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TITLE 9. $ 74. Whenever the canal board shall have received from the ca

nal commissioners, the plan of any extraordinary repairs or improvements on the canals, and an estimate of the expense thereof, if such estimate shall not exceed the sum of thirty thousand dollars, they may direct such repairs or improvements to be made ; but if the estimated expense shall exceed that sum, they shall report the plan and

estimate, together with their opinion thereon, to the legislature. Surplus wa $ 75. Whenever in the opinion of the board, any water may be

spared from any state canal, or works connected therewith, without injury to the navigation or safety of such canal, and the persons entitled to the first privilege of taking such water, shall not avail themselves thereof, or there shall be no persons so entitled, the board may order a sale of such surplus water, for a term of years, in their discre

tion, to the person who shall bid the highest annual rent therefor. 18 Extra allow. S 76. The canal board may make such an extra allowance as they

may judge reasonable, to any contractor, for work performed, or to be performed on the canal, and direct the same to be paid by the canal

commissioners, or by the commissioners of the canal fund. 19 In what ca- $77. Such extra allowance shall not be made for, or include,

losses resulting to the contractor from the unfavorable terms of his contract, but shall be confined to an indemnity for extra expenses and labor, in constructing the work contracted for, occasioned either by new directions given by a canal commissioner, engineer, or superintendent of repairs, after the making of the contract, or where, in consequence of the work proving to be of a different character or description than it was contemplated to be by the commissioners, or engineer, at the time of the making of the contract. 19

S 78. Every contractor claiming an extra allowance, shall present Proceedings.

a petition, in writing, to the canal board, stating the facts on which his claim is founded, and the sum demanded as an indemnity, and shall support his petition by such proof as the board shall require; and every such petition, with the proof in support thereof, and the order of the board thereon, shall be preserved and filed in the office of the comptroller.


Of Water Privileges, and the Sale of Surplus Waters.
Sec. 79. Commissioners to agree with owners of hydraulic privileges for surplus waters.
80. When surplus waters are created by constructing dams, &c. persons owning works

contiguous thereto, may use such waters, upon complying with certain condi

81. Value of such waters to be estimated by appraisers.
82. If such owners refuse to comply with conditions, not to have use of waters.
83. Commissioners may resume use of waters when necessary.

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ART. 5.

Sec. 84. Owner of works, not to be affected until his damages are paid.

85. Owners of hydraulic works, in certain cases entitled to 'surplus waters.
86. Owners of land over which surplus water flows, and adjoining dams, entitled to

surplus water.
87. Value how ascertained; value of former use of water how ascertained, and when to

be paid.
89. How right of such owners to surplus water may be waived or forfeited.
89. Qualifications of preceding sections; not compulsory to close race-ways or gates:

sale of surplus waters not to be made, when no right will be conferred.
90. Manner and terms of sale, of surplus waters.
91. Canal board to revoke former leases, where no right to use surplus waters has been

conveyed. 92. Where there is a partial resumption of waters, purchaser entitled to what is not re

93. Where stone walls to be made, and the manner of erecting.
94. Waste-gates, sluice, slide, &c. when and where to be erected.
95. Penalty for injuring or lowering stone walls.
96 Persons owning water privileges on the canals, to discharge the waters as commis-

sioners shall direct.
97. Commissioners, or party grieved, may bring writ of error upon decision of supreme

court, in relation to water privileges.
98. Duty of clerk of supreme court, upon being served with writ of error.

S 79. Whenever it shall become necessary to secure to any state Agreements canal, an additional supply of water, the canal commissioners may respecting. agree with the proprietors of hydraulic privileges, affected by their proceedings, relative to the use of the water privileges to be created, and of the surplus water, in such manner as they shall deem most beneficial to the state 20

$ 80. Whenever the canal commissioners shall construct a dam Who entitled across any river or creek, to raise a head of water for the use of a cases, and canal, by means whereof, any works adjacent to such river or creek," in which water power is employed, before such time legally used, may be benefitted without prejudice to the canal, the owner of such works, for their benefit, shall be entitled to the use of the surplus water, upon his complying with the following conditions :

1. He shall construct, under the direction of the canal commissioners, a good and substantial race-way and gate in such dam, to draw off as much of the surplus water as his works may require.

