there is no effective legal remedy when water is thus unjustly appropriated and in separate States it is still more difficult, while to the inhabitants of Mexico it would be impossible to make any successful effort at redress.

I return herewith copy of the protest with attached papers, among which I beg to call attention to the letter of W. E. Baker, dated Las Cruces, N. Mex., July 12, 1895, who, I understand, has charge of the land office there, in which letter he states that the only "patent" for the Elephant Butte Reservoir of the Rio Grande Dam & Irrigation Co. consists of the words, "Department of the Interior, Washington, D. C., February 1, 1895. Approved subject to any valid existing rights. Hoke Smith, Secretary." This is much broader and more comprehensive than the words used in the enclosed letter marked "A" regarding the reservation of rights and is probably the exact language given to the promoters of the Rio Grande Dam & Irrigation Co. (Ltd.).

I have the honor to be, Sir,

Very respectfully, your obedient servant,

ANSON MILLS,

Colonel 3d Cavalry, U. S. A., Commissioner.

[Inclosure "A".]

DEPARTMENT OF THE INTERIOR,

Washington, February 1, 1895.

The COMMISSIONER OF THE GENERAL LAND OFFICE.

SIR: I am in receipt of your letter of January 21, 1895, submitting for the approval of this department the articles of incorporation and due proof of organization of the Rio Grande Dam & Irrigation Co., together with a map showing the location of a proposed reservoir site on account of which a right of way is claimed under provisions of the act of March 3, 1891 (26 Stat., 1095).

The map of location of the reservoir site in question has been before the subject of consideration by this Department, the same being submitted on appeal from your office decision of May 18, 1894, requiring the placing of monuments to witness the public survey corners which would be destroyed by the use of the proposed reservoir, and the decision of your office requiring the placing of monuments to witness such destroyed corners was affirmed by this department October 10, 1894 (19 L. D., 256).

The company has since complied with the requirement of your office, and your letter of January 21, 1895, recommends the approval of the company's articles of incorporation and also its map of location.

Seeing no reason to disturb the recommendation of your office, the same are hereby approved, subject to any valid interfering right with the right of way on account of the proposed reservoir. The maps and accompanying papers are herewith returned. Very respectfully,

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE,

Washington, D. C., August 15, 1896.

The Honorable the SECRETARY OF THE INTERIOR.

SIR: I have the honor to submit herewith articles of incorporation, proofs of organization, two maps, field notes, and other papers filed in the land office of Las Cruces, by the Mesilla Valley Land & Irrigation Co., as an application for right of way for canal and reservoir, under sections 18 to 21, act of March 3, 1891 (26 Stat., 1095); also a map, field notes, and other papers filed in the same land office, under the same act, by the Rio Grande Dam & Irrigation Co., as an application for canal right of way.

The applications have been examined and found to be in substantial conformity with the regulations and the township plats, except as hereinafter stated. The proposed rights of way do not lie within the limits of any Government reservation.

The application of the Mesilla Co. was first filed in the local office February 18, 1893. The location of the reservoir covered the approved right of way of the Rio Grande, New Mexico & Pacific Ry. Co. The railway company on being notified files its objection to the allowance of the reservoir right of way, and upon consideration by this office, the application of the Mesilla Co. was rejected for this and other reasons. The latter filed an appeal, and after the map and papers had been sent to the department the railway company withdrew its objections, and the application was returned to this office for further action by departmental letter of May 16, 1894. It was thereupon returned to the company for correction so as to comply with the regulations. On June 10, 1895, the company refiled its application submitting a new map of its reservoir, the one now under consideration. The new map differed somewhat from the old one in the location of the reservoir, more particularly in the location of the dam, which was moved down the river somewhat less than one-half mile.

On July 11, 1895, the Rio Grande Dam & Irrigation Co. filed an application for canal right of way with its diverting dam a very

short distance below the dam of the Mesilla Co.'s reservoir, there being a space of about 200 feet between the center lines of the dams at their points of nearest approach.

Representations were made to this office on behalf of both companies as to the priority of claim to right of way of each. By office letter of October 24, 1895, corrections were required in each of the applications, and the companies were allowed 30 days for that purpose and to make showing as to priority of claim to right of way, and ten days more for filing additional statements in reply. Upon request of the Mesilla Co., these items were extended to January 10 and 20, 1896, respectively.

Both companies filed statements which are submitted herewith. From the statements submitted it appears that the Mesilla Co. was incorporated in December, 1889; the purposes of the company being, among other things, to construct and maintain reservoirs and canals. The beginning point of its canal is described in its articles of incorporation as a point of rocks known as the Porphyry Dyke, about 5,000 feet northerly from the station of Fort Seldon on the Atchison, Topeka & Santa Fe Railroad; this point appears by office map of New Mexico to be in T. 21 S., R. 1 W.

On April 16, 1892, Frank W. Smith filed in the office of the clerk of the probate court and ex officio county recorder a claim for 500 cubic feet of water per second for a canal with its dam in sec. 24 T. 21 S., R. 1 W. The said paper also contains a statement that Mr. Smith commenced the construction of a canal from a point in the Fort Seldon Military Reservation known as the "Point of Rocks" in December, 1889, which is in the same township; the former canal is intended as a feeder for the latter. The application is made by Frank W. Smith, president of the Mesilla Co., but there is nothing further to show that it is made on behalf of the company. On February 18, 1893, the Mesilla Co. filed applications as already stated, for reservoir and canal right of way under the act of 1891 (supra) in the local land office at Las Cruces, N. Mex., the dam for both being located on the map in the NE. SW. sec. 30, T. 20 S., R. 1 W.

