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The Canal Commissioners could not, even by an express agreement, divest the State of its right in the first instance, except in the manner provided by law. They were the State agents; their instructions were written in the statute book, of which the public were bound to take notice: much less could the silence of an individual Commissioner confer a right, after the State had parted with its interest, and that interest had been vested in others. And when it is understood that he met with opposition from the owner from the first commencement of his encroachments, it is not easy to see how such a circumstance could even be set up as a pretence for complaint. In his letter to the Comptroller, which is appended to this remonstrance, and which was written before any of the present owners had any interest in the same, he says: “The course that Commissioner William C. Bouck suggested as the one that might be taken by the board, viz. to pass the water through the locks, I cannot for a moment think they will take.” How vain, then, to pretend that “a new system of legislation was attempted, after the present owners came into possession.” To Hatch was given just such an order as he desired of the board—an order to turn from the race his half of the water: Scovill, the other owner, at that time made no application.
The undersigned deems it unnecessary to enter into an argument to show that the act of 1828, referred to by the memorialist, was intended for the benefit of lessees, and not to enable others to take away their rights and deprive the State of the revenue. The lessees in this case call for no such relief; no exigency exists to bring them within the act. They are receiving rent for water at this time, and they could not themselves allege a total failure of title.
The undersigned has carefully examined that part of the memorial which relates to the injury of the locks and the detention of boats, and is only astonished that any man acquainted with the facts could be found to make such assertion. That some repairs to the locks may have been found necessary, the undersigned is prepared to believe; and that boats, from various reasons, may have been detained at particular times, may be equally probable; but that either of these effects has been produced by the passing water through the locks to seed the level below, is denied. A slight attention to the situation of the locks, and the manner in which water has always been passed and boats let through, will put these strange allegations at rest. These locks are built on a foundation of stone, from twenty-five to thirty feet deep, laid and cemented in waterlime, and fastened with iron bolts and bars; and the bottom is then planked over, and the plank also bolted down. The sides are laid up of hewn stone, from eighteen to thirty inches thick, weighing from one thousand pounds to a ton each, and fastened together in the strongest manner, with iron fastenings; and the whole together forms perhaps the strongest work in America.
The locks are about 14 feet wide, 100 feet long, and 12 deep, and
are filled ordinarily in three minutes, being about 6,000 cubic feet a minute. The greatest quantity required to feed the level below, is 2,500 cubic feet a minute. These locks are emptied and filled in this
manner, every boat that passes. After the close of navigation in the fall, the quantity of water is always increased, for the purpose of supplying the hydraulic machinery that is placed at the wasteweirs along the whole level below, and for keeping the canal to the winter level; so that the quantity of water which has been heretofore passing through the locks, through the winter season, when the race around the locks was full, was much greater than is ordinarily
required to feed the Genesee level of the canal. Frequently, in floods, it is the policy of the superintendent to draw down through
the mountain ridge a great portion of the high water of the Tonawanda, to save the dam and towing path below ; and in such cases,
ten times the ordinary quantity is passed through the locks. The undersigned has often seen a heavy quantity of water running over the top of the gates, and pouring into the bottom of the locks, while
the race around the locks was full; and yet no complaint was heard,
or suspicion excited, of injury to the works. Can it then be supposed for a moment, that works which endure all these shocks, would
be injured and ruined by keeping open one of the three gates to each
lock, and suffering a moderate quantity of water to pass steadily
The examination of the superintendent’s accounts will shew, that for the year past, the expense of repairing the locks has been less than an average of the previous years, since the completion of the canal.
Equally idle is the statement that the boats are hindered in their passage, in consequence of this measure. The locks are generally kept about half full when the water is passing; and there being a double set of locks, the water is only passed through one set at a time, the others, except the lower lock, being always filled for ascending boats. It is a practice when boats come within fifty rods of the locks, to sound a horn. This gives the tenders time to fill the upper lock, when a descending boat is coming, before it arrives. It is let down, and the same process fills the second lock, and so on in succession, until it passes through. There is but one lock-tender employed by the government at this place. The others are hands employed and dismissed by him at pleasure.