2. He shall give such security to the people of this state, as the canal commissioners shall deem sufficient, to keep such gate and raceway in complete repair, so as to prevent any waste of water.

3. He shall, within ninety days after such race-way and gate shall be completed, apply to the canal appraisers, and request them to ascertain the benefits accruing to him, from the use of such dam, or other erection.

4. Within ninety days after such benefits shall have been so ascertained, he shall pay the sum at which they shall be estimated, into the treasury.20

$ 81. It shall be the duty of the canal appraisers, when so requir- Appraira). ed, to make a fair estimate of the benefits so accruing to such owner,

(20) Laws of 1823, p. 269, § 2; Ib. p. 132, $1 and 2.


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the use of water.

TITLE 9. and to make a return thereof, without delay, to the treasurer of the w state.21 Duty of own- $ 82. If the conditions, as above specified, shall not be fulfilled by

such owner, it shall be the duty of the acting canal commissioner, to close any race-way or gate such owner may have constructed; nor shall the owner again open the same, or any other in the same dam,

unless upon the performance of the conditions so imposed. 21 When to be $83. The canal commissioners may resume the privileges so

granted, whenever, in their judgment, the surplus water, or a portion thereof, shall become necessary for the use of the canal ; but whenever such privileges shall be so resumed, the sum paid into the treasury

therefor, shall be refunded. 21 Construction S 84. Nothing in this Article contained, shall be construed to de

prive the owner of hydraulic privileges, of any rights possessed by him, prior to any grant from the state under this Article, unless his

damages from the loss of such rights, shall be duly assessed and paid. 28 Preference in $ 85. In all cases where water or mill privileges, before legally

used, have been or shall be injured by reason of the diversion of the water to the use of either of the canals, the persons so injured shall be entitled to the first privilege of taking water for the use of their works, on the terms and conditions above specified, from any work constructed for the purpose of such diversion, or from the canal itself benefitted thereby, when there is a surplus of water, and with the consent of the canal commissioners, 21

$ 86. Whenever the canal board shall order a sale of surplus wafirst, to sur ters, pursuant to the provisions of the seventy-fifth section of this Ti

tle, to the use of which no person shall be first entitled as the owner of works before such time legally used, according to the preceding eightieth section, the owners of the land upon which such surplus waters shall flow, and the owner of land adjoining any dam erected by the canal commissioners, by which surplus water shall be created, shall be entitled to the first privilege of taking such waters, subject to the provisions of this Article so far as the same may be applicable ; and the canal commissioners shall have the same powers in relation to all such surplus waters, as are herein given in respect to surplus water

by which hydraulic privileges are benefitted. 22 Value how $ 87. Whenever the owner of any land over which surplus water

shall flow, or the owner of land adjoining any dam by which surplus water shall be created, entitled according to the last section, to the use of such water, shall apply for a lease of the same, the canal commissioners shall direct the canal appraisers to estimate the value of

Other persons entitled

plus waters.


(21) Laws of 1823, p. 269, 82 ; Ib. p. 132, § 1. (22) Act of April 21, 1828, p. 426, chapter 317.