On February 21, 1893, the Mesilla Valley Land & Irrigation Co. filed with the clerk of the probate court another claim for water amounting to 2,000 cubic feet per second for its canal and reservoir stating that the filing theretofore made having been found insufficient this additional filing was made and a new head adopted for a feeder to the formerly located canals. The initial point is described so as to place the dam in the same location as above in sec. 30 T. 20 S., R. 1 W.

In March, 1895, the Mesilla Co. amended its articles of incorporation providing for a canal with its dam at the same point as

that shown on the map filed for its right of way application in 1893. The initial point of the reservoir is placed in sec. 17 T. 20 S., R. 2 W.

The Rio Grande Dam & Irrigation Co. was incorporated in September, 1893.

On June 3, 1895, the Rio Grande Dam Co. filed in the proper county office a claim for canal and reservoir right of way with dam in NE. NW. sec. 31 T. 20 S., R. 1 W., claiming 1,000 cubic feet per second of water of the ordinary flow of the river and so much. of the flood waters as it may be able to store in its reservoir. On July 11, 1895, the Rio Grande Dam Co. filed in the land office at Las Cruces an application for canal right of way as already stated, the same being in NE. NW. sec. 31, T. 20 S., R. 1 W.

In its first statement, filed December, 1895, the Rio Grande Dam Co. claims that there is more than sufficient water for both companies and asserts that "the question of priority of water right between them is not a material one under existing conditions" and asks that its application "be approved without prejudice in the matter of and without reference to the application of the Mesilla Valley Land & Irrigation Company." It is not clear whether this means that the Rio Grande Dam Co. does not object to the recognition of the priority of the Mesilla Co. But in its additional statement, filed January 20, 1896, the Rio Grande Dam Co. claims that the Mesilla Co. is not authorized to receive the approval of the entire right of way asked for and claims that the Mesilla Valley Co.'s application should be rejected in so far as it conflicts with the claims of the Rio Grande Dam Co.

The latter company claims that the Mesilla Co. is not qualified to receive a grant of right of way over the lower half mile of its proposed reservoir for the reason that it has filed no claim for water under the Territorial laws at the point where it is proposed to locate the dam for its reservoir, in sec. 31 T. 20 S., R. 1 W., its claim for water being for a point nearly one-half mile further up the river. The Rio Grande Dam Co. has filed its claim for water at a point below the lower location of the dam of the Mesilla Co.'s reservoir. It therefore claims that the Mesilla Co. is not entitled to take water between those two points. This may be so, but it is a question which this office is not authorized to decide, for by the express terms of section 18 of the act of 1891 (supra), the control of the water is left entirely within the jurisdiction of the Territory, and the decision of controversies as to water right must be left for the Territorial courts. If the Mesilla Co.'s application were to be approved, and its dam located at the lower point, it would not be difficult to determine how much water the Rio Grande Dam Co. is entitled to for this half-mile stretch of river, if its claims be found the better.

As to the question whether the Mesilla Valley Co. is entitled to receive right of way for this lower half mile of its reservoir, it is observed that by its amended articles of incorporation of March, 1895, it is authorized to take water from the Rio Grande river at any point in New Mexico and El Paso County, in Texas. The amended articles of incorporation describe the reservoir as lying in the western part of T. 20 S., R. 2 W.; and in the beginning of the field notes of its water-right notice the initial point is similarly described as in the eastern part of the township. There was the same error in the field notes filed in this office in February, 1893, but the map filed at that time showed the location of the reservoir in the eastern part of the township and approximately on the location shown by the present map. The maps and papers show that T. 20 S., R 2 W. was beyond doubt a clerical error, and that it should have been T. 19 S., R. 2 W. In view of the ease with which such corrections in articles of corporation may be made under the Territorial laws, this office does not consider that the error noted should interfere with the consideration of the right of way application. Were this consideration to be looked upon as important, the application of the Rio Grande Dam Co. would be fatally defective, inasmuch as its articles of incorporation authorize it to take water from the river only "within townships thirteen (13) and fourteen (14) and range three (3) and four (4) west in Sierra County, New Mexico." These are intended to be south townships and are some 50 miles from the place in controversy. But, as stated before, the necessary amendments of the articles of incorporation being so readily made, it does not seem important to insist upon them in such cases as the present before approval, inasmuch as it is within the scope of the company's authority to construct and maintain dams, reservoirs, etc.

The question before this office is as to the priority of the application for right of way. Upon this nothing is shown to offset the facts shown by the records of this office that both the original application of 1893 and amended application of June 10, 1895, of the Mesilla Co. are prior to the application of the Rio Grande Dam Co. filed July 11, 1895.

The Mesilla Co. being, in the opinion of this office, sufficiently authorized to take such right of way, and its application being in due form, it is recommended that its articles of incorporation and proofs of organization be accepted, that its maps be approved subject to all valid existing rights, and that the approval be of a date prior to that for the canal of the Rio Grande Dam Co.

The map and papers of the Rio Grande Dam Co. are in proper form except that the map was not filed within 12 months after the location thereof, the definite location having been adopted February