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thereof, the said Hathaway and Gooding, bound themselves to construct such ditch, which was done by them, and cost abɔut $4,000; and on the same day he execuled to them a contract for water sufficient to propel four run of stones, which was to be conveyed in the ditch; an extract of which contract is as follows:
“ This agreement, made and concluded this 12th day of July, in the year of our Lord 1827, by and between Lyman A. Spalding, of the first part, and John Gooding and Sylvester R. Hathaway, of the second part, as follows, to wit: Whereas a deed or instrument in writing, made and entered into, by and between the same parties to this agreement, the said parties of the second part therein and hereto, have covenanted and agreed, to build and construct a certain millrace or waste-weir across the lands of the said Lyman A., lying on the side of the ravine or basin in Lockport, and to continue the same on to the lands of the said John Gooding, situate near the end or foot of the grand ravine or basin; and by which said deed or instrument in writing, the said Lyman A. among other things, granted, aliened and conveyed, to the said parties of the second part, their heirs and assigns for ever, the land upon which the said millrace or waste-weir is to be made and constructed, for the uses and purposes only of making such race or waste-weir, and for keeping the same in repair, reference being herein had to said deed or instrument in writing, for the better and more perfect understanding of this agreement. Now, in consideration of the premises and make ing of such inill-race or waste-weir, it is hereby covenanted and agreed by and between the said parties of the first part and second part hereto, as follows : That the said party of the first part, his heirs and assigns, shall and will, by proper and reasonable, good and sufficient acts and deeds, conveyances and assurances by the said party of the first part, his heirs and assigns, to be done, made and executed, secure to the said parties of the second part, and to their heirs and assigns for ever, so much of the surplus waters of the Erie canal as shall be sufficient to drive or propel four runs of mill stone of four and a half feet diameter, by the use of a twenty-four foot wheel, said water to be taken directly from said mill-race on the wheel, and to be used asterwards at pleasure of the said parties of the second part, their heirs and assigns : Provided always, there shall be a sufficient quantity of water permitted (by the state or its agents,) to pass in said waste-weir or mill-race, for the purpose aforesaid, over and above what shall be necessary and required by the said Lyman A. or his heirs or assigns, to propel eight run of
mill-stone in the building now by him owned and occupied as a mill, it being understood that said Lyman A. and his heirs and assigns, are at all times to be at liberty to use water sufficient for the said eight runs of stone in his mill, or to use the same quantity of water for any other purpose ; and it is assured the above mentioned quantity to the said party of the second part, only in case there should be an overplus sufficient for that purpose. Provided always, and the above agreement on the part of the said party of the first part, is made upon the express condition, that the said parties of the second part, their heirs and assigns, shall and do, within two years from this date, so elect, and shall and do pay, and secure to be paid, unto the said party of the first part, his heir, executors, administrators or assigns, the sum of $4,000, with interest thereon, from the 12th day of January next, as follows, to wit: one thousand dollars, and the interest thereon from the said 12th day of January next, to be paid at such time as the said parties of the second part shall so elect as above mentioned, and the remaining sum of three thousand dollars, with interest thereon from the said twelfth day of January next, to be paid in three equal annual payments hereafter, the first of which three equal annual instalments, and interest thereon, to be paid in one year, after the time above mentioned for the payment of the said sum of one thousand dollars first above mentioned, to wit, from the time of making such election.”
It is true, as stated in the memorial, that Charles E. Dudley, Benjamin Knower, and others, were interested in a tract of wild land, in the counties of Erie, Niagara, Genesce and Orleans, of which Lockport is near the central point, and that the undersigned has also an interest in the same; but the memorialist is mistaken in supposing Henry Seymour and Thomas W. Olcott interested in that tract. In the month of October, 1828, the undersigned went to the western country, to examine the tract mentioned, and determine whether he would remove there, and take charge of it; and while at Lockport, opened a negociation with some gentlemen, who had some time before announced the design of founding a village below the locks, and taken measures for the purpose.” The whole bad, the season previous, been laid out into village lots; improvements were commenced and rapidly progressing. The negociation was for six undivided tenths of about three hundred acres, which included about one half of what is called the Lower Town. The whole ne. gociation was carried on by the undersigned, and he induced such gentlemen of capital as he could obtain, to become connected with
him; and it eventuated in a purchase of an undivided interest of six tenth parts of the tract last mentioned, for about 2,000 each.
The purchasers were Charles E. Dudley, Thomas W. Olcott, Benjamin Knower, George Field, Henry Seymour, and the undersigned. Although the undersigned is not disposed to interfere with the operations of the memorialist, or his coadjutor, against the Canal Commissioners, it may be proper to state, that Messrs. Dudley, Olcott, and Knower,could not have known when they agreed to take interest in this purchase, that Mr. Seymour would take one of the shares, for he had not then agreed to become a purchaser; and the undersigned never heard, pending the negociation, nor afterwards, that the agreement of any one of the partners was put upon any such ground. And it was not until after the undersigned had agreed to make the purchase, that he saw Mr. Seymour on the subject. He then called on him at Utica, and persuaded him to become a proprietor.