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the use of such water; and the said appraisers shall include in such ART. 5. estimate, the value of any use of such water, which such owner may have had previous to obtaining a lease therefor; and within ninety mer use of days after such appraisal shall have been made, and notice thereof ter." given to such owner, he shall pay the amount of the value of such previous use, into the treasury.23

$ 88. If any owner of land over which such surplus water shall How right flow, or if any owner of land adjoining any dam by which surplus wa- forfeited." ter shall be created, shall omit for three months after being notified by the acting canal commissioner to that effect, to apply for a lease of such water, or shall neglect to comply with any of the provisions of this Article, the canal board shall order a sale of such surplus water.23

S 89. But in cases, where in the opinion of the acting canal com- Qualificamissioner, it would be inexpedient to close any race-way or gate, it ceding secshall not be compulsory on him to do so; and where, in the opinion of race-ways. the canal board, a lease of surplus waters, will not confer on the les. As to sale or see, any right or authority to use the same without the consent of the ter. owner of the land over which such surplus water shall flow, they shall not authorise the letting of the same, without evidence, that the consent of such owner has been given to such use. 23

S 90. Whenever a sale of surplus water shall have been directed Proce by the canal board, the acting canal commissioner within whose line on sale of such water shall fall, shall proceed to sell and convey such surplus water in the manner following:

1. Each privilege of using such water shall be sold separately, at public auction, to the person bidding the highest annual rent therefor.

2. The place of sale shall be in the vicinity of the place where the water may be most conveniently used.

3. A notice, stating the time and place of the sale, and describing the waters to be sold, shall be published twice in each week, for six weeks in succession, immediately preceding the sale, in the state paper, and once in each week for the same time, in each of the newspapers printed in the county where the water is to be sold.

4. A lease for such a term of years as shall have been directed by the canal board, shall be executed by the commissioners, in the name of the people of this state, to the purchaser, and in such conveyance, the rent bid by such purchaser, shall be reserved.

5. The conveyance shall contain a covenant, that the rent therein reserved, shall be paid annually to the commissioners of the canal fund, and a condition, that if such rent shall remain unpaid for one year after it shall become due, the grant or lease shall become for- , feited to the state.

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TITLE 9. 6. The conveyance shall also contain a reservation of the right,

wholly to resume the water so conveyed, and the privileges thereby granted, and to control and limit the use of such water and privileges, whenever, in the opinion of the canal board, or of the legislature, the necessary supply of water for the use of any state canal, or the safety of such canal, or works connected therewith, shall render such resumption, control or limitation necessary; and a provision that where such resumption is made, or control or limitation imposed, no compensation or damages shall be allowed for any improvements or erections made in consequence of such grant or lease.

7. The conveyance shall contain a further reservation of the right of the state, without making any compensation to the purchaser, wholly to abandon or destroy the work, by the construction of which, such surplus waters shall have been created, whenever in the opinion of the canal commissioners, the occupation and use of such work, shall cease to be advantageous to the state.

8. A duplicate of such conveyance, under the hand and seal of the purchaser, shall be executed and delivered by him to the acting canal commissioner, who shall, without delay, procure the same to be recorded in the clerk's office of the county, in which the water sold shall be situated, and shall transmit it, when recorded, to the commissioners of the canal fund.

9. All the expenses attending the execution of the conveyances,

and the recording thereof, shall be paid by the purchaser.24 Canal board $91. When the canal board shall be satisfied that any lease of yoke former surplus waters granted by the canal commissioners, or either of them,

before the twenty-first day of April, one thousand eight hundred and twenty-eight, is invalid, or conveys no right to use such waters, and may expose the state to claims for remuneration, they may revoke and annul such lease, and may direct the re-payment to such lessee, of any monies received on such lease, with interest from the time of such payment; which shall be paid accordingly, on the warrant of the comptroller, from the canal fund.25

S 92. Where there shall be a partial resumption only of the waters so sold, the purchaser shall be entitled to the use of the remaining water privileges for the residue of his term, on the payment of such reduced rent as shall be fixed by the canal board; but if he shall refuse to accept thereof at the rent so reduced, the privileges so remaining, shall be again sold by the canal commissioners, under the direction of the canal board.

$ 93. At every place, where waters are to be taken from any state canal, or work connected therewith, for hydraulic purposes, except at

(24) Laws of 1825, p. 399, $3 ; 1826, p. 363, § 31. (25) Act of April 21, 1828, p. 426 ebapter 317.

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Walls to de erected.

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