Amicus Curiae Brief — New Mexico v. Texas

Supreme Court brief1927

Ask Donna

What actually matters in this document.

Text

e : In THE

IME COURT OF THE UNITED STATES |

Ocrosger Tzrm, 1927

No. 2 Original

Srare or New Mexico, Complainant,

P v.

Tue Srare or Texas, Respondent

f ON BEHALF OF THE EL PASO COMMER.

AL COMPANY, FRED FREEMAN. HEMLY

RISHABERGER AND MRS. 0. A. KERBER,

§ AMICI CURIAE, IN SUPPORT OF COM.

AINANT’S PETITION FOR REHEARING.

—_—o

STATEMENT

mi brief is filed in support of complainant’s peti-

G for rehearing on behalf of the KE] Paso Commer-

# Company, Fred Freeman, Hemly & Rishaberger

[Mrs. C. A. Kerber, as owners of land lying south

32d parallel and north of the south line of the

lo Grant and being located west of the Salazar-

er line (determined by this Court to be the

ry) and east of the line of the Texas surveys,

the Special Master has found to be the 1850

he with accretions. These titles are based on

<inbeghe

Sage

2 |

patents issued by the State of Texas. T

to be within the boundaries of New Mexico it will

readily seen that upon the granting or refusal 9

such land have good title to the same or t

are absolutely void.

REPORT OF SPECIAL MASTER |

The Special Master divides the patents issued

State of Texas into three groups. These par

concerned with the two groups lying between

parallel and the south line of the Canutillo Gr

With reference to this land the Special

ports as follows (pp. 48-50) :

1) ‘The patents for lands lying ween

parallel and the north line of the Cann

aur

cHfe

Hill

over

Saeeeeesasz

Tree

across

a half)

ding

ole width of the val-

distance measured

“we td exten

(about a mile and

practically the w

‘

two mil

ae ee

grant. I find this evidence to

inasunieh as the surveys, me i

were not incorrect, did, in fact, lay

in the valley bounded

Grande as shown on the ma

Randolph introduced in

It is

to all the

by the State of ‘Texas but also to

of the Rio Grande; and the

_ evidence to that effect. (1) But

true, it would not alter the fact 8

did lay claim to the land as far as

Grande as it ran at the dates of the surveys,

— whether the avers ae ae

ormed to the original grant is only re

controversy between the Sta State "of Texas and it

patentee or other private claimants, and has no

bearing upon the issue as to whether, in fact, the

patent was issued for the land described and:

upon by the patentee accordingly.

Farther on in his report (p. 54) he says:

On the above evidence (but without de

tion of the Maps last above referred to), I

that, for at least thirty years while New

was a Territory and prior to its admission |

State, the United States made no

ty fis lindas theregh scleenas aan xa

its citizens rough Nee ie c

tions, and that it, ienpliedly.. at least, recogni:

FINDINGS OF FACT OF SPECIAL MASTER

_ The Special Master finds as a fact:

_ 1. That the true boundary line between the State of

Texas and the State of New Mexico is the line of the

_ Bio Grande River as established at the time the var-

~ jous surveys were made and patents issued,

/ 2 That this line was tacitly recognized by the State

_ of Texas and by the Federal Government during the

_ period that New Mexico was a territory.

_ In this connection it is significant to note that the

- mpplemental brief filed on behalf of New Mexico as

well as the principal brief filed on behalf of Texas

_ agree that the doctrine of aceretion should apply in

fixing this boundary.

DECISION OF THE COURT

This Court rendered its opinion on December 5,

1927, and decided as follows:

eek 1850'F sig er 32 Bt

owed in 1 rom the rH)

north latitude to the International Bounda be-

tween the United States and Mexico was os tad

by the Special Master and substantially as con-

gyn jd a8 State of Texas. ie p

; t the Special Master erred in a ying

the recognized rules of accretion to the Rio

Grande, so located, in determini the boun

line because the Court believed that the United

States and Texas, before New Mexico became a

State, had recognized as the boundary the river of

1850 without regard to changes by accretion.

slead by tb Beate of Wenas ont a 4 .

sixty years, bot the Ouurt tn tte didlibane

this property is situated within the limits.

of New Mexico. ss

It is respectfully submitted that under «

of fact by the Special Master the true boundary ling

that detormined by the Special Master and th

hearing should be granted in this case in «

the decision may coincide with his findings.

The result of the decision of this Court is to

date all patents issued either by Mexico or the

Texas to the land lying between these two

the case of these parties it will result in a |

their property being declared to be publie 1s

State of New Mexico and thrown open for ¢

in aceordance with the laws of that state, re

any vested rights the present owners may ha

wish up to Con pretens tae head boll mip

State of Texas and the United States as vali

On behalf of the El Paso Guikaniees

pany, Fred Freeman, Hemly é f

berger, and Mrs. C. A. Kerber, —

IN THE

HE SUPREME COURT OF UNITED STATES

October Term, 1927

IN EQUITY ao

NUMBER 2, ORIGINAL

THE STATE OF NEW MEXICO, Plaintif

versus

THE STATE OF TEXAS, Defendant.

PLEMENTAL BRIEF REPLYING TO SEVERAL

EFS FILED BY THE STATE OF NEW MEXICO x

SUPPORT OF THE PETITION OF COM: —

PLAINANT FOR A REHEARING.

CLAUDE POLLARD,

Attorney General of Texas.

\ D. A. SIMMONS,

First Assistant Attorney General,

Attorneys for the State of Texas.

Austin, Texas,

INTHE SUPREME COURT OF UNITED STATES

IN EQUITY a:

NUMBER 2, ORIGINAL e

THE STATE OF NEW MEXICO, Plointiff

THE STATE OF TEXAS, Defendant. ~—

‘SUPPLEMENTAL BRIEF REPLYING TO SEVERAL

BRIEFS FILED BY THE STATE OF NEW MEXICO

IN SUPPORT OF THE PETITION OF COM-

PLAINANT FOR A REHEARING.

COMPLAINANT’S MOTION FOR REHEARING PRE.

“ SENTS NO NEW ISSUE NOR DOES IT POINT OUT

ral anguments, een fly present to te One

tic tu sidhad te Us thal Vick thie Wiles 2 at

and that as late as 1923, the State of Texas

brief that the boundary line in controversy

ti gg

Texas. Se et

E mn TEA i

a wurswmraan soviet a. STERN.

(Exhibit C of Record.) This position thus stated by the

tate of New Mexico was reiterated so often in the pleadings

at there can be no’ doubt that New Mexico pleaded and

nt to establish a fixed boundary. Texas accepted the

we as it was drawn by the State of New Mexico and by

ing declared the boundary line to be “THE MIDDLE

THE CHANNEL OF THE RIO GRANDE RIVER AS

VALLY EXISTED IN THE YEAR 1850.” (Record,

page 20,)

thetithe brief malice i dhe.@hate

the"boundary line in controversy to be

Pes CHANGES WHICH OCCURRED BY

UPREME COURT OF THE UNITED STATES

——_ OOTOBER TERM, 1925

No. 3, Original

THE STATE OF NEW MEXICO, COMPLAINANT,

v8. .

THE STATE OF TEXAS

INDEX

‘The pleadings....... sveb envsauubcbinde poebbeanpoasveuah ani clube

IV. The defendant's evidence................ ba deveas cues pvece

(1) The Texas surveys and patents oe PREN eS tb de bee

SSRIS AVBRR BSS LCRRERSLBBY SBkeend

& Derwercra (Inc,), Pruners, WasuHinoton, D. C., Apri 27, 1026

Pare eae _—

ss ee joe bs:

Aon a SC ese

ty YO ae iets } sige PID ln Bis ace ae

” Me, 7 efor}

, - P ‘ ie ptr”

4 5 pane 5 sak te tee BEY Grad ees, 2

p M Vf at ® ¢ Gini BP ha sige . i

hale eer id Sones. OY

PS es

I ie

ns Ci inate

No. 8, Original

Tur Stare or New Mexico, Complainant,

‘Tax Stare or Texas

To the Honorable the Supreme Court of the United States:

In the cause entitled The State of New Mexico v. The

State of Texas, No. 3 Original, October Term, 1925, this

Honorable Court appointed me as Special Ma by its

order, dated December 4, 1924, as follows: —s_. |

“Tt is ordered that this cause ‘be referred to Charles

Warren, Esq., as a special master, with directions that he

make special findings on all material questions of fact and

report the same to the court with his recommendations re-

specting the decree to be entered. The master shall accord

to the parties a full hearing ‘on all questions in the cause,

whether of fact or of Jaw, and shall base his findings and

recorhmendations on the entire record as heretofore made

mentioned in the stipulations appearing in the record.

hearing before the Court on ‘the findings and recommenda-

tions of the master and such exceptions thereto as may be

presented by either State.’’

This order was amended by a supplemental order dated

March 10, 1925, by adding the following: ‘The Master may

in his discretion receive a brief of an amicus curie whom

the Court has already permitted to file a brief in this

cause,’’

Pursuant to the above orders, I, as Special Master, ac-

_ eorded to the parties a full hearing in the City of Wash-

1—3 orig.

sagen na a oe rings ¢

i counae appeared and egued forthe Sate of C

Texas, W. W. Turney, and W. A. Keeling. After the

ings, I received a brief from the amicus curiw, L. M. :

ford, through his attorney Thornton Hardie, Oscar

derwood, Jr., of counsel.

Now, pursuant to the above orders, I heneveiths sub

the Court the report of my findings and recomm

CHARLES WARREN,

In tHe Supreme Court or tHe Unrrep Srarszs, Ocromes

Term, 1925

No. 3, Original

Tue State or New Mexico, Complainant,

vs.

Tue Strate or Texas

REPORT OF THE SPECIAL MASTER

THE PLEADINGS

This is an action brought by the State of New Mexico

against the Stuie of Texas, by a bill of complaint filed o

January 31, 1913, to determine the boundary between the.

two States between the parallel of 32 degrees north latitude

and the parallel of 31 degrees 47 minutes north

(the latter being the international boundary line be

the United States and Mexico).

The bill alleges, in substance, that, under the pre

of and in accordance with the Act of Congress of §

ber 9, 1850 and the Proclamation of the Presidont

ee te

33 lige

The bill further-alleges that thereby the channel of the

Bio Del Norte (now known as the Rio Grande), from the

point where the thirty second parallel of latitude inter-

sected said channel in the year 1850 ‘‘as the same existed

at that time,’’ became and was the western and . ‘thwest-

ern boundary of Texas from such parallel to the Gulf of

Mexico, and that ‘‘said boundary has remained un 2

to the present day;’’ that, under the Gadsden Treaty of

December 30, 1853, between the United States and M. ;

the portion of the present State of New Mexico lying be-

tween the parallel of 32 degrees and the parallel of 31 de-

grees 47 minutes became a portion of the territory of the

United States, and, by Act of Congress of August 4, 1854,

became incorporated in the Territory of New Mexico, so

that the channel of the Rio Grande between the above

parallels, which, prior to the Gadsden Treaty had been the

boundary line between the United States and the Republic

of Mexico and also between the State of Texas and the

Republic of Mexico, became and was the boundary be-

tween the State of Texas and the newly formed Territory

of New Mexico, and ‘‘now is the boundary between the State

of Texas and the State of New Mexico;”’ that the channel

of the Rio Grande and the said boundary line following

the middle of the channel were correctly represented on a

map attached to the bill of complaint; that the Territory of

New Mexico was admitted as a State into the Union under

the Act of Congress of June 20, 1910 and the Joint Re-

solution of Congress of August 21, 1911, whereby, and in

Congress of August 21, 1911, the admission of New ve

as a State was to be ‘‘subject to the terms and cc

of the Joint Resolution of February 16, 1911; that 1 u

the Joint Resolution of February 16, 1911, the t oun

jaa parallel (i. e, the monument neasest ‘Se

Grande) was ewes more than 3,000 feet west «

assume and exercise jurisdiction over, and had

grants, conveyances, patents and surveys of, land lying

of the channel of the Rio Grande ‘‘asit existed in the

1850”’ between said parallel of 32 degrees and the pa

of 31 degrees 47 minutes; and it prayed that ‘‘the m

of the channel of the Rio Grande as it existed in the.

1850,’” and as shown upon the map attached to the bill of

complaint marked Exhibit C, be decree to be the

boundary line.

The State of Texas filed | an answer and cross bill;

there were appropriate subsequent pleadings by

parties. It is unnecessary to recite these pleadings

tail, as they raised a very simple issue. The State of Tex

own as New Mexico was

ESE the channel of the Rio Grande as it existed in 1850 between

___ the parallel of 32 degrees and the parallel of 31 degrees 47

shown and delineated on a map marked Defendant’s Ex-

__ hibit A attached to the answer and cross bill. It further

far as the line along the thirty second parallel was con-

- cerned. It denied that it had exercised or assumed juris-

diction over any land “lying to the west of the channel of

the Rio Grande as it existed in the year 1850,’’ between

the parallels in question; and it prayed that ‘‘the middle of

the channel of the Rio Grande as it actually existed in the

| aminers were appointed by this Court to take testi-

» Mony; and oral and documentary evidence were introduced

the parties at hearings held in Texas and otherwise over

a period of years, from November 10, 1913 to

26, 1918, when the taking of evidence was closed.

after, on April 14, 1924, on motion of the State

- Mexico, this Court entered an order allowing the

New Mexico to take additional testimony of a spec

ness and the State of Texas to introduce rebuttal

testimony; and such testimony was duly taken, Mi

June 20, 1924. L. M. Crawford was allowed by the

to file a brief as amicus curis. The record consists

4,000 printed pages and 195 exhibits, including 41 m

photographs; and over 100 field notes, surveys and

patents. Briefs were filed by the parties and by the:

curie, of 2150 printed pages. ae

The Court in following the evidence as to the locatio

the river claimed by the parties respectively and as’

various geographical points and surveys testified '

find it most convenient to refer to the plaintiff’s map

tached to its bill of complaint, and to the defendant's

known as Texas Map No. 3, Defendant’s Exhibit No.

Record 3373. 3 VEN

FINDINGS OF FACT

The Historical Source of the Dispute

It is due to a curious historical accident that the |

of the river which constitutes the boundary line J

these two States was not settled many years ago; and,

cause of a singular episode in United States history, '

Court is now called upon, seventy eight years after the ¢

of the war with Mexico, to decide what was the boundar

line, in 1850, between the two nations—the United States

and Mexico; for in deciding that international boundar,

line, it will determine the boundary between the two State

now in litigation. oe

Article Five of the Treaty of Guadelupe Hidalgo of

ruary 2, 1848 established the boundary line between

(1) A stipulation as to admission of evidence was also entered

the parties, November 10, 1913 (Record 40). ee

Bravo del Norte)

where it strikes the

thence westward along

of New i

the southern

the State of New Mexico in Mex-

down on a map of the United

_ States made in 1847 by J. Disturnell, so

- tached to the Treaty. It

del Norte.’’

Under this Treaty,

one Commissioner

ary of the Mexican State

of New Mexico was to become the northern boundary of the

Republic of Mexico and the southe

States, it

the Treaty (i. e., El

City of Juarez, op-

t Commission there-

run down the Rio

om the Initial Point; and at a meeting on

September 7, 1851, it was agreed that the survey should be

under the direction of the United States Chief Astronomer

(then Col. Graham), with whom the Mexican Surveyor and

Chief Astronomer should cooperate. These two Astrono-

aie cere whith tnd

n of Col. Graham from

\ a 7 le |

, 1852, and was @

paper,’’ on a scale of four inches to the mile.

reported to the United States 9mmiss}

United States Co Mmissio’

lett, in his Personal Narrative (published in 1854)

that the Radziminski Survey was ‘‘executed in a

satisfactory manner and accepted as the official surv

{It may be noted, at this point, that this Radzi

Survey was not introduced in evidence; and coun

both parties stated, during the trial and at the b

before me as Master, that, ‘after investigation a

search, its present existence could not be ascertain

was also admitted by counsel for both parties that this

ziminski Survey, if found and introduced in ‘eviden

would practically settle the issue in this case, as |

survey officially made by the United States of

‘Grande ‘between the parallels of latitude involved im th

ease. Accordingly, after the hearings before me as Mast

I felt it my duty to the Court to make an independent se

personally in Washington for such Survey; and I requ

the Departments of State, War and Interior that

searches should be officially made in their respective

Such searches were made by the Departments; but

(*) See Record 2243, 2249, 2331.

| as the respective Governments differed

stated that the maps were ‘‘not ag correct as

Bf be, and not in a condition to

_Teect maps of a surv:

- field,’’ and that “‘notwi

portions of the Rio Grande from po

Mouth have been completed, another sur-

_ vey in detail of Rio Grande

from the initial

of other portions

Events now arose

ing to fix the Initial Point

Ana at the parallel of 32 de-

grees 22 minutes.(1) Other sourees of disse

’s work also arose; C

to continue the ay the comple

veys and on December 24, 1852, the © C

banded.(2)

the original Treaty of Guadelupe Hidalgo or to estab

the location of the river, so far as it ran between tl

parallels. Under the Gadsden Treaty, Major W. H. En

and Salazar were appointed Commissioners resp

for the United States and Mexico to fix the point of fs

section of the Rio Grande with the parallel of 31 ¢

47 minutes, and also to survey and establish the.

line from said point west to the Pacific. By Jan

10, 1855, the new Initial Point had been fixed and the

On or about August 20, 1855, the survey under the ¢

den Treaty was completed by the respective Commi

after an examination of the notes, maps, ete.; and 4

meeting of the Joint Commission, the line under the

(1) Record 2257-2261 ; for history of the dispute, see Annual §

Secretary of the Interior, December 4, 1852, 32d Cong. a >

pendix (not introduced into evidence). a3e

(2) Record 2288; 32d Cong., 2d Sess., Senate Document No. 41, 5

of Bartlett to Secretary of Interior, Feb. 7, 1853; 3384

Seen, Sehadh, 1008, Geaste Decament He, 6 (not introduced in

as a whole).