The value of the land so purchased, is undoubtedly enhanced, in consequence of its proximity to the place where the water power is and will be used; but the question, who shall have the profits of the water, must be totally immaterial to all who do not claim an interest in the same.
About the 16th of May following, after the undersigned had removed to Lockport, he purchased Scovill's interest in the lease, at fifteen hundred dollars, in behalf of himself, Charles E. Dudley, Benjamin Knower, and Thomas W. Olcott; and in June following, they acquired the interest of Hatch.
None of the Canal Commissioners have either directly or indirectly any interest in this lease.
After the undersigned and his associates bad thus possessed themselves of the lease, he went to the memorialist with a determination to make a compromise at almost any sacrifice, and in the full spirit of conciliation, opened a negociation; but soon found that the extravagant concessions he offered were not met by a corresponding spirit; they were taken as evidence of timidity on the part of the undersigned, and he discovered that nothing short of a total surrender would satisfy the memorialist. He then wrote him the following letter.
Lockport, 19th August, 1829. SIB—After my purchase at Lockport, I ascertained that a lease of one-half the surplus waters of the state, at Lockport, had been made to Junius H. Hatch, Esq. of New York, and the other half to one Kennedy, whose interest in the lease had been assigned to Doctor Scovill; that you owned the land over which the water must be brought, before it could be used by any body, and that there was no agreement between you and them. In this situation of things, I saw that there would be no safety in erecting hydraulic works until the water rights could be in some way settled, so as to give safe titles. I waited several months, and in the mean time urged Doctor Scovill and Mr. Hatch to make such arrangement that this privilege, so highly useful in this county, could be placed in a situation to be rendered valuable to the village.
Finding no prospect of the matter being adjusted, at great expense, (in company with Charles E. Dudley, Benjamin Knower, and Thomas W. Olcott,) I purchased in the rights to the surplus water, not doubting, that, as it was so obviously for the interest of all concerned, and the village generally, some equitable arrangement might be made, which would furnish you with as much as you needed to carry all your machinery, and at the same time give us the right to carry the residue across your land for the benefit of the whole village. I very much regret that we have hitherto been unable to make any arrangement on the subject, or even to arrive at a prospect of one.
I feel willing to let you have much more of the water than I think in fair equitable dealing I ought to do, to avoid the disagreeable collisions which must follow its remaining in an unsettled state. I therefore propose to you distinctly, that if you will guarantee and secure to us the privilege of inaking and maintaining a ditch, and keeping it in repair through your lands along the ravine, (where the land is good for nothing else,) we will give you five thousand dollars; or else enough of the water from the upper ditch, when so much is obtained, to carry four run of stones, the present size used in your mill, which you can use three times on twenty and sixteen foot wheels, and which will be sufficient to turn all your machinery.
This water shall be carried directly to your mill, at our expense. It must be understood, however, that we have the right to erect a waste gate below your machinery if we choose. Should this
position be unsatisfactory, I will agree on behalf of myself and associates, to allow you from the upper ditch enough to carry four run of stones; and then, after we have carried by enough for four, you take enough for four more, (if so much should run,) you securing us to keep up a ditch across your land, and the right to carry the residue of the water, (if any,) in it, and of erecting a waste-weir or gate. Should this be unsatisfactory, we will give to you, and the other owners of land, one half of all the water aforesaid, and pay the rent ourselves, if you will maintain a ditch which will bring the other half on to our lands below, and secure its continuance. Should neither of these propositions meet your views, I shall despair of making any arrangement with you, and shall be reduced to the necessity of either suffering you to continue the exercise and enjoyment of all the water for which we are paying rent to the state, and for which we have paid heavy sums to lessees, or of applying to the Canal Commissioners to turn the water the other way, and leave your mill dry, and your land useless for any and every purpose. I have offered you much more liberal terms, than in my opinion justice would require. It is done to avoid the disagreeable necessity of other expedients; but should you refuse, we shall afterwards feel under no obligations to repeat them, or offer any thing more than a fair equivalent for the use of the land for a ditch.
In our opinion, the offer we make you is much more than a fair equivalent for what we ask in return. But we are induced to offer it at this time, because a settlement of the titles to water privileges is so immensely important to the growth of the village, and consequent settlement of the country around.
And we feel a great anxiety, (much as we believe we are sacrifcing,) that you should accede to some one of our propositions. If, however, they are agreed to, we expect it will be done immediately; for it is much against our interest in the property below, and of the whole village, that things should be longer in suspense.
I am, sir, very respectfully,
To this communication the undersigned received the following