cause. The hearing was commenced on the latter day, and continued from day to day until December 21, 1899, when the cause was taken under advisement. On the 2d day of January, 900, a finding of facts was filed in the court. In the last it was stated “ that the intended acts e efendants in the construction of a dam or dams, or rervoirs, and in appropriating the waters of the Rio Grande, withn0\SUbSta-ntially diminish the navigability of that stream dor d1 the present navigability.” The court ore a ecree to be prepared dismissing the bill.

The motion for rehearing was denied, and by a final order, entered January 9, 1900, the bill was dismissed. From that order the present appeal was prosecuted.

At the argument of the cause our attention was called to the action of the District Court in setting the cause for final hearing at a date so early as the first day of November, 1899; to the denial of the motion made on behalf of the United States on the 17th of October, 1899, to extend the time for final hearing to February 5, 1900; and to the order denying the motion, made after the facts were found but before final decree, for a rehearing. The making of the last order was specially assigned for error.

The inquiry which this court directed to be made, namely, whether the intended acts of the defendants in the construction of a dam and in appropriating the waters of the Rio Grande would substantially diminish the navigability of that stream within the limits of present navigability was not only of great importance, but was one that could not properly be made and concluded within the time ordinarily required for the preparation of an equity cause for final hearing. We think that the District Court, upon the showing made by the Government, might well have granted the motion to postpone the final hearing to a date later than that fixed. We make the same observations in reference to the motion for a rehearing in respect of the facts to be specially found, supported by affidavits as to newly discovered evidence, and made before the final decree was entered. The evidence set forth in those affidavits, if > had been brought before the court, would, we think, have ma terially strengthened the case of the United States.

But there are other considerations which may be properly made the basis for the reversal of the decree to the end that injustice may not be done. As upon this appeal in equity the whole case is before us, we can render such decree as under all the circumstances may be proper. Ridings n . Johnson, 128 U. S. 212, 218. If it appears that injustice may be done by proceeding to a final decree upon the record as it is presented to us, we have the power to forbear a determination of the merits and remand the cause for further preparation.

In Estho v. Lear, 7 Pet. 130-1, involving the validity of a certain paper purporting to be and which had been recorded as t e last will and testament of Kosciuszko, the bill charged that t e paper was not a will. The bill made no reference to any ot er will. The answer insisted that the will referred to in the i was a valid instrument and operative. Chief Justice Mar-8., 5 shaking for the court, said: “ Before the court can de? e t e intricate questions which grow out of this will, we think n0^e<^SSpossess some information which the record does wfil^v aPPearing that the testator had made another j w ich was not in the record, the court said that “ since We^o ln^°rme<^ it® existence, it would be desirable to see it. the f° n° • h*nk ^he case properly prepared for decision; and mand °d ° .rec^ decree be reversed and the cause re-

In the present case it is quite clear that the record does not contain evidence of a material character, and that the absence of such evidence is due to the action of the trial court in not giving sufficient time to the Government to prepare its case. We cannot resist the conviction that if we proceed to a final decree upon the present record, great wrong may be done to the United States, as well as to all interested in preserving the navigability of the Rio Grande. As the record does not show that the representatives of the Government were chargeab e with want of diligence in their preparation of the cause, we think that the decree should be reversed and the cause remand , with liberty to both parties to take further evidence.

We are the better satisfied with this disposition of the case because the questions presented may involve rights secur y treaties concluded between this country and the Repu io Mexico. As the latter country cannot be indifferent to t e re-

Syllabus.

suit of this litigation and is not a party to the record the court ought not to determine the important question before us in the absence of material evidence, which we are not at liberty upon this record to doubt would be in the record but for the somewhat precipitate action of the trial court.

Without considering the merits The decree 'must he reversed, and the cause rema/nded to the

Supreme Court of Neva Mexico with directions to reverse the decree of the District Court and to remand the case with direction to grant lea/oe to both sides to adduce further evidence. It is so ordered.

Mr . Justic e Gray and Me . Justi ce Mc Kenna did not sit in this case nor participate in its decision.

Mr . Justi ce Brew er and Mr . Justice Shiras dissented.