> + "

7 ee

Y. sion on file in the Department

in evidence) :

ready, two i

on tae So that, the

The maps thus referred to included, as stated in the above

vote, not merely the maps and result of the survey made

under the Gadsden Treaty, but also the maps and result of

the surveys made prior to 1853, under the Treaty of Guade-

lupe Hidalgo, so far as related to the Rio Grande boundary

line from its intersection with parallel 31 degrees 47 min-

utes and south to the Gulf of Mexico.

; and John H, —

ey ie ii &

Penis

nile

THE ABH

2a982 obaacd cdi gaahesdaaee

quae te

A HEEH Fu ete Tea

Berar LO US ba ae

mire Heuer ee]

THEE EH TL RSP eee

Sep Ses sas

SRA

= as.” AS. peel ‘

~ firmed as the boundary between e Territory of New

Mexico and the State of Texas by the Act of Congress of

March 3, 1891, c. 542 (26 Stat. 971) and the Joint Resolu

_ tion of Texas of March 25, 1891 (Gammel’s Law, Vol. X,

_ p. 195). Nineteen years later, an Act to enable the people

_ of New Mexico to form a Constitution and a State Se te

ment was passed by Congress, June 20, 1910, c.

Stat. 557); and under this Act the people of New Mexico

adopted a Constitution, January 21, 1911, article I of which

_ Set forth the boundaries of the new State as follows;

‘The name of this State is New Mexico, and its bound-

aries are as follows: Beginning at the point where the

thirty-seventh parallel of north latitude intersects the one

hundred and third meridian west from Greenwich; thence

along said one hundred and third meridian to the thirty-

seeond parallel of north latitude; thence along said thirty-

second parallel to.the Rio Grande, also known as the Rio

Bravo del Norte, as it existed on the ninth day of Septem-

ber, one thousand eight hundred and fifty; thence, follow-

gton ; thence along

ridian to the thirty-seventh parallel

of north latitude; tenes slong sid rth |

to the point of beginning.” ol

- Congress, by the Joint Resolution of Feb:

No. 6 (36 Stat. 1454), provided that this propos

- tion should be construed ‘‘so as not in any way

alter the said boundary lines known as the

it provided that the former ratification by t

States and Texas in 1891 ‘‘shall be held and d

elusive location and settlement of said bounda

and that the Clark lines ‘‘shall remain the true b

lines of Texas and New Mexico;’’ and it further p

for the appointment by the President of a Comm

(jointly with the State of Texas) ‘‘to reestablish

mark the boundary lines heretofore established and n

by John H. Clark between New Mexico and the §

Texas’’ (so far as respects this case) ‘‘west with the

second degree ,of north latitude as determined y

Clark to the Rio Grande.’’(1)

New Mexico was admitted into the Union as a §

the Joint Resolution of Congress of August 21,

8 (37 Stat. 39), its admission being made subject |

terms and conditions of the Joint Resolution of Feh

16, 1911 as to the Clark lines, and also subject to

pliance with the terms and conditions of the

and proclamation of such compliance was made he

President of the United States on January 6, 1912 (37 tat

1723). ieee

Under the Joint Resolution of February 16, 1911, the so

called Scott-Cockrell Commission was appointed h

President and by the State of Texas, which procee

relocate and reestablish the Clark boundary lines. fi

its report April 5, 1912. Owing ‘to the fact bye

_ been unable to find any ruins, evidence, or trace, w

ground, of the location of Monument No. 1, (

had erected 600 feet from the a of ei

ond parallel with the Rio Grande), the Com

established that Monument No. 1 by scaling ite | ui

shown on Clark’s Map No. 1 accompanying his r

his survey; and the Commission made a supple

(1) For an account of the reasons for this Joint Roasting

Report No. 940, 61st Cong., 3d Sess,; Message of President

21, 1910, House Document No. 1076, 61st Cong., 3d Sess.

. to that Monument, February 20,

Pp , by Executive Order No. 716 of

191! approved, confirmed and established the

_ along the channel of the Rio Grande to the

_ Boundary Line, by any official United States

ee ‘survey.

| __In this condition of

Grande, New Mexico

_ and about a year later, January 31, 1913, it instituted the

present suit.

Description of the Rio Grande Valley

A general preliminary description of the locus is as fol-

lows:

The Rio Grande, in New Mexico, was held by this Court

to be a non-navigable river in 1899; see United States v.

Rio Grande Dam and Irrigation Company, 174 U. §. 690,

699:

“Obviously the Rio Grande within the limits of New Mex-

ico is not a stream over which in its ordinary condition

trade and travel can be conducted in the customary modes

_ of trade and travel on water. Its use for any purposes of

transportation has been and is exceptional, and only in

times of temporary high water. The ordinary flow of

water is insufficient.’’

about 1852), to _— (settled in 1850), and

(a town settled about 1840). It was ri

John R. Bartlett (formerly the United 8:

amp eect as follows (Record 2339-23

Bec state. Some lands were plowed

but the water failed and with it the pit

more, about forty miles above El Paso is e}

ment. Between this and Frontera, there is a bi prog

dottom, of great richness * * m. |

not appear for some distance beyond the obse1

White’s Rancho. * * * On the immediate b

river are cottonwood trees, but none elsewhere.

large piece of bottom land has just been ploughed

put under cultivation by Mr. Magoffin about twelve

above Frontera, the only cultivated spot between El Paso

and Cruces, a distance of nearly forty miles.’’

It has also been described in various Government docu- —

ments which have not been introduced in evidence, but m

which I assume that the Court may take judicial notice. (2

In 1855, in a report of Captain John Pope, itis said:

‘‘With the exception of the limited strip between

lin and Molina, the immediate valley of the Rio Grand

is between two to five miles in width and perfectly le

and the river traverses it from side to side in many

sinuosities. These level bottom lands can be

irrigated from the river. * * ° The immediate nie

of the river from Dona Ana to Frontera contains

128,000 acres of arable land.’’

(1) Personal Narrative of Explorations and Incidents in tii

Mexico, Sonora and Chihuahua connected with the United States —

Mexican Boundary Commission a 4 the years 1850, "51, ‘62, ant

by John R. Bartlett, published in 1854 an!

(2) Report of Exploration of a Route for the Pacific Railroad the

thirty second of latitude from the Red River to the Rio Gr

by Brevet Captain John Pope, 1 Engineers, B

Senate Executive Document No. 4 Vol. III, 38d Cong., 7

T. Antisell, page 16.

Water Resources of the Rio Grande Valley in New Mexico, |

Development, by Willis T. Lee, Department of the Interior, on

Geological Survey, Water Supply and Irrigation Paper No. 1

as House Document No. 73, 50th Cong., 2d Sess., pages 7,8

4-155, Thomas Antisell, the geologist of the Parke

places, to nearly six. ‘Through this, the river meanders in a

serpentine and not always constant channel, ol anging its

banks so as to encroach yearly some feet occasionally o1 :

either side, and ca suspended a large quan ity of mud

_ of a fine reddish tint, derived from the reddish sandstone °

~~ and fine felspathic clays. After freshets, the waters of the |

Puerco and Galisteo carzy down large amount of mere

-_ tilicious matters which are sometimes strewed by over-

_ flow upon the lowe; ==:i fertile bottoms of the valley to the

injury of its productiveness; the variability of the current

and the body of water carried down leads to a continual

shifting of the bed of the river, rendering the fording of

the river unsafe, except at points which are rarely the

same in different years. * * * The soil of the valley

everywhere is porous and saturated with the waters of the

river which give it thus a remarkable fertility. Cottonwood

is the only timber on the bottom, * * * The valley pre-

serves the same fertility and general appearance from

Dona Ana down to El Paso,’’

In 1907, a report issued by the United States Geological}

Survey described the valley as follows:

The valley is a part of the semiarid region of the south-

western part of the United States, in which the rainfall is

insufficient for agriculture without irrigation, A com-

paratively small amount of the water derived from the

mountains to the north sustains a small but permanent flow

in the river in the northern part of the region, but this

water gradually disappears and the river bed in the south-

ern part is often dry. The Rio Grande is essentially a

storm-water stream, subject to great and sudden floods.

* * * The rainfall in the region occurs principally in the

form of violent showers or ‘cloud-bursts ’, which fill the

stream courses with turbulent floods of short duration.

When these showers occur simultaneously in many part of

the region, they cause more or less destructive floods in

38—3 orig.

the river. For these. reasons the fertile i:

along the river are sometimes unproductive.

water and at other times crops are ruined because

ars submerged or irrigation ditches destroyed by

Much of the diminution in the volume of flow downst:

is due to the fact that a large part of the water

river sinks beneath the surface into the porous m

the valley bottom. Many of the tributary stream

that are dry where they join the river contain

in their upper reaches, the water sinking beneath the

face when it reaches the detrital material of the valley,

The Rio Grande, west of the city of El Paso and beyon

a place called Molino, makes a sharp turn to the northand =

runs through a small canyon or gorge. North of th Meas,

canyon is the Courchesne bridge. A little over a mile ab

this bridge, on the east side of the river, is the spot cal

Frontera. The valley is about a mile in width at .

and it spreads gradually as it goes north, until at the 324

parallel it is between four and five miles in width. The

distance from Frontera to the 32d parallel in a straight line

north is 12.93 miles, and by the river at least 15 miles,

About five miles above Frontera on the east side of the

valley, is a place now called Montoya (not in existence in

1850), a little below which is a point much testified about by

the Indian witnesses and termed by them, Durasnito.(1)

At Montoya, the river valley is about three miles wide,

About two miles above Montoya is New Canutillo.(2) Be

tween these two points, a Texas land grant, the Canntillo

Grant, stretches almost entirely across the valley west to —

the line of the river contended for by the State of Texas.

Two and a half miles north of New @anutillo is the place

now called Vinton (not in existence in 1850). Between the

two places, there was a stretch of country called by some_

witnesses Uranguena. North of Vinton were two locations

testified to by Indian witnesses as La Bruja and ~

(1) This point is also mentioned in Texas survey 157 (Record 3310

“near the foothills at what is known as the ‘Durasnito.’”

7@) About two miles south of New Canutillo (11,500 feet, see t

of Post, Record 1877), is the location of a house and small ranch t

pags Indian witnesses as existing in 1850-1860, called Doroteo

and a place called Canutillo Viejo (Old Canutillo).

2 (termed by some ‘‘]

more or less covered with brush. | ;

_ (or foothills) the ground rises into the F

On the west side of the valley, the

abruptly in high sandy bluffs and a somewhat hig! 3a

from which a rolling tableland extends west. Southwest

Frontera, and of the river, and situated in Mexico, is

Muleros Mountain, whose prominent peak rises 1,200 fest

above the plain, and which can be seen from all the country

round, and from which the country can be seen up to the

32d Parallel.(1) Nearly due west of Frontera and White’s

Ranch is a group of high jagged rocks known as Piedras

Paradas,(2) from which to the north, on the west side of

the valley, is the Santa Teresa Hill, jutting out into the

valley; other high bluffs occur about half way up the

valley, known as Alto de Cuarones, and the Cobrena, a

high tongue or point of land jutting out into the valley,

Between three and four miles south from the 32d Parallel

on the west side is the town of La Union situated above the

river valley. A little over a mile south from the 32d

Parallel, located in the valley itself and over a mile east

from the western margin of the valley, was the old town of

Amoles, which was destroyed by flood in 1860-62.

In 1850, there were two roads up the valley—one on the

west side and one on the east—the former known as the

Amoles or Pasefio Road, the latter as the Fort Fillmore

Road. The location of these roads is in controversy between

the parties to this case. Travellers going north from the

American town of El Paso cr Franklin could take a voad

through the mountains to a point near Frontera and go up

the Fort Fillmore Road; travellers going north from the

(1) See photograph, Plaintiff's Exhibit No. 59, facing Record 3123;

Defendant's Exhibit No. 73 (Record 3338).

(2) See Photograph, Plaintiff's Exhibit No. 2, Record 3004-95, an] see

Oven'’s comments on the photograph, Record 2627-2628,

of the valley, its tracks in some places lying east of :

margin of the river plane and on the low sand hills, a

shallow, with banks two or three feet high. The average

OD per walle Ss Frome § to.5-Fest nn teenie 10

iil

The Plaintiff's Evidence

The evidence introduced by the plaintiff tended to ieee :

that, from 1850 to 1860, the Rio Grande flowed in the fol-

lowing course down the eastern margin of the valley. Be-

ginning at the 32d parallel, about 600 feet from the present

railroad track in the town of Anthony; thence south with

pronounced bend to the west; thence ‘bending back to.

east towards a point called Tres Alamos (about 14% miles

below Anthony) ; thence running straight along the rer eS

margin of the valley for about a mile to a point called L

Bruja; thence running towards the west in a long b

(called Uranguena) ; thence bending back to the east to }

Canutillo—a place about six miles south of Anthony; she

running in an almost straight line towards the sout

ba 1%, Record 1765-1778,

line by them,

s (attached to its bill of complaint as Exhibit 0, and termed 7

me in this Report, the Pleading Map), together with field

so of a survey (nde in 113) of Rio Grande -

ran in 1850; also upon testimony of civil engineers it

support of this survey; also upon the testimony of numerous

(1) Tae Przapeve Map anp THe Post Survey

The Pleading Map and the survey on which it was based

were prepared in the following manner.(2) On Septem-

ber 16, 1912, Charles L. Post, a civil engineer, witness for

the plaintiff, accompanied by ten men of Indian or Mexican

descent and also by Colonel Eugene Van Patten, made a

trip down the east side of the valley, starting at a place two

thousand feet north of the 32d parallel. There, the wit-

nesses pointed out to Post a spot which they called Ala-

mitos; thence the party proceeded south and pointed out

to Post the location of the river bed as it ran in 1850 past

the town of Anthony, also the location in that town of the

(1) Although the parties to this case filed a bill and a cross bill, I have,

for convenience, referred throughout this Master’s Report to the State of

New Mexico as the Plaintiff and to the State of Texas as the defendant.

(2) See Plaintitt’s Exhibit No. 19, Record 1788; Plaintiff's Exhibit No,

pointing out the location of the | which

wea Map, also the location of the Fort Filh

The party crossed and recrossed at various j .

joeacat oxloting:velivostl treck; and saleliag aascek rat

Near the place called New Canutillo, the witnesses identi.

fied the then (1912) course of the river as being its course

in 1850. Arriving at the Courchesne Bridge, the witn

proceeded up the west side of the valley, and pointed ou the

places named on the Pleading Map. ee

Based on the information thus given, aud guided ie

by the location as pointed out by these witnesses, Post, in

October and November, 1912, made his survey as testified

to by him as follows (Record 1833, 1764) :

**Q. How did you preserve on the ground, to show

you had afterwards made the survey, any record of the in-

formation which these people gave you? ike.

A. As I stated before, all along the river line, at the dif. ~

ferent bends that they indicated, I set two by two stakes,

four feet long, driven into the ground about a foot, ai

took note of the location—what it meant and what it located.

Q. As you set those stakes, did you put nunehane¢ on:

at that time?

A. Yes, sir.

Q. When you made the subsequent SAEVEye, did you

all the stakes in place?

A. Yes, sir; all of the stakes were in place at that |

' Q. After you completed that survey, what did 7 o

next? ioe

A. After I completed the survey, I made a map. Lle

cated the railroad track. I surveyed the present river. ~

surveyed the hills—that is the line of the hills on —

of the valley. That is the line at the foot of the hi

as to locate the hills and locate the railroad, and the bt

across the Rio Grande, and the different points that #

had pointed out. On those surveys I made the map.

25°

Is the map which was attached to and filed with the

{complaint in this case a reproduction of that map

show the results of your

us?

ek. SOG; bie.??

The survey and the Pleading Map so made on informa-

-. tion can be accepted as evidence of the location of the

_ river, only to the extent that such location is supported -

by testimony on oath of the witnesses at the hearings in

this case, or by other competent evidence. Of the ten men,

on whose information the survey and Pleading Map were

based, only four testified at the hearings; (one had died

prior to the hearings, and the remaining five were not

called by the plaintiff as witnesses). In addition to these

four, however, there were other Indian or Mexican wit-

nesses who testified at the hearings as to the location of

the river, and who had accompanied the plaintiff’s engi-

neers (Post and William P. Steen), together with Col. Van

Patten, in trips down the valley, after September 16, 1912

and up to February 8, 1914. Post and Steen, in their tes-

timony, give the names of 54 men whom they’ took on trips

to identify the course of the 1850 river. Of these, it ap-

pears that Post took 24, of whom 10 later testified at the

hearings and 14 did not testify; Steen, in addition to Post’s

list, took 30 men, of whom 18 later testified at the hearings

and 12 did not testify. In addition, there were 17 who

testified, but who were not specifically named by Post or

Steen. Of the total of 71 men, therefore, who were taken

down the valley to identify the 1850 river, there were 45

who testified at the hearin , and 26 who did not. Post

testified that all the men (non-witnesses, as well as wit-

nesses) who accompanied him over the ground agreed upon

the location of the river as pointed out to him by his first

group of ten men, and upon the location of the river as

placed by him upon the Pleading Map (Record 1839) ;

“Q. But as to the location of the river, there was a

- wnanimous verdict between the members of the first group

_ and all subsequent groups, who ever accompanied you?

both A. Yes, sir; upon the location of the river.

