It is further ordered, adjudged, and decreed by the court that the defendants do have and recover of and from the plaintiff the cost of this suit, to be taxed by the register.

Whereupon the plaintiff, by its United States attorney, prays an appeal from the foregoing decree to the supreme court of the Territory of New Mexico; which appeal is hereby granted. Done in chambers this 9th day of January, A. D. 1900. FRANK W. PARKER,

(Signed)

Judge, etc.

PROCEEDINGS IN THE SUPREME COURT OF THE TERRITORY OF NEW MEXICO.

Final decree affirming the judgment of the District Court, August 24, 1900.1

This cause having been argued by counsel and submitted to and taken under advisement by the court upon a former day of the present term, and the court being now sufficiently advised in the premises, announces its decision by Chief Justice Mills, Associate Justices McFie and Crumpacker concurring, affirming the judgment of the court below, for reasons stated in the opinion of the court on file. It is therefore considered and adjudged by the court that the judgment of the district court in and for the third judicial district, whence this cause came into this court, be, and the same hereby is, affirmed, and that, in accordance therewith, it is considered, adjudged, and decreed by the court that the bill of complaint of the appellants herein be, and the same hereby is, dismissed. It is further ordered, adjudged, and decreed by the court that the appellees do have and recover of and from the appellant their costs in this behalf expended, in this court as well as in the court below to be taxed, and it is so ordered.

1

1 [Extract from the record of the proceedings before the Supreme Court of New Mexico, Friday, August 24, 1900. See transcript of record before the Supreme Court of the United States, October Term, 1901, No. 239, page 629.-Agent's note.]

Opinion of the Court, August 24, 1900.1

Supreme Court of the Territory of New Mexico, No. 879.

UNITED STATES OF AMERICA, APPELLANT,)

v.

THE RIO GRANDE DAM & IRRIGATION

Co. et al., appellees.

[10 N. M. 617.]

Appeal from decree in favor of defendants from Third Judicial District. Affirmed.

Facts will appear sufficiently in opinion.

William B. Childers for appellant.

W. A. Hawkins, A. B. Fall, John Franklin, and S. B. Newcomb for appellees.

MILLS, C. J. The bill of complaint in this suit was originally filed on May 24, 1897, on behalf of the United States, by their Attorney general, 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 in the territory of New Mexico, and appropriating the waters of that stream for the purpose of irrigation. The cause was tried before the judge of said court, and a decree entered dismissing the bill. The United States appealed to this court, where the judgment of the district court was affirmed. (9 N. M. 392.) Thereupon the United States appealed to the supreme court of the United States, where the decree of this court was reversed, and the cause remanded, with instructions to set aside the decree of dismissal, and to order an inquiry into the question whether the intended acts of 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 will so diminish. (U. S. v. Rio Grande Dam & Irrigation Co., 174 U. S. 690.)

In accordance with the judgment and mandate of the supreme court of the United States, the cause was remanded to the district. court of the Third judicial district of the territory, and, beginning on December 12, 1899, the cause was heard before the judge of said court. At the conclusion of said hearing on the 1st day of January, A. D. 1900, the judge of said court made his findings of fact, and ordered that a decree be prepared and entered dismissing the bill of 1 [The reporter's syllabus is omitted.-Agent's note.]

complaint. Thereafter a motion for rehearing was filed and overruled, and on the 9th day of January, A. D. 1900, a final decree was made and entered dismissing the bill. Thereupon the appellant prayed an appeal to this court, which was granted.

The appellant filed the following assignments of error:

(1) The court erred in its seventh finding of fact to the effect that between San Marcial and El Paso, a distance of three hundred miles measured by the sinuosities of the river, the percentage of loss 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. The evidence in this case failed to show that any such loss occurred between San Marcial and El Paso in any year except that of 1897, and there being no evidence upon which to predicate the general conclusion drawn by the court by its said findings.

(2) The court erred in its eighth finding of fact, there being no evidence upon which to base the general and particular conclusions contained therein.

(3) The court erred in its ninth finding of fact, there being no evidence upon which to base the general and particular conclusions contained therein.

(4) The court erred in its tenth finding of fact to the effect that the Rio Conchos is a perennial stream, and at all times contributes a considerable quantity of water to the Rio Grande, such finding not being sustained by any evidence in the case, and the rest of the finding being a mere statement of a probative and not an ultimate fact.

(5) The court erred in its eleventh finding of fact to the effect that the evidence fails to show that at the period mentioned therein the waters flowing by the mouth of the Conchos affected the height of the river at Laredo, Texas, to a considerable extent; said conclusion being uncertain, ambiguous, and misleading, incomplete, and contrary to the evidence in the case, and is wholly immaterial, and because the particular facts found do not justify the general conclusion stated therein.

