by John Marshall Harlan

“ If it appears that injustice may be done by proceeding to a final decree upon the record as it is presented to us, we have the power to forbear a determination of the merits and remand the cause for further preparation. ”

“ On the 2d day of January, 1900, a finding of facts was filed in the court. In the last paragraph of that finding it was stated 'that the intended acts of the defendants in the construction of a dam or dams, or reservoirs, and in appropriating the waters of the Rio Grande, will not substantially diminish the navigability of that stream within the limits of the present navigability.' The court ordered a decree to be prepared dismissing the bill. ”

“ We do not think the case properly prepared for decision; and therefore direct that the decree be reversed and the cause remanded, with liberty to the plaintiff to amend his bill.' In United States v. Galbraith, 22 How. 89, 96, 16 L. ed. 321, 323, the question was as to the validity of a claim for five leagues of land. The Board of Land Commissioners decided against the United States, upon the ground that there was an absence of any rebutting testimony that would overcome the prima facie case made by the claimant. ”

“ These treaties with the above and other acts of Congress being in force, the present suit was brought, May 24th, 1897, in the district court for the third judicial district of New Mexico the plaintiff being the United States of America, and the original defendant being the Rio Grande Dam & Irrigation Company, a corporation of that territory. By an amended bill, the Rio Grande Irrigation & Land Company-a British corporation doing business in the territory of New Mexico-was also made defendant. ”

“ The motion for a continuance was sustained only so far as to fix December 12th, 1899, as the date for the final hearing of the cause. The hearing was commenced on the latter day, and continued from day to day until December 21st, 1899, when the cause was taken under advisement. ”