* * * * * + *

’

and

making their statements in 1912, 1913 and 1914,

agree exactly as to what was the location of a river in

(or from 1850 to 1862), for a distance of th

especially in view of the ages, in 1912-1914

tween 75 and 80 years old. And there is direct

of at least one witness that some of the men who went with

the plaintifi's surveyors could not locate the river. Thus

Longino Mestas testified as follows: (Record 501-502): >

**Q. Near what point was it, then, that you found the old

channel? —

A. What I said was that I showed the place where

river run formerly to the Commissioners. BRS

Q. Near what point that you knew to have existed, in the

old times, did you find the channel of the river? =

A. In all the places from Alamitos to here. I did not

wish to say anything to them. It did not matter to.

either way, but when I came here under oath, I tell

truth. I told them I did not know anything, but since

saw that a good many of those that they brought along ¢

not know anything, then I told them that if they wished

would show them where the Piedras Paradas were, and

house of White. £

Q. Which ones of the witnesses did not know where f

river ran? be

A. Two or three, which came from Dona Ana.

about it, couldn’t het

He did not know.

He was not showing |

y. .

Q. He did not know the country in the early days, then?

A. I say he may have known it, but very poorly, from

what I could see,’’

(2) Testimony or THE PLaIntirr’s WIrvesses ConFiictine

WITH THE Map

I find that whether all the witnesses did or did not agree

upon the location of the River in 1850 when making their

statements to Post and Steen, their testimony at the hear-

ings showed marked differen i

rr .

(1) The plaintiff has Placed great reliance on

have testified that the river

“turned to the east,”

these expressions are

river as claimed by the

most part, in a south

east, down; down towards

remember that the river always

we went up the river on the side where

4—3 orig.

to the river from places located by them on its bank, and

their testimony in numerous instances cannot be reconciled

with the plaintiff’s Pleading Map. :s

It would impose an unnecessary burden upon the

Court to point out these variances in the testimony of

each witness. I call the Court’s special attention, however,

to the testimony of the four witnesses on whose statements,

made: on the original trip in 1912, the Post survey and

Pleading Map were based—Juan de Dios Sais, Faustina

Acuna, Florencio Lucero and Jose Garcia. The first of :

these testified that on his original trip, he only went with

Post south from the 32d Parallel as far as Canutilio Viejo,

i. e., only about half way down the valley. He testified

‘that at La Bruja, the river was about 600 yards distant;

that there was a valley road at La Bruja to the west of =

which was an estero (or slough or lagoon) of from 150-200

varas wide (i. e., 420-545 feet); and that there was a road

in the valley above Durasnito, located between the riverand

an estero.(1) This testimony is irreconcilable with the —

Map, and with Post’s testimony. Acuna testified that

when he first knew the river the Uranguena was “‘farming __

land and bosque,”’ and that he did not remember that there _

was any other bend in the river except the Uranguena,

The Map shows another large bend to the north.(2) La-

cero (a witness on whom Post stated he relied to a con-—

siderable extent) testified that below New Canutillo, there

were two branches of the river, one towards the west and

the other towards the east, and that these two branches did _

not come together again. He further testified as to two

bends in the river between Durasnito and White’s House;

also that there were two wagon roads between White’s —

ranch and Alamitos, one in the valley. and one on the hills. —

He further testified, on cross examination, that in the early —

days the river flowed by Cobrena, Corral de Tapia, the ran- —

cho of Luis Barrio and the Piedras Paradas (all of which —

ran down hill towards where the sun rises.” And again, on being asked: “If —

White’s old ranch was south of Alamitos, then which way did the river

run?” he replied, “I think to thé east.” (Record 847-849) Juan 3

also testified that the river from Alamitos ran “all the time to the

(Record 1102) clearly meaning, however, south. Nestor rh

rafted logs down the river, testified, “I always travelled on the river

jeaning more towards the east than to the west.” (Record 796.)

(1) Record 330, 369, 370, 375-376, 382, 384. Post’s testimony, Record

(2) Record 845, 865.

are on the west side of the valley), although on redirect

examination, he changed this testimony and _ stated

that it was after the destruction of Amoles, in 1862-1864,

that the river ran on the west side.(1) Garcia testified

that the river, in 1850, ran straight from Alamitos (i. e.,

north of Anthony), without bends, all the way to Tres

Alamos; that there was no bend in the river above La

Bruja; that the Uranguena bend was not a large bend;

that the river was ‘‘very far’’ from White’s House; that

the river formed a bend to the west above White ’s House

above the lime kiln.(2)

From the above statements, it appears that each one of

the four witnesses contradicted the Pleading Map in im-

portant details.

There are many variations from the Map in the testi-

mony of the other witnesses who traversed the course of

the river after the Map had been made. The most striking

are found in the statements of at least nine witnesses who

testified that at Durasnito (or between Durasnito and

White’s ranch) there was a large bend in the river to the

west, and that the river was ‘‘very crooked,’’ ‘‘ran like a

snake.’’(3)

Such testimony was utterly irreconcilable with the Plead-

ing Map which shows the river as running in an almost

straight line to the south from Durasnito, without any

large bend to the west.

Clear and substantial variations from the Pleading Map

and inconsistencies with it were also disclosed in the testi-

mony of witnesses at the hearings, with respect to the

course of the river from Alamitos through Anthony and

down to the point where the Uranguena Bend begins, with

respect to the location of the Uranguena Bend, and to the

distances from the 1850 river of various points named on

the Pleading Map.

I find, therefore, that either the witnesses on the various

trips did not all agree as to the location of the river of

(1) Record 1072, 1073, 1074, 1083, 1080.

(2) Record, 1483, 1486, 1489.

(3) See testimony in the Record of R. Marquez (249) ; C. Lucero (419) ;

E. Parra (144); §. Albidres (998); M. Colmenero (97) ; see also testi-

mony of William P. Steen (2966) ; C. Lopez (170) ; N. Albidres (765, 769,

197) ; P. Benavides (1194) ; S. Gonzales (1414), see his sketch; YV, Minjares

(1352), see also testimony of Steen (2045).

1850, or else the witnesses gave testimony at the heat

diverse from the statements made by them to Post

Steen, when they accompanied the latter on their trips,

(3) Testimony oF cue Puaintire’s Wrrwesses IN Gen

Omitting all testimony of witnesses which is inconsistent Fey

with the Pleading Map drafted by Post, there still remains _

a large mass of testimony, which, if it be credited, would

sustain the location of the river as contended for by the

State of New Mexico. The weight, value and credibility ae

of this testimony, however, depends largely upon the cir. __

cumstances under which it was obtained and was given,

Most of the witnesses were illiterate; they were unable to:

estimate distances with any degree of accuracy, in terms

of varas (a vara being about 33 inches), feet, yards, or —

miles; many used only the terms ‘‘far’’ or ‘‘near’’ toex-

press ‘their views of location of the river and other objecis,

All the witnesses were old men, some very old, and some

were only ten years of age or less at the date when they

passed along the river between the years 1850 and 1860. —

There was much evidence that in those years the country

was wild and infested with hostile Indians, so that those

who travelled on horseback or in wagons from El Paso to

Fort Fillmore, Dona Ana and Mesilla were frequently on

the lookout for attack, and paid little attention to anything

else; for as one witness said: ‘‘Life does not come up

again.’’ Many of the witnesses travelled part of the time —

at night. From White’s Ranch to Alamitos, there was but

one, if any, house prior to 1857. The names given by the —

witnesses, therefore, to points along the river with rela-

tion to which points they located the river in 1912-1914, re- —

ferred to bends, hills, bosques, esteros, cottonwood trees,

etc. There was no stage coach route prior to 1857. Many

of the witnesses had not travelled along the river since the —

Civil War; and only a few claimned to lave had any con-

tinuous knowledge of the river. The plaintiff’s counsel —

has stressed the point that, since many of these witnesses

were travelling for the purpose of going to El Paso for the —

great religious feast days which occurred in March, August, -

and December, their trips would have been ape en

forced on their minds; but there was nothing in these fi

dates to enforce recollection of any particular year.

witnesses attempted to fix a definite year with respect to

ae their knowledge of the river, by reference to the date of the

raising of the American flag at Mesilla, in 1854, after the

Gadsden Treaty; but many witnesses were very hazy as to

ears.

Moreover, most of the whole river plane or valley had

been altered in condition since 1850-1860. In those years,

it was uninhabited, uncultivated, and covered in many parts

near the river with thick bosques (groves or forests) of

cottonwood and tornillo trees. The witnesses testified that

the land, in 1912-1914, was considerably settied and culti-

vated; the town of Anthony had come into existence; there

were farms, cornfields, and alfafa fields, paved roads and

a railroad, in many places where they located the bed of

the old 1850 river.(1) Sostenes Gonzales in answer to the

question: ‘‘Did the building of the railroad and completing

the paved wagon road change the appearance of the coun.

try any?’’ replied: ‘‘As different as the difference between

heaven and earth. It is changed a great deal where the

railroad is now.’’ And Juan Albillar testified :

“Q. But without the aid of some persons, could you now

locate the old river bed and points of some sixty odd years

ago?

A. No, sir. I think that I could not.

Q. Everything is changed, the channel of the river, and

the points of the hills, and the whole situation is now

changed ?

A. Everything.

Q. Nothing looks as it did when you first saw ii?

A. No sir.

Q. The railroad has been built?

A. It was, places there, that everything is different.’’

Juan de Dios Sais testified:

Q. And since you first knew the river above White’s

Ranch and up to Dona Ana, a great many changes have

occurred in that river?

A. Many, and it changes every time that the river rises.

(1) See especially the followin

Menero (103);

Q. It changes some every year or two—it has ch

somé every year since you have known it?

A. I believe it has changed. At every rise, it moves

different places.’’ e.

It is well known that the Rio Grande, as has been wi

said in Johnsonian language, is a river ‘‘with anfractuosity

of temper aud uncertainties of habits.” In many years,

the time of annual floods which occurred from May to

tember from melting snow in the mountains to the north

and from heavy rains or cloudbursts, the river covered the

whole valley from its western to its eastern margin. When

the floods subsided, the river at times resumed its former

channel, and at times it did not. There was an avulsive

change in 1862-1864 to the west, for a part, at least, of the

river course; and it swung back in 1884. As testified by

Van Patten, as plaintiff’s witness: ‘‘It was changing back

wards and forwards in ’64 to ’84 and I think in 1904 or

1906. Those were raises in the river, and they changed the _

whole face of the river every time it came down;” “it |

has changed backwards and forwards a great many times,

It has been doing that ever since.”? ‘‘Since ’64, it has been

changing backward and forward all the time.’’ Moreover, —

as testified to by plaintiff’s engineer witness, Post: ‘‘There —

are old river beds or indications of old river beds in various -

parts of the valley, extending in a southerly direction —

through the valley. The map that I have made as indi- —

cating the location of the old river bed shows the river bed

of 1850 as pointed out to me by witnesses. If I had started _

out to survey old river beds throughout the valley, I would —

not be through surveying yet.’’ He further stated that in —

surveying throughout the valley, he had seen old water —

courses and river beds as distinct and more distinct than —

that claimed by the witnesses to be the River of 1850.(1)

The river has always carried and deposited large quan- —

tities of silt, mud and other detritus. At times of flood, —

many old channels were filled with deposits and their

ence effaced. The river valley, at places, notably

White’s Ranch, has been raised in level many feet. ©

Santa Fe Railroad has been obliged to raise its rai

(1) Testimony of Van Patten, Record 630, 646, 647; Post, Record

1950, 1955.

bed several times, and in doing so has, at places, excavated

vom the sandhills at the east.

_ In describing the manner in which they located the river

in 1912-1914, the witnesses testified that they walked along

depressions, low ground, old channels, ete., which they

pointed to Post and the surveyors as the bed of the River

of 1850, according to their recollection; that this bed, as a

rule, showed banks not more than two or three feet high;

but in some places five feet; that for a considerable dis-

tance, at various points, the bed of the old river was then

occupied by the railroad tracks, by the county road, and by

the river as it flowed in 1912-1914. Many of the witnesses

(except those who went in the first party with Post before

he made his survey), testified that, before they made their —

trips, the channel of the old river had been outlined by the

surveyor’s stakes. Several witnesses said that they fol-

lowed the stakes; and one said that the ‘‘surveyor asked

us if these were the places, and I told him yes, there is

where the river used te run’’; although he also said that he

“could find the ruins of the river, where it used to run be-

cause I remember them very well.’’( 1)

Under all the conditions outlined above, I consider it im-:

probable that Indian and Mexican witnesses would be able

to trace accurately, on the ground, the course of a river

as it flowed over fifty to sixty years prior. As entirely ap-

plicable to the situation, I quote the brief filed before me

as Master by Thornton Hardie as attorney for the amicus

curie (Crawford) but who is also counsel for the plaintiff,

and who stated (p. 11) as follows:

‘When Owen went into this country, it was a wilderness.

Its topography is now very greatly changed, due to the de-

velopment of the valley, which was accompanied by grad-

ing, filling in, and road building (Ad. Test. pp. 10, 11, 40),

as well as the washing of sand from the foothills already

mentioned. The difficulties at the present time, which must

be encountered by persons, even those who years ago were

familiar with the valley, in locating an old river channel,

in the face of the changes made by nature and man, are at

once apparent.’’

(1) Record, 928, 936, 987, 1181.

(4) Location or ALamrros

I find particularly doubtful and difficult of belief

identification by the witnesses of the spot called by

Alamitos. As this spot is the initial point from which

they began their location of the old river, special considera.

tion of the testimony seems necessary. Undoubtedly, there

existed, in that year, a point on the east bank of the Rio

Grande known as Alamitos. This point is probably the

same as the station on the E] Paso and Fort Yuma Road

termed ‘‘Cottonwood (ranche),’’ 22 miles distant from El _

Paso, referred to in the Report of the Secretary of the In.

terior in 1858; also probably referred to in John H,

. Bartlett’s Personal Narrative, in 1854, as a place where __

they ‘‘encamped .:: the Alamos or cottonwoods, twenty. ~

eight miles from El Paso.’’(1) Prior to 1857, this was a

camping place or watering place for horses and cattle of

travellers on the road, with possibly a small ranch or pole

hut lowated there. After 1857, it became a stage station

called Scott’s, with an adobe house without rock founda-

tion, and a corral, located near the riverbank, and near a

number of large cottonwood trees. Such being the facts,

the question arises how dependable is the identification of

the spot, as made by the witness in 1912-1914. The four

(out of the party of ten on whose statements the Pleading

Map was constructed) testified, in general, to the facts that

they remembered a camping or watering place near the

river in 1850-1860 on the road to El Paso where there were >

then a number of large cottonwood trees and where there

was a stage station (Scott’s) after 1857; and that they now

(in 1912) found at this place a cottonwood tree and an ap-

parent old river channel; and that from these facts they

identified the spot as the place which they formerly knew

as Alamitos.(2) Similar testimony was given by the other

witnesses who made trips after the original party, and who

based their identifications on the presence at this spot, in

1913-1914, of a cottonwood tree and an apparent old river

(1) See Texas Surveys No. 35 and 34, made in 1849 (Record 3237, 3241); :

see also House Document No. 108, 35th Cong., 2d Sess., page 99; Bartlett's Re

Personal Narrative (Record 2340, 2541).

(2) Testimony in the Record of Juan de Dios Sais (327-328); Faustina ich

Acuna (835-836, 862), Jose Garcia (1482, 1483, 1508) ;

(1070).

Florencio Lucere@

channel which they claimed to recollect as one of the trees

and the river existing in 1850-1860. (There were five who

made the somewhat improbable statements that they saw

the ruins of the Scott Station still existing, in 1913, which

aided them in identification of the spot, one even stating

that he saw remains of manure from old corrals there.) (1)

As stated above, numerous old river channels may be

found in existence throughout the valley. Cottonwood

trees were abundant in the valley in 1850-1860, The tree

shown on the photographs (Plaintiff’s Exhibits, No. 1, 7,

8, 9, Record 3094, 3098) seems unlikely to have been in exist-

ence in 1850-1860. Its identification now as one of the trees

growing then seems impossible. The flat and undistin-

guished topography shown in the plaintiff’s photographs

makes it highly improbable that, without any further ob-

jects to assist the memory, witnesses could identify a spot

there, after a lapse of fifty years or sixty years. One of the

witnesses on being shown a photograph (Exhibit No. 7 ),

and asked what it was replied: ‘‘It may be the same place.

I cannot tell definitely from the picture because the whole

country used to be covered there.’’ (Record 977) ; another

witness said that he had first seen Alamitos in 1853 when

he was eight years old and many times after 1856, and that

in 1913 ‘‘from the very moment I saw the place, I remem-

bered it, as I had been there many times;’’ but doubt as to

the value of his testimony, and that of others is cast by his

description of the method employed by Col. Van Patten

(who had charge of the witnesses) in securing their identifi-

cation of the locality (Record 919-920) :

‘‘Q. Sunday morning, where did they take you?

A. We went to Alamitos.

Q. What did you go for?

A. To find out if I could show the surveyor the place

where Alamitos was.

Q. How did you know that was the purpose?

A. Because they told me so, themselves.

Q. Who told you?

(1) Testimony in the Record of Felipe Madrid (43, 53); Mariano Col-

menero (89, 90, 113) ; Eligio Perea (132, 133, 143); Cornelio Lopez (157) ;

Margarito Lujan (174) ; see also Record 213, 223, 260, 408, , 512-515,

521, 1007, 1126-1127, 1190-1191, 1282, 1546-1547, 1591-1592, 1961, 1

o—3 orig.

A. Don Eugenio Van Patten told me. He asked m

that was the place that I knew before, and I said yes,

Q. He took you to a certain place, and said, ‘‘Is this

place you knew to be Alamitos?’

A. Yes, sir.

Q. And he showed you what he thought to be a river bed,

and asked you if that was the river bed that you knew?