The undersigned, before leaving Lockport, having seen the document purporting to contain the proceedings of a grand jury, and supposing it would be used at the capitol, procured the affidavits given below, from the government lock-tender, and the collector and deputy at the head of the locks. Had he believed that any body could be found hardy enough to depose that the locks were injured by passing water through them in this manner, or that boats could be hindered without the fault of lock-tenders, he might have procured a larger number from the most respectable inhabitants. Abstract opinions, however, can weigh but little against demonstration. This extraordinary paper of the grand jury, can receive but one sentence in public estimation. On its face, the feeling in which it was conceived, is marked in legible characters; and in every part it bears the plain impress of the mischievous spirit that produced it. “They “are aware that no legal remedy can be applied to correct evils of “this character; yet it is no less their duty to present this evil than “those of a strictly legal character.” That is, they are aware that the laws of the country are not violated, that they cannot interfere in their legal capacity, but in the true spirit of officious intermedling, it has somehow or other become their duty, while in secret eonclave, when the public had a fair right to suppose they were fulfilling the legitimate duties of their station, to enter into a private litigation, pending before the judicial tribunals of the country, and publish a document prepared by one of the parties to the controversy, without the knowledge of the other, and done most obviously to affect the decision of the question then pending.
How much truth there is in their statement, “that persons are obliged to go 30 or 40 miles to mill, instead of 10 or 20,” in consequence of this measure, may be seen from the statement of the Canal Commissioner, the letter of Mr. Bissell, given below, and even from the memorial itself. There is now in full operation, at Lockport village, eight run of stones; another mill of four run, will be in operation the ensuing season. There are carding machines, cloth dressing establishments, and various kinds of machinery fit for the accommodation of the public, all of which must have been well known to the grand jury at the time they produced this document. The following is a copy of a letter from Mr. Edward Bissell, the owner of a flouring mill kept in operation by the surplus water.
Lockport, Dec. 31, 1830.
LoT CLARK, Esq.
SIR-Your letter of the 30th inst is received and I very cheerfully hasten a reply. In answer to your questions, I have to state, that I have a flouring mill situated on the canal at Lockport, about one hundred rods below the mill of Lyman A. Spalding; that it contains six runs or sets of stones, and is capable of grinding 1,200 bushels of grain a day; that I have done all the customers work that has been brought to my mill during the year past, generally within a few hours of its delivery, and always within twentyfour hours, (unless in a few instances, where a quantity has been brought and not wanted immediately) with the exception of one or two short periods when my mill was undergoing repairs. I know of no place where custom work of the kind has been done more promptly for the year past, than in Lockport, nor do I believe there is any in the state.
Yours, very respectfully,
The statement of the memorialist, that in the opinion of some of the oldest inhabitants, there was a water power at this place before the construction of the canal, must be known to many of the members of the legislature to be an entire mistake, and is without any just foundation. All the stream that run from the brow of the ridge into the ravine, was cut off by the canal, and is still plain to be seen dropping from the banks into the deep cut; and for more than seven months in the year, might be passed through an inch pipe. In a sudden flood, there is a quantity that may possibly be sufficent to propel two run of stones; but as soon ss the flood subsides, it sinks back into a small rivulet, insufficient for any machinery. But of the deprivation of this water, whatever it may be, the memorialist has no right to complain; he was never the owner of any land on which it run. It was taken into the main canal before Comstock sold, without complaint on his part, and without suspicion that he had been deprived of a valuable water power. It would indeed ill be
come any of the land owners of Lockport, to complain of the consequences resulting from the construction of the Erie canal. Before it was commenced, nearly the whole of the corporation was a barren waste; on its completion, one of the most prosperous villages in the state sprung up, and a territory, which before was worth less than 500 dollars, could not have been purchased for half a million.
Finally, the undersigned remonstrates against that part of the prayer of the memorialist which seeks the cancellation of the lease, because it strikes at a vested right, and would establish a precedent subversive of public faith. Because it asks for a palpable violation of the constitution of the state, and would be opposed to every rule of morality hitherto held sacred by this government. He remonstrates against that part of the prayer which seeks to counteract the Canal Commissioners in the details of their duty, and which requires their support to measures defrauding their own lessees, who have relied on their protection.
But he submits the case to the legislature, confidently expecting that while they permit the memorialist “to enjoy his own in peace and security,” they will lend him no aid in possessing himself of the
property of others.