(6) The court erred in its seventeenth finding of fact. The same is not based upon any evidence in the case, and is misleading, ambiguous, and the mere expression of opinion. If the conclusion reached by said finding is based upon any evidence at all, it is upon the absence of evidence, and, while affirmative in form, it is a negative conclusion, and furnishes, neither in whole nor in part, any basis for the decree and finding dismissing the bill in said cause. (7) The court erred in its twenty-eighth finding of fact: (a) The first paragraph of said finding is based upon the measurement of one flood flow in the year 1897, and that only between San

Marcial and El Paso, and therefore is not a reasonable deduction from the evidence in the case.

(b) Because the second paragraph of said finding of fact 28 is not a finding of fact drawn from the evidence in the case, but is purely the result of speculation, and not a fair deduction from the evidence.

(c) Because the third paragraph of said finding of fact 28 is not a finding of fact drawn from the evidence in the case, but is purely the result of speculation, and not a fair deduction from the evidence. (d) Because in the fourth paragraph of said finding of fact 28 the court is not justified in assuming an arbitrary percentage of loss by evaporation and seepage between Presidio del Norte and Rio Grande City, Texas, but such assumption must be based upon evidence in the case, and there is no evidence in the case from which such arbitrary percentage of loss can be determined.

(e) Because the assumptions and presumptions contained in paragraphs 1 to 6 of said finding 28 are not based upon or sustained by any evidence in the case.

(f) Because the table (page 13 of said findings of fact) made a part of said finding 28, is based upon the assumptions, presumptions, and speculative conclusions contained in the preceding six paragraphs of said finding 28, and said assumptions can not be made the basis of a conclusion by the court, nor said table; said assumptions being wholly unwarranted by any evidence in the case. (g) The appellant assigns as error the remainder of said finding of fact 28 explanatory of said statement, as being merely a theoretical and speculative discussion of the conditions of the river, and probable results which might flow from given conditions, not based on any evidence in the case, and because said finding is not properly a finding of fact, but a mere speculative opinion or theory.

(8) The court erred in its thirtieth finding of fact, because it is based upon statements of fact not sustained by the evidence; and, second, the court erred in said statement of fact, in this: that the statement of facts contained in said finding does not justify the court in finding as a matter of fact, and concluding therefrom, that the amount of water proposed to be appropriated and impounded at Elephant Butte by the defendant will not substantially diminish. the navigable capacity of the Rio Grande within the present limits of navigability.

(9) The court erred in finding as a matter of law that the plaintiff's bill should be dismissed.

(10) The court erred in this: that none of the facts found by the court are sustained by the evidence in the case.

(11) The court erred in refusing to reopen the case upon the application of the plaintiff, and to permit the plaintiff to obtain

additional evidence to establish facts which the court itself found not to have been established, and without which no proper determination of the issues could be had, and the absence of such evidence and the possibility of procuring the same not having been apparent until the trial of the case.

(12) The court erred in refusing to grant a rehearing of said case upon the offer of newly-discovered evidence in said cause.

(13) The court erred in refusing to grant a rehearing of said case upon the offer of the plaintiff to procure the evidence mentioned in assignment of error 11, together with the newly-discovered evidence presented to the court by the affidavit of the proposed witness Clark and others; it being certain that the investigation which the plaintiff offered to have made, together with the newly discovered 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:

[For these findings of fact, see ante, pp. 44 to 55.-Agent's note.]

We have examined the record, which is very voluminous, and shows that the whole matter was thoroughly gone into, and we conclude that the facts as set forth in the findings of the learned judge below, are sustained by the evidence, and we adopt the same as the findings of this court.

The first seven assignments of error by appellant refer to the insufficiency of evidence to support the findings. As above stated, we think that these findings are amply supported by the evidence, and clearly within the preponderance of the same.

The eighth assignment of error is directed to the last finding of fact, which is the ultimate fact in the case. The court, in this finding of fact, found that the proposed acts of the defendants will not substantially diminish the navigable capacity of the Rio Grande within the present limits of navigability. It seems clear to this court that the appellant utterly failed to establish the fact that the proposed acts of the defendants would have the alleged effect upon the Rio Grande. While it may be true, as stated in the findings of fact by the trial judge, that the flood waters of the Rio Grande passing El Paso, Tex., do to some extent and under some circumstances add to the navigable capacity of the Rio Grande at Rio Grande City, the head of navigation, there is no evidence in this record from which a court can deduce what that effect may be, and consequently the appellant failed to establish its right to an injunction in this case. The burden of proof was upon the appellant. This was met by ap