A. That it was so. That I had known it before.’’

(5) Tue Fort Fitmore Roap

An important detail affecting the plaintiff’s oonteatiag:

was the location of the road which led from El Paso up the —

Rio Grande north, past Alamitos to Fort Fillmore, Mesilla

‘ and Dona Ana; and as to this, there was much variance and ©

discrepancy in ‘the testimony of the witnesses. At least six —

testified that this road ran up the valley on the east side and —

through the river plane.(1) Many others, including Van a“

Patten, testified that the road went along the sand hills on —

the eastern bank and not in the valley. Many others testi-

fied that they went up on the hills on the road when hb

water was high, but that when the river was dry they would

come down to the bottom land, at least at places, The loca-

tion of the old road in the present town of Anthony was —

pointed out as being about 130 feet west from the present —

railroad track. There are references to this road in econ- —

temporary documents. Thus, in the Report of the Secre-

tary of the Interior, December 2, 1858, 35th Cong., 2d Sess.,

House Document No. 108, pp. 9, 77: 85 (not introduced in

evidence), N. H. Hutton Engineer, in reporting on the El

Paso-Fort Yuma Wagon Road, stated:

‘“The old road leaving El Paso at the lower end of the

Gorge of the Rio Grande passed for seven miles through —

these narrows over the rolling rocky spurs of the Organ

Mountains and debouching thence proceeded up the wide

valley of the river, over an elevated bottom, well timbered _

and with light clay and sand soil. Crossing near Fort

Fillmore to the right back of the river, it passed three

the town of La Mesilla.”’

(1) See C. Lopez (Record 166, 171-172; R. Marquez (240, 251):

Barela (264, 288); Juan de Dios Sais (332, 369-370); T. Arvizu (1018);

F. Lucero (1071, 1074), a witness on whom Post, the plaintiff's en

stated that he relied to a considerable extent (1870).

_ And’Albert H. Campbell, Superintendent, stated:

“Beginning at Franklin opposite El Paso, the road pro-

ceeds up the valley on the east side of the Rio Grande

touching the river at convenient points for water, crosses

it near La Mesilla and continues up the valley on the west

side to the Picacho,’’

John R. Bartlett in his Personal Narrative, published in

1854 (supra p. 16) containing his journal of a trip from El

Paso to Dona Ana states that he camped ‘‘in the Alamos

or cottonwoods, twenty eight miles from El Paso”’ on

April 19, 1851, and that on April 20:

“moved from camp at 7 o’clock, and continued our journey

along the bottom. Whenever we approached the river,

there were more trees, fine groves of large cottonwood with

occasional mesquite marking the valley. The road is ex-

cellent, and continues so without any repairs, except after

rains, when it becomes almost impassable. At such times,

wagons pursue a course lying at a distance from the bottom,

and over the edge of the gravelly plateau which is never

affected by rains. The soil of the whole valley or bottom

of the Rio Grande, is not surpassed for fertility, in the

world. One thing alone is lacking to render it at all times

productive, namely, vater. For the want of this, a large

portion of this rich bottom is destitute of grass, and has

but little shrubbery.”

In 1850, Anson Mills (a Texas surveyor, who was born in

1834 and later became a Major General in the United States

Army, also United States Commissioner on the Inter-

national (Water) Boundary Commission, surveyed the

largest tract of land in the valley—the Canutillo Grant. In

the same year, he surveyed almost all the land lying to the

north of that Grant, and during the next fifteen years he

made surveys in the valley south of that Grant. He was,

therefore, familiar with the locality. In 1886, he certified

to a map or plat as being ‘‘Original Plat of my Survey of

the Grant of land known as El Canutillo made by me at the

time I surveyed the land.’’(1) The plat shows a road up

the valley west of the eastern foothills, as well as west of

_—

(1) See Defendant's Exhibit No. 15, Record 3222 red numbered pages

5508-5504; Plaintiff's Exhibit No. 65, Record 3149.

the river as claimed by New Mexico. It would appear that

this map was made in 1860; but even if it was made in 1886,

and only represented Mills’s memory in 1886, I am

opinion that the recollection of the topography of 26 years

previous by a surveyor of 52 years of age who had bs

worked all up and down the valley, is better to be a

that the recollection of aged Indians of the topography of —

50-60 years previous. It would appear, therefore, that al-

though there may have been a road on the east side which

went up over the hills and was used by travellers when the

river was in flood, the main road went up the valley bottom

east of the river, and that the existence of such a road there

is incompatible with the location of the river as claimed by

‘New Mexico.

(6) Testimony or Evocene Van Patten

In addition to the Indian witnesses, the plaintiff relied

largely on the testimony of Colonel Eugene Van Patten,

who had been Sheriff and County Judge of Dona Ana

County and Registrar of the United States Land Office, in

New Mexico. The defendant contended that Van Patten

cannot be considered as a wholly disinterested witness,

since he was employed by the State of New Mexico to secure

witnesses who had knowledge of the old river, and to ae-

company them under his charge over the disputed territory

and to elicit their evidence. Prior to 1913, he had been em-

ployed by the persons interested in the Santa Teresa Grant

(and as will be noted infra, p. 52, it is claimed by the

owners of that Grant that its limits would be enlarged if the

contention of the plaintiff in this case be sustained). Van

Patten testified that he knew the river in 1857-58, when he

became, at the age of eighteen, conductor on the first stage

route from El Paso to Fort Fillmore. He served in that

capacity thirteen months. In 1861, he entered the Con-

federate Army. Later he was a chief of scouts, hunting

Indians. After 1864, his chief experience seems to have

been with the west side of the valley, but he evidently had

familiarity with the valley in general. In his testimony,

taken at great length and in great detail, he located the

course of the old river as practicaliy identical with that

shown on the Pleading Map; he modified his testimony on _

eross and re-cross examination and again changed it on re-

- direct examination on several material points; in some

points, his testimony is at variance with that of the Indian

witnesses ; in others, his memory is clearly defective. As

a whole, however, he supported the plaintiff’s contention as

to the location of river of 1850.

(7) Creprsiurry or PLarwtirr’s Wrrnesses

In view of all the evidence in the case, I am unable to at-

tach great weight or credit to the testimony of the plain-

tiff’s witnesses as to the location either of the bed or of the

course of the Rio Grande as it flowed in 1850. It may, how-

ever, be noted that as to the northern section of the river,

i. e., from the 32d parallel to the north line of the Canutillo

Grant, the testimony of the witnesses is, to a certain extent,

compatible with both of the locations of the river in 1850

contended for by plaintiff and defendant respectively ; for

it will be noted by examination of the maps (especially of

Defendant’s Exhibit No. 65, Record 3373) that the river

course in that section, as alleged by each party, ran east of

the centre of the valley, and with the same bends and

general outline, the chief difference being that the river

as claimed by Texas ran about a mile to the west of that

claimed by New Mexico (and in some places only about one

quarter of a mile). The witnesses, testifying after a lapse

of fifty to sixty years, might easily be mistaken as to the

distance of such a river from the

valley. But as to the southern sec

from the north line of the C

there can be no reconciliation

tiff’s witnesses with the locat

for by Texas; since the lat

across the valley and down i in,

miles to the westward from the New Mexico river which

ran straight down the eastern margin.

I do not consider that the testimony of the witnesses was

intentionally untrue; but I am of opinion that their

memories were defective, and especially that they were mis-

taken as to dates, and that they confused the course of the

river as they knew it in later years with their knowledge

of it in earlier years.(1) If not so mistaken as to years, it ig

apparent that many of them were testifying as to the river

(between 1850 and 1860) at those periods of the year when

the river was in flood and may well have been flowing along

the eastern as well as the western banks. There is algo

evidence in the case as to the existence cn the east side of

the remains of an old river channel of 1826, which had _

left long sloughs or esteros at various points; also as to

the existence of old ditches dug at Alamitos, Anthony, and

from Old Canutillo to a point far south.(2) In 1886, when

Randolph resurveyed the Canutillo Grant, he placed in hig

plat or map a ‘‘running slough’’ down the east margin of

the valley almost precisely in the position claimed by the

‘plaintiff for its River of 1850 (see Plaintiff’s Exhibit No.

67, Record 315) ; and in a map (not introduced in evidence)

prepared by the engineer of the International (Water)

Boundary Commission in 1889 (referred to in detail, infra —

p. 83) there is a similar slough (with water) down the

eastern margin. It is probable that the river, subsiding

from floods, at times ran in these sloughs, esteros, or

ditches, as a minor channel or branch, and that it was thus

mistaken by some witnesses for the main channel of the

river.

(8) Tue Joun H. Ciark Survey on THE 32D ParaLEen

The plaintiff contends that the location of the old river

bed at the thirty second parallel made by its witnesses was

strongly corroborated by a reestablishment of the stations

and monuments of the John H. Clark line and survey of

1859, which the plaintiff’s engineers, Post, Steen and Ja}

Turley claimed to have made. (See also testimony of

Thomas R. Owen and A. M. Randolph, surveyors.) At least

(1) Cf. Indiana v. Kentucky (1890) 136 U. S. 479, 518: “All the testi-

mony is to be taken with many allowances from imperfect recollection,

from the confusion by many witnesses of what they saw with what they

heard, or of what they knew of their own knowledge with what they

learned from the narrative of others.”

(2) See testimony of Florencio Lucero (Record 1095); Julio Rivera

(307, 312-313); Jacinto Perea (359-360, 362); Juan de Dios Sais (375,

876-382, 383). As to ditches, see Jose Garcia (1498, 1547, 1508, 1510); —

Claro Lucero (391, 409-410); Florencio Lucero (1077); Dolores ; eae

(1174); Trinidad Benavides (1574, 1583-1584); Valentin Abalos (17

1706) ; Pedro Alejo (1981) ; Juan Albillar (1113-1114) 1121) ; Eugene

Patten, 649, 666-667.

430 pages of the record are devoted to this subject. I shall

-~ gtate the contention as briefly as possible. Clark, in his

Report and in the field notes and maps accompanying it

(printed, in 1882, as Senate Document No. 70, 47th Cong.,

Ist Sess.), set forth the stations from which he took his

angles, the monuments which he located on the 32d parallel

(describing them in detail), and the astronomical observa-

tories from which he took observation on the stars to ascer-

tain latitude; he also marked on his map the location of

the monuments and of the observatories, (1)

The plaintiff’s first contention was that the Scott-Cock-

rell Commission, in 1911-1913, had made a@ mistake in re-

locating Clark’s Monument No. 1, and by so doing had

placed the east bank of the Rio Grande of 1859 three thou-

sand feet too far to the west; this error, it alleged was due

to the fact that when the Commission attempted to fix the

location of Monument No. 1, by scaling its distance from

Monument No. 4, as shown on Map No. 1, reproduced in

Clark’s printed Report (Defendant’s Exhibit No. 61) and

by measuring on the ground the distance so scaled, west-

ward from Monument No. 4, the Commission actually mis-

took Clark’s Monument No. 3, as being his Monument No.

4, This error, the plaintiff claimed, gave the Commission

a starting point for its scale measurement, 3,000 feet too

far to the west—with the result of pushing its relocation

of the Monument No. 1, and of the river bank westward by

a similar 3,000 feet.

The plaintiff’s sceond contention (which I shall consider

first) is based on its interpretation of the statement which

Clark made ini his field notes, referring to his Station No. 1

on the parallel (that Station being the point where he began

his survey). The statement reads as follows (2)

(1) See photographic reproduction of page 5 of Clark's printed field

hotes in Defendant’s Exhibit No. 85 (Record 3067).

(2) See Plaintiff's Exhibits No. 20, 61, 79.(Record 3120, 3130, 3180) ;

nt’s Exhibits No. 61, 63, 84-95 (Record 3372, 3373, 3067): The

te Ducument No. 70, 47th Cong., Ist Sess., is included, by stipulation,

48 part of the Record.

Survey on Parallel 32° 00’ 00”

January 26th. Angles Read from E. by §,

Station 1

From mon. to st. 1 measured (2) 55 ch. 33 ft.; n. fee ale

Waser ee eee 00 00 0

The plaintiff construes this to mean that the monument

there referred to is Clark’s Monument No. 1, and that it

was located at Station No. 1, the two being at the same spot.

In support of this contention, plaintiff’s engineer witness,

- Post, testified that he did not have his attention called to

the Clark Report until after he had made his own survey

and map of the Rio Grande of 1850; that he then proceeded

to take the bearings on mountain peaks and other points

stated in Clark’s field notes, and that he identified Clark’s

Station No. 1 on the ground as lying 600 feet east from the

location of the old river which had been previously pointed

out to him by the Indian witnesses and by Van Patten, (or

rather 843 feet east from the center of old river as go

pointed out). Steen and Turley also so located Station

No. 1. But since Clark, in his Report, described his Monu-

ment No. 1 as located at a distance of 600 feet east from the

Rio Grande in 1859, it was necessary for the plaintiff, in

order to find corroboration of the river as located by its —

Indian witnesses, to establish the fact that Clark’s Monn-

ment No. 1 and his Station No. 1 coincided in location. To

sustain such a contention, the engineers were forced to as-

sume that the words ‘‘from Mon. to St. 1, measured (2) 55 —

ch, 33 ft.; n. baseline’’ meant ‘‘from Mon. at St. 1 measured

(2) 55 ch. 33 ft. to north end of baseline.’’ They contended

that the measurement of 55 ch. 33 feet (i. e., 2,783 feet) was

from a monument and station combined to the north end of

the base line, and not from a monument to a station. In

other words, they construed the word ‘‘to,’’ as meaning —

‘tat.”’ If, on the other hand, the words meant that Clark —

measured (2) (i. e. twice) a distance of 55 ch. 33 ft. (ie,

2,783 feet) from his Monument No. 1 to Station No. 1,t

the Monument No. 1 would be fixed at a point 2,783 fee

west of Station No. 1; and the Rio Grande, as Clark foundif

I find, however,

westernmost point

Commission, since

flowed in 1850) to

If I am wrong

Station No. 1 and

siderations may be

monuments, he had

by triangulation to

be easily identified’

6—3 orig.

from Monument No. 1. If this latter meaning was cor-

rect, the relocation by Post of Clark’s Station No. 1, would

not corroborate the testimony of the Indian witnesses, as

to the location of the river of 1850-1860.

that it is not open to the plaintiff to make

this contention, since I find, as a matter of law, that the

boundary line between the State of New Mexico and the

State of Texas on the thirty second parallel extends at least

as far west as the westernmost point of the Clark line as re-

established by the Seott-Cockrell Commission; that this

is Monument No. 1, as relocated by that

Clark fixed his Monument No. 1, as ‘‘the

initial point’’ of his survey; that under the provisions of

the Joint Resolutions of Congress of February 16, and

August 21, 1911, the State of New Mexico, upon its admis-

sion into the Union, accepted such lines as so reestablished

and cannot now challenge the correctness of the acts of the

Scott-Cockrell Commission ; and that, in locating the bound-

ary between the two States beginning at the thirty second

paraliel and exending south along the Rio Grande (as it

the International Boundary Line, this

Court may not fix a starting point on the thirty-second

parallel east of the westernmost point of the Clark line as

reestablished by the Scott-Cockrell Commission.

upon this as a matter of law, I find,

as a matter of fact, that the contention of the plaintiff is

not correct as to the coincidence of the location of Clark’s

Monument No. 1. I find that Clark

located, in 1859, his Monument No. 1 at a point 2,783 feet

west of his Station No. 1; I find further that, as the Rio

Grande at a point where it crossed the thirty second paral-

lel, in 1859, was 600 feet west of Clark’s Monument No. 1,

it must have been at least 2,783 feet west of the river as

located by the plaintiff’s witnesses. It would unneces-

sarily expand this Report, if I should recite in detail the

base this finding; but the following con-

especially noted. Clark states in his

Report that, in surveying the parallel and marking it with

“‘the boundary line constantly referred

prominent physical objects which can

’ (i. e., mountain peaks), and that he

intended to make his survey so complete that the line oni

be reestablished on the earth, even if all monuments were __

destroyed; for he stated in his Report :(1)

‘«The maps with the notebooks are the only real and last-

ing record of the boundary. The line runs throngh a coun-

try full of striking and prominent topographical features

which can be easily identified; and being referred to in the

notebooks and laid down on the maps in latitude and longi-

tude, they can be taken as starting points from which, with

bearings and distances, the boundary line may be found

and retraced at most any place in any time without ref-

erence to the monuments at all.’’

And he explained the above as follows:

‘What I endeavored to convey to you in my report bear-

ing on the permanency of the monuments was that, even in

the event of their destruction, the line could be re-estab-

lished by a common surveyor without a repetition of the

scientific and expensive operations employed in determining

the parallels and meridians constituting the boundary.”’

From these statements, it is clear that a correct repro- |

duction of his bearings, angles and distances should at

any time relocate his line and the monuments thereon.

Such a reproduction was attempted by the defendant’s

engineers, J. L. Campbell, and R. J. Owen. Clark’s man-

ner of procedure in 1859 was as follows. From January 9

to 17, he was occupied in laying out and measuring his base-

line, on the accuracy of the measured length of which all

his triangulation depended. It was ‘‘carefully and re-

peatedly measured,’’ Clark stated. This baseline 4,750

feet long, extending northerly and southerly, he located

about 2,537 feet south of the 32d parallel, and its location

has been identified and agreed upon ‘within a difference

of 4 or 5 feet) by engineers for both parties in this case. (2)

From January 7 to 18, 1859, Clark was also occupied

in locating an astronomical observatory and ascertaining

(1) See pages 305, 306 of Senate Document No. 70.

(2) The northern end of the baseline is located east of the present Santa _

Fe Railroad track. It is agreed by the engineers for both parties that,

such being its location, its northern end lay practically on the bank or

in the bed of the old river as pointed out by the Indian witnesses, and sagt

that the whole baseline was near to that bed, I am unable to believe that

Clark ever laid out his baseline in such close relation to the Rio —

as it flowed in 1859 (Record 2519). :

its latitude. This he did by taking observations with a

zenith telescope on 38 pairs of stars; and a tabulation of

the results fixed the latitude of his observatory as being

31°, 59’, 48.23”,(1) These observations were made, as

stated by him, to determine the latitude of ‘“A Ist Initial

Point (Rio Grande) 32d Parallel.’? The observatory being

found to be on the parallel of 31°, 59’, 48.23 north latitude,

it was 11.8 seconds south of the 32d parallel; 11.8 seconds,

reduced to feet, is 1,192.53 feet ( reckoning one second at

101.07 feet); and it would seem to me that by measuring

1,192.53 due north from his observatory, Clark must have

reached the Initial Point of his survey on the 32d paral-

lel.(2) This being done, a surveying party was sent, on

January 19, 1859, south to Frontera, that being a fixed and

well known astronomical point; and from there by triangu-

lation and traverse a meridian was run north 80 as to con-

nect up the astronomical work at the 32d parallel with the

longitude as established from Frontera. Then, as Clark

reported, ‘‘the initial point being established and marked

by a stone monument bearing the necessary inscriptions,

I commenced January 26th the survey of the parallel or

boundary line proper.’? The first work on this survey ap-

pears in the entry quoted (supra) ; and it was followed by

the taking of angles from Station No. 1.

Engineers for both parties in this case have agreed upon

a reproduction of Clark’s triangulation of his Frontera

meridian, and upon the location on the ground of the meri-

dian stations from which Clark laid his angles, and upon

the location of his meridian and the point of its intersec-

tion with the 32d parallel. These engineers have also

agreed as to the present location on the ground of Clark’s

stations No. 1, 2, 3, and 4 on the 32d parallel (though they

do not agree as to the location of his monuments). Sta-

tion No. 1, they locate now as about 50 feet east of the

Santa Fe railroad track in Anthony.

I find that the defendant’s engineers, by reproducing

Clark’s triangulation on the meridian ana at the parallel,

(1) See pages 144-151 of Senate Document No. 70.

(2) It is to be noted that Clark marked on his maps his observations

r latitude, by printing

ot; and on Map No. 1,

rked by him as “Initial

No. 2, his second observa-

east end of his map). ~

have established the location of Clark’s observatory as at

point 2,783 feet west of Clark’s Station No. 1, and 1,2094

feet south of the parallel. This location was fixed by them

independently of any measurement of distance, by repro-

duction of at least four of Clark’s angles involving known __

stations or mountain peaks.(1) The observatory as gs

located is practically coincident with Clark’s observatory,

as described by him in his Determination of Latitude and __

as shown by him on his map as lying due south of his Inj. _

tial Point (i. e., of his Monument No.1). It is certain that.

Clark’s observatory in 1859 was east of the river; but the _

observatory, as located above, would be west of the river

if the plaintiff’s theory is correct that Monument No, 1

was located at Station No. 1. Reproduction by the de.

fendant’s engineers of angles taken by Clark at Station

No. 1 further confirms the fact that his Monument No. 1 was

not located at his Station No. 1, but was west of that Sta-

tion.

I consider that the plaintiff’s theory as to the coincidence

of the location of Monument No. 1, with Station No. 1, is

without basis. I consider further that the plaintiff’s theory

that the Scott-Cockrell Commission measured by mistake

west from Clark’s Monument No. 3, instead of from Clark’s

Monument No. 4 is also without basis.

I find, therefore, that as both parties are agreed upon

the location of Clark’s Station No. 1 (viz, as being 50 feet

east from where the Santa Fe Railroad crosses the 32d

parallel), his Monument No. 1 was 2783 feet west there-

from. This finding (which corresponds to the survey made

by the defendant’s engineers) locates Clark’s Monument

No. 1 as 216.5 feet east of where the Scott-Cockrell Com-

mission relocated it (the Scott-Cockrell Monument being

almost exactly 3,000 feet west of Station No. 1). This

slight discrepancy is undcubtedly due to the fact that the

Commission fixed the location by scaling the distances on

Clark’s map; and as that map was reproduced in the Sen- —

ate Document on a very small scale, there was a chance of —

error in measurement. The location of Monument No. 1, —

either as so found by me or as fixed by the Scott-Cockrell —

(1) See also sketches on pages 124 and 128, of Defendant's Brief, ¥:

II; see also reproduction of Clark’s triangulation, used in cross examina-

tion of Steen, inserted in Record between pages 2076 and 2077; see also

Exhibit 20 (Record 3120). ‘

- Commission, is utterly inconsistent with the location of the

river at the 32d parallel as pointed out to Post and to the

other engineers for the plaintiff by the plaintiff’s witnesses,

The Defendant's Evidence

The evidence introduced by the defendant tended to

prove that, from 1852 to 1860, the Rio Grande flowed in

the following course. Beginning at the 32d parallel, at a

point about 2,800 feet west of where the plaintiff’s evi-

dence showed the river as running, thence westerly, south-

erly, and easterly, in a large bend to a point west of the spot

termed by the plaintiff’s witnesses Tres Alamos, and be-

tween one half and three quarters of a mile west thereof ;

thence south to a point slightly north of New Canutillo, the

course being very crooked, and in general less than a mile

west of the course to which the plaintiff’s witnesses had

testified ; thence in a southwesterly direction, across the val-

ley to its western margin; thence southeasterly along the

western margin of the valley, in a very crooked course, to a

point called Piedras Paradas; thence almost easterly across

the valley nearly to its eastern margin and to White’s old

ranch and Frontera; thence southeasterly to the Interna-

tional Boundary Line. The defendant’s evidence tended to

prove that from the point north of New Canutillo to the

Piedras Paradas, the course of the river was west of the

location of the river as testified to by the plaintiff’s wit-

nesses, by distances varying from one‘mile to nearly three

miles.

In proof of the above, the defendant relied largely on a

survey of the Rio Grande alleged by it to have been made,

in 1852, by engineers named Diaz, under the direction of

the Mexican Commissioner Salazar (to which I refer in this

Report as the Salazar-Diaz Survey), and upon United

States maps and other ‘documentary evidence more or

less contemporary with that survey. It also introduced in

evidence numerous old Texas Surveys and patents. It in-

troduced no testimony of witnesses other than civil engi-

neers,

(1) Tue Texas Lanp Surveys anp Parents

Before dealing with the Salazar-Diaz Survey, the Cour;

may find it convenient to consider the situation as to the _

Texas Surveys and patents. I find that, for many years

prior to the admission of New Mexico as a State in 1912,

surveys by Texas surveyors were made and patents were

issued by the State of Texas on substantially all the land

located in the disputed region lying between the location —

of the river to the west as claimed by the State of Texas and

the location of the river to the east as claimed by the State —

of New Mexico.(1) This fact appears to have been ad-

mitted by Charles L. Post, engineer witness for the State

_ of New Mexico, on cross examination (Record 1848-1849);

‘‘Q. Do the Texas patents go to the dotted line on this —

Map? (i. e. Exhibit C attached to the plaintiff’s bill of com-

plaint).

A. The line there, as indicated, is platted: from the notes

of the various Texas surveys to which I have made connec-

tion. I cannot say that they are all patented. * * *

Q. Where did you get that information, Mr. Post?

A. From the county surveyor’s office. * * *

Q. Then you convinced yourself that this line was ap-

proximately the west line of the claims, according to the

Texas titles?

A. That is where their claim extended, according to their

field notes.’’

And later on cross-examination, Mr. Post testified (Record

2884-2885) :

‘‘Q. Mr. Post, do you find from the field notes and the

patents of the Texas surveys, all of the territory east of

(1) The location of these patented lands may be conveniently seen on

Defendant's Exhibit No. 65, Record 3373. A convenient tabular representa-

tion of the dates of the original Texas field notes, surveys, and patents,

together with references to the Record and the number of each exhibit

so referred to, will be found in Defendant's Brief, Part I, inserted op

posite page 260. fe

In the Record, opposite printed page 3222, is Defendant’s Exhibit No. 15,

consisting of 39 pages numbered in red ink containing photographic

ductions of surveys taken from the records of the County Surveyor of —

El Paso County, Texas. In the Record, pages 3223 to 3372, are of

the Texas surveys and patents taken from the records of the

ffice of the State of Texas.

_ where the river ran in 1850, presuming it ran in the valley,

was occupied by those Texas surveys?

A. Do I understand that to cover every portion of the

valley?

Q. Substantially.

A. I can answer that by saying, according to the map,

plaintiff’s exhibit 70.

Q. That the surveys did cover all the land?

A. Well, that the surveys did cover the land as shown

on plaintiff’s exhibit No. 70, platting from the various con-

nections shown according to plaintiff’s exhibit No. 65.

Q. Leaving out any particular exhibit, is it not true that

the territory in dispute, and in the valley, and as substan-

tially claimed by Texas, was covered by its locations under

its patent and field notes?

A. Well, that is a fact, with the explanation that those

locations assumed the position as indicated upon the differ-

ent exhibits. Some locations assumed, and took in, in par-

ticular places, a portion of the valley; others took in more

of the valley.

Q. The latter refers to higher land on the west side?

A. Yes, sir.

Q. The river always ran in the valley, did it not?

A. It is to be presumed so.”’

It is to be noted, furthermore, that the State of New

Mexico, on its Pleading Map attached to its original bill of

complaint has apparently admitted that the Texas surveys

and patents covered all the land in the valley, at least as

far west as the Salazar-Diaz survey of 1852; for on such

Map there will be found marked a broken. line, entitled

“West Line of Surveys made by and under direction of the

County Surveyors of El Paso County, Texas.’’ As to this

line, Mr. Post testified that “the line, there, as indicated,

is platted from the notes of the various Texas surveys to

which I have made connection ;’’ that he had descriptions

of the different surveys made by El Paso County surveyors

which he had made from work previously; that he went uy

on the ground and ran the lines as delineated for the Texis

surveys from the 32d parallel to the south end of the valley;

_ and that ‘from the description as obtained in the field notes

-. — Of the different claims,’’ he convinced himself that that line

wis where their claim extended, according to their field

notes’’ (Record 1848-1849). Eugene Van Patten, also

witness for New Mexico, testified that he was register

the United States Land Office in the years 1906-1909, and —

that while in office he never had an application that inter. — |

fered with a Texas patent, that he knows of (Record 696, -

698, 699) ; that so far as he remembers, he never had offered.

him a location covering any land claimed by the State of —

Texas, or by any person under a patent from the State of

Texas. It is stated in the Defendant’s Brief, Part Two,

p. 262, that ‘‘the occupancy and ptysical possession by

Texas patentees and persons holding under them, of ‘the

land in question, its use, cultivation and enjoyment is un-

questioned.’’ This, I understand, was admitted by counsel

at the hearing before me as Master.

The patents issued by Texas may be divided roughly into _

three groups.

(1) The patents for lands lying between the 32d parallel

and the north line of the Canutillo Grant, and extending

south from that parallel a little over six miles. Most of

these patents were issued between 1860 and 1873, and were

based on Surveys made in the years from 1849 to 1873 (with

the exception of the Marsh Survey made in 1881, and the

Groesbeck survey)—the Surveys being numbered 161, 162,

54, 281, 35, 34, 163 to 172 inclusive. The Maverick Surveys

161 and 162 (made by Anson Mills) were immediately south

of the 32d parallel and were bounded on the west by the

Rio Grande as it flowed in 1860. South of these were Sur- ©

veys 35 and 34, with their western boundary on the Rio

Grande as it flowed in 1849. South of Surveys 35 and 34, -

there were the Maverick Surveys 163, 164, 165, 166, 167,

168, 169, 170, 171, 172 (made by Anson Mills), extending

southerly in the order named (except 172, which was to the

west of the others and bordering on the Rio Grande as it

flowed in 1860). I find that within this latter group of

Maverick Surveys, in 1858, their owner intended to include

all the vacant land between Survey 34 and the Canutillo

Grant, and to have a ‘‘frontage on the Rio Grande.’’(1) I

find that the locations of Surveys 165 to 172 inclusive ean

be now fixed, since in the resurvey of the Canutillo Grant —

(1) See Defendant’s Exhibit No. 15, Record 3222 red numbered

5496 and 5501.

by John P. Randolph, in 1886, the original southwest corner

of Survey 171 was found and identified and its distance

measured east to the railroad track. Consequently, I find

that all of said Surveys were in the river valley and

west of the railroad. On the plaintiff's contention as to

location of the river and of Clark’s Monument No. 1, it

would appear that a large part of all of the above Surveys

would be located in the sandhills above the river valley.

(2) The patent for the Canutillo Grant. This was a

patent for land extending in a north and south direction

between four and five miles, its northern boundary extend-

ing over one third across the valley to the west (about a

mile and a half) and with its southern boundary extending

over two miles, practically the whole width of the valley.

This land was a Mexican grant made in 1823; it was sur-

veyed by Anson Mills in 1860, being Survey No. 173.(1) It

was resurveyed by John P, Randolph 2nd a patent was

issued by the State of Texas, in 1886. The boundaries (ex-

cept possibly the river boundary) contained in this patent

can be substantially identified on the ground. It is certain

that by far the greater part of the land patented was, in

fact, located west of the location of the river claimed by

New Mexico. Much evidence was introduced by the plain-

tiff to sustain its contention that the Surveys, both by Mills

and by Randolph, were incorrect and not in accord with the

boundaries set forth in the original Mexican grant. I find °

this evidence to be irrelevant, inasmuch as the Surveys,

whether they were or were not incorrect, did, in fact, lay

claim to land in the valley bounded on the west by the Rio

Grande as shown on the maps made by Mills and Randolph

introduced in evidence by the plaintiff. It is possible that

these Surveys laid claim not only to all the land east of the

river as contended for by the State of Texas but also to

(1) The Randolph surveys are shown on Defendant's Exhibit No. 15,

Record 3222, red numbered pages 5505, 5506; Defendant’s Exhibit No. 82,

Record 3277; Plaintiff's Exhibit No. 67, Record 3151, see also affidavit of

Anson Mills, August 27, 1886; Defendant's Exhibit No. 83, Record 3389 ;

Defendant's Exhibit No. 62, Record 3373. The Mills Surveys are shown on

Plaintiff's Exhibit No. 71, Record 2868, 3151 (numbered 5321 and 5322);

Plaintiff's Exhibit No, 65, Record 3149; Defendant's Exhibit No. 15, Record

j red numbered pages 5503-5504 ; Plaintiff's Exhibit No, 70, 78, 74, 75,

For a clarifying description of these Exhibits see Defendant's Bri

Part I, pp. 299-319. ”

7—3 orig.

land lying west of the Rio Grande; and the plaintiff has

troduced evidence to that effect.(1) But even if this were

true, it would not alter the fact that the Surveys did lay

claim to the land as far west as the Rio Grande as it Rs

at the dates of the Surveys. The question whether the

Surveys and the patent conformed to the original grant ig

only matter of controversy between the State of Texas and

its patentee or other private claimants, and has no i

upon the issue as to whether, in fact, the patent was iss

for the land described and acted upon by the patentee ae-

cordingly.

(3) The patents for the lands lying between the south

line of the Canutillo Grant and extending south to the end

of the valley.

These patents were issued between 1863 and 1874 (with

the exception of that to Max Miller, Survey No. 260, which

was issued in 1908). They were based on Surveys, made

from 1859 to 1873, numbered 3, 174, 154, 155, 158, 156, 157,

259, 260, 261, 263, 264, 265, 267. (Survey No. 262 was un-

patented.) The lands so surveyed and patented are shown

in their approximate location, as surveyed, on plats in-

troduced by the State of Texas, and prepared by its en-

gineer witness (Defendant’s Exhibits, No. 62, 65 and 67),

I do not find that the location of each Survey on said Ex-

hibits is wholly accurate; for, owing to changes in the

course of the river, the descriptions in the field notes of

certain Surveys (such as Surveys 259, 260, 261, 34, 163)

cannot now be strictly followed. There is much over-

lapping; and it is apparent that according to the field notes

of some of the Surveys, such Surveys would extend across

the river and up on the high banks west thereof. I find,

however, that, whatever may be the exact location of those

Surveys today, the intentions of the surveyor and of the

applicant for land and of the patentee in seeking patent

were to claim lying (at least in part) west of the location

of the river for which New Mexico now contends, and to

claim (so far as the Surveys and patents set up a bound-

ary on the Rio Grande River) land lying at least as far

west as that river then flowed.

(1) Plaintiff's Exhibits No. 65, 67, Record 3149, 3151; Plaintiff's Bx-

hibits No. 70, 73, 74, 75, 76, Record 2860-2868, 3151, 3153.

The plaintiff has introduced much evidence eT" to

rove that the locations of Surveys 154, 155, 158, 156, 157,

350, 260, 261, 262, as located on Defendant's Exhibits No. 62,

65, and 67, are incorrect and has introduced several maps

so constructed as to show that these Surveys may (from

descriptions in the field notes) be located so as to throw

several of them up on the hills to the east, and entirely

away from the river bank.(1) I regard this evidence as of

little value; since the Surveys themselves claimed the river

bank for their boundary.

I find that the western line of the lands claimed in the

above Texas Surveys and patents fairly corresponds with

a Survey of the river made in 1852 under the direction of

the Mexican Commissioner Salazar (see infra). There are,

however, many minor variations in the line of the river

as shown on these Surveys from that shown by the Salazar-

Diaz Survey, which may be due to the fact that the Texas

Surveys were made at various dates (most of them being

made in 1849, 1860 or 1873).

I find further that no evidence has been introduced that,

from 1850 to 1911, the United States of America issued

any patents specifically covering lands east of the Rio

Grande as located by the Salazar-Diaz Survey of 1852, or

conflicting with any of the patents above referred to is-

sued by the State of Texas. On Defendant’s Exhibit No.

68 (Record 3373), which is a copy of a map from the United

patents issued by Spain, Mexico and the United States on

the New Mexico side of the Rio Grande along the southern

in connection with the location of the Rio Grande River

as it flowed both in 1905 and in 1914. No portion of the

land, as so surveyed in New Mexico in 1905, appears to

extend to the east of the line of the river claimed by Texas,

(1) Plaintiff's Exhibits No. 68, 69a, 69b, 72, Record 3151, 3153.

with a possible exception of a small tract near the

Courchesne Bridge.

With reference to a tract of land at the southern end atc an

the valley, there was introduced in evidence a decree of

the United States Court of Private Land Claims made in —

August, 1900, which recited that a grant had been made by _

the King of Spain, in 1790, to Francisco Garcia of a parcel

of land ‘‘situate in the county of Dona Ana in the Terrj- -

tory of New Mexico as at present constituted,’’ bounded

and located as follows: ‘‘The tract of land known as the

Santa Teresa, bounded on the north by that bend known as

the ‘Cobrena;’ and on the south by the bend of the Piedrag

Paradas, the same being somewhat to the north of the

present location of the Southern Pacific Railroad bridge

where the same crosses the Rio de Norte; on the east, the old

bed of the said Rio Grande del Norte, as the same ran and

existed in the year 1853, and on the west the brow of the

ridge running parallel with river.’’ The Court in its de- —

cree confirmed this grant to the heirs, representatives and

assigns of the original grantee (the assigns later being the

Santa Teresa Company) as a valid claim against the United

States—‘‘for the land included within the natural bound- —

aries above set forth.’’(1) This decree was based on a

resurvey and relocation of the boundaries of the grant as —

made in 1853. A patent was subsequently issued by the —

United States, but it was not introduced in evidence by —

either party. The Santa Teresa Company claims land east

of the lines set forth in the patent, on the ground that ‘‘the —

patent lines of the east boundary of the grant did not go far —

enough to the east to cover all the lands that were em-

braced in the grant as it was originally given in possession —

in 1852 by the Mexican authorities.’’ It appears that if —

the eastern boundary of the Santa Teresa Grant is the old ~

bed of the Rio Grande ‘‘as the same ran and existed in the —

year 1853,’’ then if the claim of New Mexico shall be sus- —

tained and the old 1853 bed be established as on the east-

ern side of the valley instead of on the western, the Santa _

Teresa Grant may be, to that extent, expanded and ex:

tended eastward.

(1) Plaintiff's Exhibit No. 93, Record 3181-3185, 3059,

; Record 2079;

Defendant’s Exhibitss Nos. 13, 13a, 13b, 14,

2419, ” 3196-8222. The plaintiff's engineer witness, Steen, testified that

north line of the Santa Teress Grant must be in the neighborhoey 9

a mile south of New Canutillo (Record 2021).

With reference to a tract of land at the northern end of

the valley, evidence was introduced of a decree of the United

States Court of Private Land Claims, in 1901, in the case of

tLe Corporation of the Colony of Refugio, confirming a

Mexican grant made prior to 1853 and affecting lands

located on the west bank of the Rio Grande, south of the

32d parallel. A final decree, March 14, 1903, confirmed

title as against the United States to land ‘‘on the west

bank of the Rio Grande del Norte as the same was situated

in the year 1852.’"(1) A patent was subsequently issued

by the United States, but it was not introduced in evidence

by either party. There is no evidence, however, that this

Refugio Colony Grant would extend east of the river line

claimed by Texas, or east of the river as it crossed the 32d

Parallel west of the Clark Monument No. 1, as located in

1859.

I call the attention of the Court to the fact, in case it

shall desire to take judicial notice, that in the records of

the General Land Office in the Department of the Interior

in Washington, there are official United States Surveys of

both the Santa Teresa Grant and the Refugio Colony Grant,

made pursuant to the decrees of the Court of Private

Claims, said Maps being marked respectively as follows:

“Santa Teresa Grant surveyed by Wendell V. Hall, De-

cember, 1903, under Contract 362 dated November

5, 1902, approved by the Surveyor General, June 16,

1904”” and ‘‘Plat showing the Refugio Colony Grant Tract

No. 1 and 2, surveyed by Wendell V. Hall, United States

Deputy Surveyor, December 23, 30, 1903, under his con-

tract No. 362, dated November 5, 1902.’ On the first of

these there is laid out the Rio Grande as it ran in 1853 ;’’ .

on the second ‘‘Old River as it ran in 1852.’ These United

States Surveys and Maps have not been introduced in evi-

dence by either party. They would appear to he relevant ;

for, although, so far as they show the course of the river

in 1852 or 1853, they would not be binding upon the State

of Texas, yet, being made by the United States Govern-

ment in the year 1903 (nine years before the admission of-

New Mexico as a State), they might be binding upon the

State of New Mexico to the extent that they. sustain the

contentions of Texas, as a recognition of the claims of

(1) Plaintiff's Exhibit No. 93, Record 3181-3186, 3059-3064.

Texas by the United States while New México was 4

tory.

‘On the above evidence (but without consideration

Maps last above referred to), I find that, for at

thirty years while New Mexico was a Territory and p

to its admission as a State, the United States mad

challenge of the claims to lands asserted by the State of

Texas and by its citizens through surveys, patents, :

locations, and that it, impliedly, at least, the

practical line that had been established as the bo

between the Territory and the State, so far as thay as

in the R‘o Grande.

—— (2) Proor or tHe Sazazan-Diaz Survey

As proof of the location of the river in 1852, the Ste —

of Texas, on November 26, 1914, offered in evidence a déey-

ment, in Spanish, accompanied by a map or plat, (together

with an English translation testified to as correct by a

competent witness), entitled:

‘‘Data relative to the survey of the Rio Bravo, Between

Paso del Norte and Los Amoles, made in the year 1852 by —

the Engineer Don Augustin Diaz, by order of the Commis.

sioner Don Jose Salazar Llarregui, taken from the memoir

written by the first and accompanied by the calculations of

courses and the coordinates corresponding to the triangula-

tion between the same points, which calculations have been

made by the Engineer Baltazar Fernandez Cué on Sep-

tember 30, 1911.’’ seals

As objection was made to the admission of his doch ae

in evidence; as the document constituted a considerable at

portion of the defendant’s case; and as the course of the

hearings with reference to it presented highly u

features, I feel obliged to make a detailed statement.(1

certificate that the documents ‘‘contain a true copy 0

field notes which exists in the archives of this iC

on the pages of the collection of papers to which chal

said memoir’’ was made October 2, 1911, by F. P. Paga as

‘*the Mexican Commissioner on the International :

ary Commission between Mexico and the United

(1) Defendant's Exhibits No. 12, 12a, Record 3192, 3194, 2368-2302,

} “ss

and under his official seal.(1) Puga, as Commissioner of

the International Boundary Commission, derived his an-

thority from the Boundary Convention

tween the United States and Mexico of Ma

claimed December 26, 1890

Convention for the arbitra

: rences a

alteration and ch Rio Grande; and

. ‘*shall have the

and it shall be

wo countries to

relating to any

e jurisdiction in

and the Commission might

pel attendance of witnesses

in conformity with the laws of both nations.

To the introduction of this evidence, counsel for New

Mexico objected on November 26, 1914, on the ground that

Mr. Puga had no authority to certify, and that his certifieate

was defective, and on other grounds. Thereafter, on

November 28, 1914, counsel for New Mexico stated at a

hearing (Record 2458) :

“And I can say that before we get through, we will offer

in evidence a properly certified copy of the record of memo-

randa and field notes of Agustin Diaz or so much thereof

as covers this part of the river, from below El Paso and

up the river from El Paso to Amoles, And it will be found

upon inspection, as I am informed, that that certified copy

and the copy in the printed book vary so slightly one from

the other that the difference may be attributed to topograph-

ical errors of no importance. We have that certified copy

ficate was attached a certificate

The undersigned Sui of -

(Signed) “by order

+ under geal,

nd that sald Arwe

t m

ie ° Sieenadgy known Chief Clerk of the

from one of the departments of the Mexican gove

_ With this statement I do not think it will be necessary to

that in at this time. It is a very large and os

thing.’’

A month later, in December, 1914, counsel for New wee

Mexico furnished to counsel for Texas, the copy of the Diaz

notes above referred to, stating to J. L. Campbell, a civil]

engineer, witness for Texas, that the document produced _

“‘was a copy certified by one of the government officers in

the city of Mexico and that I was informed that a compar-

ison of it with what appeared in the printed Chamizal book

showed no difference of any importance, as I have been

_told by the person who made the comparison’’ (Record _

2582). This document contained all the field notes and ~

other matter included in the document offered by Texas as

Exhibit 12 (with the exception of the calculation of courses

made by Engineer Baltazar Cué in 1911.); and it also ine

cluded further data (including the diary of Diaz). Camp.

bell, the engineer, testified that the record of the Survey —

in the two documents agreed and was evidently copied

from the same original record; and he further testified

(for several days) as to his calculations and maps made

from his use of the Diaz notes supplied by New Mexico, and

was cross-examined on the same. Another Texas engineer —

witness, R. J. Owen, was similarly examined and cross- _

- examined, in December, 1914. eee

Over a year later, February 21, 1916, the State of Texas ee

offered in evidence, as Defendant’s Exhibit No. 71, this

document supplied to it by the counsel for New Mexico; aS

also offered in evidence a plat (Defendant’s Exhibit 70),

showing the Diaz Survey as verified on the ground by its

engineer witnesses.(1) No objection was then offered by

counsel for New Mexico to admission of the Exhibit

71, in evidence. Thereafter from February 21 to 24,

the Texas engineers were examined and cross

regarding their work and calculations based on this Bxhibit

and concerning the reproduction of the Survey on

eatth’s surface made by them; and civil engineers (

and Steen) were put upon the ‘stand by New Mexico, No

vember 22, 1916, and were examined and cross-exami MG

(1) See Record 2781-2793, 3373, 3374.

- to their work and calculations based on this Exhibit.(1) The

hearings were then adjourned to November 25, 1918. On this

date, the counsel for New Mexico for the first time made

objection to the admission of Defendant’s Exhibit 7 1; and

he moved to strike it out from the record, ‘‘for the reason

that the same is not so authenticated as to be admissible

in evidence, and the alleged record of the Survey discredits

itself upon its face as appears by the testimony taken, and

that the same is not competent, relevant or material to the

issues in this case.’’ He further stated that when he gave

the translation of Exhibit 71 to counsel for Texas, he be-

lieved that the original copy had been properly authenti-

cated, but that he did not now think that it was.

He also produced the copy of the Diaz notes in Spanish,

translation of which constitutes Exhibit 71. He also re-

newed his objection to the admissibility of Defendant’s

Exhibit No. 12, on the ground that it was improperly au-

thenticated.

“In support of his motion to exclude, counsel for New

Mexico introduced as a witness Thomas B. Catron of

Santa Fe, New Mexico, who testified that in March, April

or May of 1918 (two years after the introduction of Ex-

hibit 71, without objection) he went to Mexico City, at the

request of counsel for New Mexico, having with him the -

copy of the Diaz notes in Spanish (translation of which was

Exhibit 71) which had been handed

New Mexico; that the Department

informed him that there was no o

ment on its files, and that

taken away by Vill

the index of all th

examine the archiv

subordinate of the M

(1) On March 23, 1916, New Mexico offered Plaintiff's Exhibit No. 68 in

evidence (Record 2850), which exhibit was based, in part, upon adores:

is tion contained in Defendant's Exhibit No. 71.

8—2 orig.

and not even any surveys of the Rio Grande from its

up to 31 degrees 47 minutes (although such surveys

been in fact actually made and approved by the C Ses

sioners both of the United States and of be pei Bie Hs

inquired of Mr. Puga, who had then ceased to be 1

Commissioner, and obtained no information ; that ue

self is an interested party, being a

land involved in this case; that the document which he

took with him to Mexico was certified to as follows: (trans:

lates) ‘‘is a copy of which I certify to January 22, 1914,

Romulo Escobar’’(1), attached to which certificate is a eer.

tificate from the Consul General of the United States in

México that the signature of Romulo Escobar is genuine,

and that he was personally known to him to be Sub-Secre-

tary of the Department of Fomento of Mexico; that he

(Catron) was told that Escobar was the officer in charge

of the archives in the Federal Building in Mexico City

in 1914; but that in 1918, he was no longer in charge and

was out of the city; that the official document in the form of —

a book issued by Mexico containing the evidence in the

Chamizal Arbitration Case contains portions of Exhibit 71

but nothing relating to the Diaz Survey north of 31 de- se

grees 47 minutes. eee

On the conclusion of Catron’s testimony, the case wane a

closed by counsel for both sides, November 26, 1918. 4

On this state of facts, I find as a matter of law, (so far

as I have any authority to make such finding) that Defend-

ant’s Exhibit No. 71 was admissible in evidence. Itistrne —

that the certificate is somewhat incomplete and informal;

but even if this Exhibit was not technically admissible, I

am of opinion that under the decisions of United States

v. Wiggins (1840) 14 Peters 334, 346, and United States

vy. Aeosta (1843) 1 Howard 24; /{the objection to its ad-

missibility, made by counsel for the plaintiff, came too late.

(2) The document in question had been in his possession

since at least December, 1914(3) ; he could have ascertained

(1) “Es copta que certifico, Mexico, Enero 22 de 1914, Romulo Bscobar.”,

~ Record 3088; Plaintiff's Brief, Part Two, pp. 65-66.

(2) See also Benson vy. United States (1892), 146 U. S. 325, 332;

ve The engineer, Post, witness for the plaintiff, testified Case t

he discovered the Diaz notes as set forth in the Chamtzal C E

2904) and that he first saw a certified copy of the Diaz § yee

Ignacio y Amoles (i. e., the work hefe involved) “gotten ¢

or elsewhere” at the time when he first testified, i, e.,

(Record 1758).

surveys and calculations

on;

Diaz field notes, but not

missible in evide

custody of the origi-

in accordance with the

nvention above referred

includes the calculations

Cué in 1911, I find not to

be admissible; but these calculations have played no part

in evidence in the case, and the testimony of engineer wit- 5s

nesses both for the plaintiff and defendant has been based

on independent work and calculations made by each engi-

neer respectively. :

(3) AurHENTicrry anp AccurRacy oF THE Sauazar-Diaz

Survey

(a) Authenticity

The plaintiff questioned the authenticity of this Survey,

and suggested that it was not made at the time that it pur-

ported to be made, but that it may have been manufac-

tured in Mexico for some ulterior purpose. I find no evi-

dence to sustain any doubts as to the authenticity; and

since it was to the disadvantage of Mexico that the ‘river |

should be located on the west rather than the east side of

| the valley, I can conceive no reason why a fictitious survey

, ‘ould have been constructed which would establish 4.

boundary contrary to the interests of Mexico. From jn.

ternal evidence in the document itself, from the historical

evidence in this case, and from the fact that the triangula-

tion and traverse contained in the Survey have been repro-

duced on the ground by engineers in this case, I find that

the Survey is authentic.

~ While I do not base my finding upon the fact, it appears

that the authenticity of the document, of which the Salazar.

Diaz Survey introduced in evidence in this case is a portion,

has been conceded by the United States, prior to the ad.

mission of New Mexico asa State. There are on the files of

the Department of State official documents (which were

not introduced in evidence but of which I assume that the

Court may take judicial notice) comprising correspondence

between the Secretary of State and Brig. Gen. Anson Mills

as American Commissioner on the International (Water)

Boundary Commission regarding this Survey, and also the

official minutes of a meeting of the Joint Commission held

at El Paso. October 20, 1908, the latter reading as follows:

“The Joint Commission met at the office of the American

Commissioner at 10 o’clock A. M.

‘‘The American Commissioner stated that he had re-

ceived instructions from his government to collate the origi-

nal field notes of the Salazar survey, recently discovered in

the Mexican archives, in order that they may be ‘applied in

any future case where the Commission is of the opinion

that a more detailed and accurate map may be produced

by resorting to these notes than by an enlargement of the

official maps of the survey of 1853, made by Emory and

Salazar on the very small scale of 1:60000’; that he was

ready to proceed with the work and suggested that each of

the Consulting Engineers be directed to prepare a map

plotted from these original Salazar field notes and for this

purpose requested that the American Consulting Engineer

be furnished with said notes as soon as convenient in order

that he may have same translated into English.

‘The Mexican Commissioner replied that he had received

similar instructions from his government and was p aes

to proceed with the work, but suggested that only the field —

notes of the survey of the El Paso Valley be plotted at th

time ; that the field notes of the survey of other portions

the river could be plotted as necessity demanded and

he would turn over the field notes of the survey of the El

Paso Valley to the American Consulting Engineer as re-

ted.

vi Therefore it was agreed that each Commissioner would

instruct the Consulting Engineer of his section to prepare

a map on a scale of 1:5000 of the El Paso Valley plotted

from the original Salazar field notes.

‘“‘The Commission then adjourned.

(Signed) Anson Mills, (Signed) Wilbur Keblinger,

(Signed) F. B. Puga, ( Signed) César Canseco.’?

Moreover, in the Government document printed by the

Department of State, entitled ‘‘Chamizal Arbitration—

Argument of the United States of America before the Inter-

national Boundary Commission, United States-Mexico,

Hon. Eugene Lafleur presiding under the provisions of the

Convention between the United States of America and the

United States of Mexico concluded June 24, 1910 (Wash-

ington, Government Printing Office, 1911)’’ on page 56, the

United States cites, as one of its authorities for its conten-

tion that ‘‘the river should serve as a continuing water

boundary regardless of changes on its banks or in its course

by aceretion,’”’ the Survey of River 1852, Mexican Case

Annex No. 3, p. 111. By reference to the printed ‘‘Brief

presented by the Government of Mexico to the Agent of

the Government of the United States of America in accord-

ance with Article V of the Arbitration Convention in regard

to the Chamizal Case, dated June the 24th, 1910 ( 1911),’’ it

appears that the Annex No. 3, above referred to, was en-

titled ‘‘ Technical Report of Engineer, D. Augustin Diaz.’’

This ‘Technical Report’”’ is the same document (with»

some minor variations of translation into English) as the

Salazar-Diaz Survey introduced in evidence by the State

It is true that these citations by representatives of the

United States were made with special reference to that por-

tion of the Diaz ‘Technical Report and Survey”? relating

to the river at El Paso. But this the document contained

the full survey of the river, from the initial point at the

parallel of 32 degrees 22 minutes down to Frontera, and

from Frontera to El Paso, and thence south; and there is

nothing in the statements of the United States representa-

tives or in the circumstances § surrounding the ¢

give a basis for any discrimination as to the an

thenticity of any one part of the document over any 9

part.

(b) Accuracy

As to the accuracy of the Salazar-Diaz tee it 3

noted, in the first place, that United States Con oner,

John H. Bartlett, in his Personal Narrative, stated that the

engineers connected with the Mexican Commission (i. ¢,

under the Treaty of Guadelupe Hidalgo) were ‘* gentlemen

of education and graduates of the Military ye :

Chapultepec (Record 2317). And Salazar, in the

Conference with Emory of August 1, 1852, said th

‘ is sure that the surveys for the maps, which he al

submitted, have been done with all the scientific exac

possible’ (Record 2246). oe

At the hearings in this case, the engineers for both de-

fendant and plaintiff testified as to the technical details of

the Salazar-Diaz Survey at great length (in over 200 a

of the printed record). Much of the earlier testinony C Sots

came superfluous at later hearings; for hetween mb

1, 1914 and November 22, 1916 (the dates respectively whe

the first and last testimony on the subject wag given Hs

L. Campbell, a civil engineer, witness for the defendant) —

actual surveys had been made on the ground, to repr an

the data given in the Salazar-Diaz Survey. The pares notes

of the latter contain a system of triangulation from

Paso to Frontera, and from Frontera to a point sli

north of Amoles and about one mile and a half south from

the thirty second parallel; the field notes also contain a —

traverse, by courses and distances, purporting to have been

made by Diaz along the west bank of-the river, accomp:

by remarks commenting on conditions at pci 10

For the triangulation, Diaz took known fixed Rrannere

the Paso Observatory, Muleros Mountain,

servatory, prominent points on the western crest ir

ley, and five points on the river bank, marked RB J

R XI, R XII, R XIU, as the vertices of his tri

the traverse, Diaz established 50-60 numbered stations, vi

lettered signals, along the river bank.(1) The ¢

(1) See Record 2781-2793; testimony of Campbell, sous;

of Post, Record 2900-2910.

: 63

- was hung upon the triangulation points on the river bank

avin places, at about every three miles. As Campbell tes-

_ “Tt appears from the record left by Diaz that his triangu-

lation from San Ignacio to Los Amoles was for the purpose

of fixing with precision a sufficient number of points on the

west bank of the Rio Grande, on which his traverse of the

river bank could be hung, checked, verified, and, if neces-

sary, corrected. Diaz speaks of the triangulation points on

the river bank as being points for the rectification of the

agreed to by the experts for the plaintiff and the defendant,

that such points on the bank of the river as represented by

the Diaz survey were so fixed from Frontera to Los Amoles.

And it is also agreed that Diaz did hang his traverse of

the river bank on these precise triangulation points, making

the latter points in the ttaverse,’’

And he testified further that the location of the traverse of

the river bank ‘‘is exclusively fixed by the Diaz triangula-

tion points of Frontera, R X, R XI, R XII, R XIII. There

is nothing else that fixes the positions of that traverse’’

(Record 3050). If, therefore, the Diaz triangulation

points can now be determined and verified by his angles

taken from and to them, then his traverse can also be de-

termined. I find that the defendant’s engineer witnesses

have reproduced the Salazar-Diaz triangulation on the

- ground; and that it is accurate; and that it can now be re-

produced by any engineers whom the Court may appoint

to survey the boundary. I call especial attention to the

statement by the engineer, Campbell (Record 3049-3050) :

“Fortunately, the Diaz triangulation is defined on the

gtound by natural or artificial objects made points in that

survey and which objects still exist in the positions they

occupied when Diaz made them points in his triangulation.

These are the Paso ¢hurch and the mountain peaks Muleros,

E. G. and H., fully identified in the Diaz field notes and

now discoverable on the ground and which have been dis-

covered and completely identified in relative positions each

to the other corresponding precisely with the record which

Diaz it of them as Sige erga ws ints in his survey,

ot only have these points, fixing by themselves the precise

positions of not less than nine lines of the Diaz trian

tion, been fully identified by the record thereof which

left, but they have been additionally verified each by ap.

proximately one dozen azimuths derived from other points

in the Diaz triangulation, and by an independent triangula. -

tion checking their positions and lengths made by Owen

and myself.’’

I find also that the Salazar-Diaz traverse has been

meandered on the ground by course and distance by the de-

fendant’s engineers, and can be by other engineers; and

that Defendant’s Exhibit 70 entitled ‘‘Reproduction and

Survey of the West Bank of the Rio Grande’’ is gub-

stantially correct(1); and that it represents substantially

correctly the course of the river as surveyed by Salazar-

Diaz in 1852, which can be seen more clearly on Defendant’s

Exhibits No. 65 and 67. There may be slight discrepancies

in the checking of the traverse by the triangulation, at the

points of the latter resting on the river; but- these varia-

tions would affect the course of the river by only a few

feet to the east or west.

There was considerable discussion in the testimony as

to whether the defendant’s engineers had used the cor-

rect magnetic variation in reproducing the traverse. I

find that, whichever magnetic variation was used, the loca-

. tion of the river would not be substantially altered from —

that shown on the Defendant’s Exhibits No. 65 and 67; and

that the question of the proper magnetic variation can —

more properly be determined by the engineers, in carry- —

ing out any decree which shal] be made by this Court for —

the fixing of the boundary. Bi

There was also much discussion between the engineers

as to the location of the point termed by Diaz as Frontera, —

and as to the proper variation in fixing that point. Ifind

similarly that this is a question which need not bede —

(1) See Record 3373; and testimony of Campbell,

out question” (Record 2933); and see the Salazar-Diaz river as plat

by Post, on Plaintiff's Exhibit No. 76, Record 3153; and testimony of Pt

as to it, Record 2909. )

termined at this stage of the proceedings; for even if the

plaintiff’s engineers are correct in their contention, the

resultant reproduction of either the triangulation or the tra-

verse would not place the river anywhere near the loca-

tion claimed for it by New Mexico.

(4) ConroporaTion oF THE Satazar-Diaz Survey sy Con-

TEMPORANEOUS Maps

(a) The Emory Map No. 29

In support of its contention that the Rio Grande flowed,

in 1850, on the western side of the valley and not on the

eastern side as claimed by the plaintiff, and in corroboration

of the course of the river as shown by the Salazar-Diaz

Survey, the defendant introduced several maps covering

the area in dispute prepared by Major W. H. Emory, Lieu.

N. Michler, Lieu. G. K. Warren, Lieu. John G. Parke, and

Capt. John Pope, from 1853 to 1867.(1) Most of these

maps are drawn on too small a scale (especially as repro-

duced in the Record) to be of assistance to the Court.

Two of them, however, are entitled to considerable weight.

As already stated (supra, p. 11) Major W. H. Emory, act-

ing, until December, 1852, as United States Surveyor un-

der the Treaty of Guadelupe Hidalgo, and, after January,

1854, as United States Commissioner under the Gadsden

Treaty, prepared maps of the whole boundary between

Mexico and the United States from the Pacific Ocean to the

Rio Grande and down the Rio Grande to the Gulf of Mex-

ico. These maps were agreed by Jose Salazar y Llarre-

gui, the Mexican Commissioner, at a meeting of the Joint

ission appointed under the Gadsden Treaty, held on

September 21, 1857; and similarly the Mexican maps were

agreed to by Emory, and the two sets of maps were jointly

signed and the respective sets deposited with the respective

Governments.

One of these maps, No. 29 (Defendant’s Exhibit No. 6)

not only delineates the Rio Grade from its intersection with

the parallel of 31 degrees 47 minutes, and southeast there-

to a point below El Paso known as San Elceario;

(1) OS dant's Exhibits No. 1, 2, 3, 4, 5, 7, 8 9, 10, 11; Record 8192,

2355-2363.

9I—3 orig.

but it also contains a delineation of the river n !

that parallel up to the parallel of 31 degrees

Be chad aay decay liga ng in other oot

tially includes the river from m

south line of the Canutillo Grant. (re

49). Spallaaaitn of the river north of the para

degrees forty seven minutes, i. e. wth ot oa

line, of course was not binding upon either the 1 U

States or Mexico, after the Gadsden Treaty; but I find tha

such delineation on this Map No. 29, has considerable evi-

dential value in the case at bar, taken in connection w

the following facts. Major Emory, in his official Rep ae

in 1856 (a report which includes a description both of f his

work under the Treaty of Guadelupe Hidalgo and

the Gadsden Treaty), after stating that the work ay

Commission was shown on a series of fifty-four maps |

which No. 29 is one), wrote that ‘they are too volumin

to admit of publication, and it is believed all the informa.

tion which they contain is condensed in the five maps which

are published.’? Now, Defendant’s Exhibit No. 2. con

of one of these five published maps, viz.: Index Map No.

3, condensed from the other detailed maps of which No. fees

was one. As to these maps, Emory, in his ake

the following very significant statement—that they. sh

**the boundary line and topography of the country con

ous, as far as information has been obtained from ac

survey or reconnoissance’’ (Italics mine) ; and he adds |

further significant comment: ‘‘I have confined myself in

these maps, except the general map (i. e. a map based.

a scale of 1 to 6,000,000 to actual information—derived fre

instrumental survey (italics mine) * * * [I have

sidered that the time has come when. hypotheses #

phy should cease, particularly when the

tion of a country is confided to the hands of olléers %

United States Survey.’’ This statement that the ‘n

were prepared ‘‘from actual survey or reconn oissan

‘actual information derived from instrumental surv

not only with respect to the boundary line under the

den Treaty but also with respect to the ‘‘topogra

the country contiguous,’’ makes it extremely proba

the line of the river and the topography of the ¢

north of the parallel of 31 degrees’ 47 minutes 1

been delineated, on Map No. 29, from the Survey

made of that potion of thie tiver by Chhrles Radaimin.

oy in 1852, and to which I have referred in

(supra, p. —). This Survey of the Rio Grande,

Personal Natrati. oy}

“the ttiaps of the survey, as well as the ai

etic and meteorological suervatons m

- appertaine to the running and marking of the bo

ire, by the ineteustibiog oF the Sectetary of the

placed in charge of the surveyor, Brevet M

Bmory. * * * Frotii the high chardeter of th

as an engineer, the public inay expect, in proper

satisfactory account of his labors in those de nent

Some time must elapse befote the maps to ill strate the

whole country fromi one dveah to thé other can be coni-

pleted.’’

As stated supra (p. 8), this Radziminski Survey was not

introduced in evidence; and it ednnot be found in the official

Government files. I have no doubt, however, that it wis

used by Major Emory in the preparation of Ma: No; 29:

Since this Map, as reproduced in the Record, been re-

tSngte

duced from its original scale of 1 to 60, (or approxi-

mately one inch to a miile) to 1 to 107,000, I have secured

from the State Department an original copper plate en-

graving of the original Map No. 29, on the latger scale;

and T have filed this with my Répott (marked Master's

Exhibit 1), for the inspection of the Court. 'Thig Map

shows that the course of the river as delineated is eritirel

inconsistent with the Pleading May attached to the plain-

tiff’s bill of complaint and téstified to by the plaintiff’s wit-

hesses ; for it appears that the river north from Frontera

is shown as flowing on the pag sidé of the valley and

at a considerable distance from the Fort Fillmore Road

(whether that road ran up:the valley or along the foothills

to the east);

(b) The Salazar Map No. 29.

There is evidence of equal importance on this point

tained in another Map, which was not introduced

dence in this case by either party, but which, being

tained in a Government document, I call. to the attentio

of the Court, in case it shall wish to take judicial ne

thereof. I refer to the Mexican Map No. 29 (known as

Salazar Map), corresponding to Emory’s United

Map No. 29. This Map is annexed to and made a x

a Government document printed by the Department of State

(not introduced in evidence by either party), entitled

‘‘Chamizal Arbitration—The Case of the United States of

America before the International Boundary nission,

United States-Mexico, Hon. Eugene Lafleur, pr

under the provisions of the Convention between the U;

States of America and the United States of Mexico,

cluded June 24, 1910—with portfolio of Maps ( Washington,

Government Printing office, 1911).’’ The Map bears the en-

graved signatures of Emory and Salazar under the words

‘‘Examinado, comparado y convenido”’ and is entitle

‘‘Linea Divisoria entre Mexico y Los Estados Unidos, re

resentando el Punto Inicial conforme al Tratado de 30 de

Diciembre de 1853. Mapa Levantado en 1852 segun los

instrucciones del Aquimensor y Comisario interno Jose

Salazar Llarregui. Triangulation y Topografia por lo

Tentes de Ings. Agustin Diaz y Luis Diaz. Los determin-

aciones astronomicas del Punto Inicial y Paso del

fueron hechas por Jose Salazar Llarregui y. el Ings.

cisco Jimenez, Escala a 1-60,000. Nota. Linea divisoria en.

el Rio Bravo del Norte.”’ Kae

This Salazar Map No. 29, was submitted by the

States as a part of its case under the Convention wi

Mexico of June 24, 1910, which provided (in Article V) that

‘ton or before December 1, 1910, each’ Government

present to the Agent of the other party two or more prin

copies of its case, together with the documentary evide

upon which it relies.’’ In the ‘‘Case of the United St

(submitted by William Cullen Dennis, Agent of the

States), it is stated (p. 7): ‘‘The ease is ccompa

and explanatory of the documents and evidence upon

it relies to substantiate the conclusions reached.”

the documents so relied upon and accompanying t

__ (Washington 1911)’* (p. 56), the United States cited as one

ean sheets No. 29, U. 8. Case, Map ”’; and again (p. 99) it

referred to ‘‘Mexican Sheet No. 29, which was a plan made

in 1852 of the Rio Grande by Engineer Jose Salazar’. It

‘stated that it :

‘differed from United States Sheet No. 29, which was made

six months later (see U. 8. Case Portfolio Maps 6 and 7)

map

been compared with the corresponding map of the Mexican

Commission, and is found to represent the true

The two maps agree except in the bed of the river, which

circumstances is the consequence of the two surveys being

made at different periods, six months apart, during which

the river changed its bed, as it is constantly doing, but

always within narrow limits,’ ’’

It thus appears that, prior to the admission of New Mex-

ico as a State in 1912, the Government of the United States

relied on the Salazar Map No. 29, in an International

Boundary Arbitration Case.

It also appears from the Government document entitled

“Chamizal Arbitration Appendix to the Case of the United

States before the International Boundary Commission—

oF were anv’, Maps re each reduced trom the original scale on which

were drawn (vit. 1 to 60,000), to @ scale of 1 to 102,000 and it in

ted on the face of each Map that the “reproduction {s verified by the

was originally presented for decision t6 thé tn aterti

(Water) Boundary Commission in 1896, the Com

of the United States (Gen. Anson Mills) relied on

graphic copy of the Emory Map No. 29 29; but, cording ta

the Joint Journal of the Commission of a meeting hela De.

cember 11, 1895:

“it was discovered that this photographic copy of Uni

States Sheet No. 29 presented little evidence of having

signed by either of the Commissioners Emory of

or if it had been signed the photograph gave some indica.

tion of erasure on the original, while all the rans oto-

graphic copies of the preceding numbers hive

tures of the two Commissioners clearly, while tlie i if

of the Mexican Sheet No. 29 in the possession of the Mexi.

can Commissioner showed plainly thé sighdtutes of thé

Joint Commissioners.’’ f

After correspondence between the State Department iid ao

the Commissioner of the United States, the United States

adopted the Mexican Map No. 29, according to the follow: —

ing entry in the Joint Journal of the International Bo ee

Commission of the meeting of March 23, 1896 (see “‘Appet- ;

dix to the Case of the United States;’’ p. 112): we

“The United States Commissioner then Pap tothe

Joint Commission a communication from the Secretary of

State dated February 27, 1896, instructing to abandon

the United States Sheet No. 29 of the hoy and Salazar —

Survey, objected to by the Mexican Commissionet in

Journal of December 11, 1895, and té rely wholly upon th ee

Mexican copy of said map, sheet, No. 29, when duly pre

sented and duly authenticated fot the deterinination 0 al ae

cases hereafter to arise in the lotality cdvered by it.” a

The instructions to the United States ae wane

contained in the following letter from Secretary of a i,

Richard Olney (see ‘‘ Appendix to the Case of the United

States,”’ p. 113):

‘<Even were it possible to establish fully the authent

of the mutilated manuscript copy now in our possessi¢

of the engraved fac-simile thereof, as a record of '

boundary under the treaty, the circumstance that it

natrily as to an important part of the boundary line from

the signed original which the Mexican Government is en-

titled to regard as the treaty record of that boundary,

_ would still make it difficult and perhaps a matter of tedious

tiation and gem conventional agreement to deter-

whine which of the two discrepant charts is in fact the tru

boundary. As Matters now stand, I am inclined to ink

that the claim of the title of the Mexican map to be regarde,

as authentic and paramount cannot be contested by any

facts or evidence in the possession of this Government.”’

Thereafter, the Mexican Map No. 29, was used by the re-

presentatives of both the United States and Mexico. It

appears also from a Government document printed by the

Department of State (not introduced in evidence) entitled,

“Proceedings of the International ( Water) Boundary Com-

mission, United States and Mexico. ' Treaties of 1884 and

1889. Equitable Distribution of the Waters of the Rio

Grande. United States Section, Anson Mills, Brig. Gen.

U.S. A., Retired, Commissioner, W. W. Follett, Consulting

Engineer, W. W. Kiblinger, Secretary (Washington, Gov-

ernment Printing Office, 1903),?? that the United States

representatives on this Commission relied on this Salazar

Map No. 29, as evidence not only in the Chamizal No. 4

Case, but also in Cattle Seizure Case No. IV, and in the El

Paso Street Railways Case No. 13. (See the above docu-

ment, pages 47, 48, 70, 100, 140, 173, of which I assume that

the Court may take judicial notice. )

It will be noted from the Spanish inscription on this Map,

that it was made in 1852 (i. e., under the Treaty of Guade-

lupe Hidalgo), and that the triangulation and topography

were made by Augustin Diaz and Luis Diaz. Whatever

appears on the Map, therefore, was clearly taken from the

Salazar-Diaz Survey (supra, p. 60), and under these cir-

cumstances, though the Map itself was intended officially

only to fix the boundary line under the Gadsden Treaty,

the information which it contains as to the topography and

as to the location of the Rio Grande north of the Gadsden

Treaty boundary is undoubtedly of evidential value. Ex-

amination of the course of the Rio Grande from the parallel

of 31 degrees 47 minutes north to the parallel of 31 degrees

_ *? minutes and beyond, as depicted on this Map, makes it

‘Vident that the river there shown is entirely inconsistent

with the course of the river as contended for by t 4

tiff, and is substantially similar to the course depicted «

the Emory Map No, 29. There are some variations in

course of the river as shown on the two Maps, prob

due to the fact, as specifically noted on the Emo:

that the two surveys were ‘‘made at different

months apart during which the river changed its }

is constantly doing but always within narrow limits,”

Measurement of the distance of the river from the Fort

Fillmore Road at the parallel of 31 degrees 52 minn minutes, »

the scale of the reproduced Salazar Map, viz., 1 to

shows it to be nearly two miles, whereas the p

Pleading Map and testimony would show the e

‘be from one quarter to one half mile, at this ona wh

is substantially at the south line of the Canutillo Gr

The distance of the river from the road above Fronte

on the Salazar Map is nearly a mile, whereas, on the plain

tiff’s contention, it was only a few hundred feet.

I call to the Court’s especial attention further the fac

that this Salazar Map is one of the few maps which depict

the Amoles Road, i. e., the road which ran up the valley

on the western side. This road is shown to follow clos

the west bank of the river. If the river as claimed by

plaintiff was on the east side of the valley and if the Fort

Fillmore Road as claimed by the plaintiff ran along th

east bank of the river, then the two roads—the Amoles anc

the Fort Fillmore—would have been close together,

rated only by the river itself; but on this Salazar Map i

is apparent that the two roads are depicted as never: nile

ape a

By Act of Congress of February 15, 1857, ¢. 50 (

162), the Department of the Interior was charged ’

construction of wagon roads west from the Mississip

River—one being from El Paso on the Rio Grande

Yuma at the mouth of the Gila. Construction of this road

~ began at El Paso (Franklin), October 25, 1857, and |

igs ua 1, 1858(1). This road passed up the valle;

Rio Grande to Fort Fillmore.

not introduced in evidence by

- officially published by the D

Road,

directions of

N, H. Hutton, Chief Engineer assisted by G. C. W

Prin’l Asst. Engr., W. D. Cross and P. G. Hume, Assts.

1857-8, Scale 1-600,000."’ It contains a note as follows:

_ “The topography is only represented in detail; when

__ known from actual surveys or sketches made in the field.

The portions in outline are taken from the maps of the

Mexican Boundary Commission and of Lt. J. G. Parke,

Top’! Eng’r. The Rio Grande, Colorado and a portion of

the Gila Rivers are taken from the maps of the Mexican

- Boundary Commission.’’

This Map is on a very small scale

but it shows the course of the Rio

Paso and to the thirty

responding with the co

far to the west

Pp is particularly sig-

t it was made by engi-

rk and surveying on this

tes. A

: positions of Frontera,

d Tucson and the Topography a

10—3 orig.

ary line were furnished by the Office of the United |

Mexico Boundary Commission, Maj. W. H. Emory .

missioner.”” The Map is on too small a scale (1 to 760

or twelve miles to an inch) to be of much value; ; the

course of the Rio Grande is shown substantially as on the

Emory Map No. 29. This, however, appears in E

House Document No. 129, 33d Cong., Ist Sess., (not i

duced in evidence) containing the ‘‘Report of the §

tary of War communicating the several Pacific Railroa

explorations,’”’ in three volumes, in 1855, and is there re

produced on a larger scale of five miles to an inch—on

which scale the course of the Rio Grande as depicted is

more apparent.

. Defendant’s Exhibit No. 10 is another War Department

Railroad Route Survey, made in 1854 and 1855.

Map, on the very small scale of 1 to 950,400 (or 15 miles

to the inch), appears also in Executive Document No. 129

(above cited), where it is reproduced on the larger scale

of 1 to 633,600 (or 10 miles to the inch); and the course

of the Rio Grande, between the parallels of 32 degrees and

31 degrees 47 minutes, as delineated on the ldtter Map, is —

shown as several miles west of the Fort Fillmore road.

As to these Railroad Survey Maps, Major Emory in his

official Report, prefatory remarks, p. XIV said, in 1856:

‘*Since the orders first given for this work which con- __

templated in addition, an exploration of a route fora rail-

road, a series of surveys have, by Act of Congress, been

organized under the War Department for the purpose of __

ascertaining the best railroad route to the Pacific Ocean.

All the information derived from the survey of the bound-

ary line, including astronomical determinations, topog-

raphy, and barometrical levels, have been placed at the _

disposal of the War Department in reference to its re

searches as to the routes for the railway.”’ : te

Defendant’s Exhibit No. 61 (Record 3773, red number

5727) is John H. Clark’s Map No. 1 of his survey of the

32d Faralle} in 1859-1860, as published in Senate Doca-

ment No. 70, 47th Cong., 1st Sess., in 1882. The ori

of this Map ‘cannot now be found in the Govertme files;

but on the copy reproduced on a small scale in the Sena

Document, the course of the Rio Grande is delineat

ner inconsistent with the plaintiff’s continbiod. Stabe

ibly near Frontera. It is to be noted = hdr dbase 7

survey of the parallel was not intended to inc any sur-

vey of the course of the Rio pi eats ibe rane to the

‘parallel, he was, nevertheless, obliged, 1, as part 3 survey,

to triangulate the country between these points in estab’

_ lishing his meridian. Moreover, he was instructed by the

Secretary of the Interior as follows (Senate Ex ceutive

Document No. 70, supra, p. 265) :

‘As soon as the boundary shall have been ascertained and

marked, you will cause a true and accurate map to be made

of the country through which it passes in its extent, em-

bracing as much topography of the adjacent country ag is

possible to obtain. * * ¢&” |

Clark, furthermore, had been one of the surveyors work-

ing under Major Emory in the surveys of the Rio Grande

in 1851-1852, under the Treaty of Guadelupe Hidalgo, and

in 1854-1855 under the Gadsden Treaty; and consequently

must have been entirely familiar with the river in this

locality.

I find that all the above Maps sustain the defendant’s

contention as to the course of the Rio Grande in 1850, and

are inconsistent with the plaintiff’s contention.

Conclusions as to the Location, Course, and Width of the

Rio Grande in 1850

(1) Course anp Location

On all the evidence in the case, I find that the allegations

in the plaintiff’s bill of complaint, as to the location and

course of the Rio Grande, ‘‘as it existed in the year 1850”’,

are not sustained, and that the river did not flow on the

eastern side of the valley as set forth in the plaintiff’s

Pleading Map.

I find the location and course of the Rio Grande ‘ag it

existed in the year 1850’? to have been, in general, as al-

__ leged in the defendant's cross bill, and, in particular, as fol-

. __ lows, on the dates nearest to 1850 of which there is credible

i. evidence,

The carlist date at which there is definite

ey fie coda 4 wck ees

ment No. 1, 600 feet east of the east: bank of the

a ee a eee ur

and 162, at which time the east bank of the ri

428 feet (154 varas) east of Monument No. 1, t

ing shifted to the eastward 172 feet, between J

and August, 1860.(1) I find that the location

bank and of the course of the river of 1850, from

second parallel to a point a few hundred feet no

the northernmost point on the Salazar-Diaz Survey of

- was its location and course shown on the plats and

notes of Texas Surveys No. 161 and 162. 54

Between the extreme southwestern corner of: Survey

16? and the northernmost point of the Salazar-Diaz Sury.-y,

there is a gap of a few hundred feet. The location of

east bank and of the course of the river for this gap, T

was that shown on the plat and field notes of Texas §

No. 35, a survey made on October 4, 1849.(2)

The ‘location of the west bank and of the course

river, in 1852, from the northernmost point of the Sa

70, Record 3373, subject to any necessary correc

that reproduction as to the proper magnetic variations,

_ The location and course of the river through the Canyor

International "Boundary Line, viz., to the parallel o!

grees 47 minutes north latitude, I find was that

the Salazar-Diaz Survey. — |

ant’s Exhibits No. 16, 16a, 17, ‘Ya, Record

(2) Warn - Range e

being the location and course of the river, there re.

mains the question of the location of the middle of the han-—

At RX, station 3, which is just above White’s Ranch, the

width was 180 metres (about 590 feet) ‘‘embracing both

_ At R XI, Station 8, which is about in the middle of the

Canutitlo Grant, the width was 90 metres (about 293 feet).

_ At BR XI, Station 9, which is just below Cobrena, the

width was 304 metres (about 995 feet) ‘through the islet.’?

_ At R XT, Station 3, which is about opposite New Cann-

tillo, the width was 80 metres (about 262 feet).

At R XII, Station 10, which is north of the Canutillo

_ Grant opposite the middle of Texas Survey 169, the width

_ is 200 metres (about 655 feet) ‘embracing both branches

of the islet at its greatest breadth.”’ bs i

At B XII, Station 12, which is opposite Texas Survey

_ 166, and opposite the town of Vinton, the width is 150

metres (about 491 feet). Peres

' At R XT, Station 13, which is opposite the south end of

Texas Survey No. 165, the width is 250 metres (about 819

feet) ‘‘at the greatest breadth of the islet, embracing the

two branches.”’ |

At R XII, Station 20, which is above the south line of

Texas Survey 35 ‘and cpposite the place known Tres

_ Alamos, the width is 60 metres (about 197 feet).

_ At R XII, Station 21, which is west of Station 20, the

width is 200 metres (about 655 feet) “embracing both

Qe ‘branches, ”

The points where widths are given as embracing two

| Sranches of the river or across an intervening islet. may

be eliminated, since the width of the separate branches and

78 :

of the islets is not ascertainable. There remain

four points on the river at which its width was 293,

and 197 feet respectively, or an average of 311 feet.

dence has been given by the engineer witnesses as

ordinary width of the river. Richard J. Owen testifie

the ordinary width of the channel of the river, in the re

since he had surveyed in the neighborhood (i. e., sines 19

was from 200 to 400 feet (Record 2681; Additional T;

mony 29):

**Of course, at places—the sharp bends, where it ev 3

sharply—the river proper—the water, at normal, is quite

narrow, where it comes in towards the nile ox

a few hundred feet away, you often find it from three to fou

hundred feet. The average would run, T should say, abou

three hundred feet. Two hundred and fifty to three hun.

dred feet—this river.’’ Rea

Owen also estimated the width of the river at the 32d

parallel, in 1859, to have been 472 feet (Record 2

Charles L. Post represented the river, on the plainti

Pleading Map, as 400 to 600 feet wide; but he testified

that was ‘‘just an approximation,’’ as he was not in a}

tion to know what the width of river was in 1850 (Record

1851-1852, 2900). J. L. Campbell testified that a channel

“‘to carry the flood waters of the Rio Grande would havea —

normal width of about 300 feet’’ (Record 2518). Bae *

As a result of the above testimony and of the notes in

Salazar-Diaz Survey, I believe that it would be fair to

mate the average width of the river, in 1852, as 300

and, therefore, to fix the middle of the channel ugh

its course as 150 feet from the line of its east bank (wh

that is shown by the maps or plats), and as 150 feet fr

the line of the traverse of its west bank in the 3

Diaz Survey.

Accretion and Avulsion

The location and course of the river in 1852 being

found by me, the question next arises; what, if any,

tive or avulsive changes occurred prior to the date

(1) Defendant’s Exhibit 12, 12a, Record 2382-2385; D a

hibit 71, Record 3384, pages 45-49 of the memorandum.

“9

of the bill of complaint in 1913 But there is a pre-

. nary question for consideration, namely: whether the

‘ordinary rules of law as to accretion and avulsion in State

- boundary controversies are applicable in this particular

gaset For here, unlike the usual case, each party in its

pleadings has made the specific allegation that the channel

_ of the Rio Grande as it existed in 1850 was “and now is the

boundary between the State of Texas and the State of New

Mexico,’’ (italics mine) ; each party asks that the boundary

: line be decreed to be the middle of the channel of the Rio

~ Grande as it existed in 1850 and as shown on its respective

_ Pleading Map; and the plaintiff specifically alleges that

“said boundary has remained unchanged to the present

time.”” The defendant contends that these pleadings consti-

tute an admission that all changes in the river since 1850 had

been avulsive; and that throughout the hearing (from No-

vember 10, 1913 to November 26, 1918, when the case was

closed ), the case was tried on the theory that the location of

the channel of the river of 1850 was the only issue in the

case, that all changes since 1850 had been avulsive, and that

the question of accretion was not involved. | assume that

private litigants, in an ordinary case, might, under similar

pleadings, be estopped from contro

pleaded. But this Court

between States are not to in a technical manner,

st Virginia (1914) 213

for the slightest in-

applicable to indi-

public controversy,

ce after the amplest

channel of the river as

undary’’

_ 1924, it expressly permitted the

Wen testimony on the subject of acc

limited section of the river (flowing saciiek adie

as the Country Club property) ; and its order was

a motion by the plaintiff, accompanied by an affi

the additional testimony of R. J. Owen was desi

specific purpose of proving an accretive change.

liminary question, raised by the defendant, being

posed of, I find the following facts with respect to a

and avulsive changes in the course of the river, 2 e'

1852 and 1913 (the date of the filing of the bill of comple

While some evidence as to accretion has been introduce

by each party, incidentally to other proof, the bulk of ¢

evidence seems to bear upon the question of avulsion,

Rio Grande in this locality has been a river ly

_ ceptible to avulsive change. Its channel in normal |

is very shallow, carrying small amounts of water. Its

is through a sandy soil. Prior to the building of the

phant Butte Dam (in the years 1912-1915) 140 —,

of El Paso, there were almost annual floods in A May

caused by the melting of the snow in the countance. ng

frequently, in September and October, there were

floods caused by cloudburst or heavy rainfalls. The y

from these rain-floods poured down arroyos from the :

of the river, bringing much sand and detritus, and, on

casions, it filled up the shallow main channel of the 1

or created bars or obstacles, so that, when the next 8}

flood occurred, the river on subsiding sought a new ¢

The river in flood times carried much detritus and 20,

per cent of silt or mud, which, in subsidence, was ¢

on the banks, but which was also, at times, so deposited

the former channel as to oust the river into a new ¢ .:

In 18541856, the geologist of the Parke expedition fe

vorted that ‘‘the variability of the current and the bo

of water carried down leads to a continual shifting of the

bed of the river.”’ An examiner of surveys in the ¢ neral

Land Office, detailed to make an astronomical i ‘

of the Texas, New Mexico and Oklahoma houndarkel|

ported to the Secretary of the Interior, in 1905; that ‘‘da

ing the dry season, as in November, 1903, there is ali

no flowing water; during freshets the stream is often

eral mile wide, and in resuming a normal flow, often s

into a channel a considerable distance from its last y

~ channel.’’(1) Van Patten,a witness for the plaintiff, testified

that ‘‘It was changing backwards and forwards in ’64 to

nd forwards all the time.”? Henry A. K

the defendant, testified that ‘‘ when it was’ and then

would go down, we never knew where we were going

the river.’’ Richard J. Owen, engineer witness for

plaintiff and defendant, testified that ges in the

course usually oceurred at flood times, it it was

common occurrence to find the river channel greatly chan,

after the flood waters had receded.(2) The presence of

innumerable old channels through the valley, testified

witnesses for both parties, constitutes

quent avulsive changes; though not all these

remnants of past main

minor channels through which

by the river, became

filled up with sand brought down by the river itself or

torrents from the arroyos from the margin of :

Such is the general nature of the habits

Grande. But it is not easy, from the evidence, to d

in all instances whether any particular change in the river

course was or was not avulsive. Under these cireum-

stances, I have assumed that this Court, in Oklahoma v.

Texas, 250 U. S. 606, 638, has held that the party asserting

an avulsive change has the burden of proof:

“Common experience suggests that there probably have

been changes in this stretch of the Red River since 1821,

but they cannot be merely conjectured. The party assert-

ing material changes should carry the burden of proving

them, whether they be recent or old. Some changes are

shown here and conceded. Others are asserted on one side

and denied on the other.’’

Where it is proved that the river had a certain position in

one year and another position in a subsequent year, there is

a presumption that it reached its later position by accretive

change, unless it is proved that the change was caused by

Ae. ine qteport of Arthur D. Kidder, House Document No, 259, 50th

. Com.

— . (2) Record, Additiona] Testimony, p. 24, 25; see also testimony of Owen,

1—3 orig.

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.