conceived therefore, that whether the commissioners accepted the offer of Comstock or not, he would be perfectly safe in erecting a mill on his own land at the spot where the water must pass after it was discharged from the locks, and in doing so he could not perceive how he could injure any benefit which Kennedy or any other person could acquire by purchasing the use of the water. For if they could not use the water, without having land on which to apply it, they could not be injured by your memorialist using it, so long as it was useless to them.

With these views and under these impressions, your memorialist in October, 1825, and more than two months before any lease was given by the commissioners, commenced preparations for erecting a flouring mill and a saw mill. He brought materials to the spot, engaged his workmen, set them to getting out the necessary timber, and dug for the foundation of his mill. He also dug a raceway in continuation of that which the commissioners had constructed, and extended it about 200 feet along the brow of the hill. He made a floom which was framed and planked along the whole distance of the race which he dug, and inserted it about 20 feet into the race dug by the commissioners. The bottom of the race constructed by them, had been washed out for a considerable distance, your memorialist filled it upon a level with that which he had dug. All these operations were carried on under the immediate observation of Wm. C. Bouck, the canal commissioner assigned to that portion of the canal, and of Alfred Barrett the engineer, who had charge of it at the time. Not a syllable of disapprobation was expressed by William C. Bouck, not a lisp escaped him to your memorialist, even of caution against a hazardous undertaking, but your memorialist had every reason to believe and did believe, and still most firmly believes, that Commissioner Bouck considered the subject in the same light which your memorialist did; that he had a full and perfect right to enjoy the fortuitous bounty of the water pa sing on his land, provided he did not impair its beneficial use by the state. The engineer directly and distinctly approved of the operations of your memorialist, and admitted that your memorialist had saved the state more than $200 by continuing the race as he had done, and thus preventing the wearing away of the bank in the vicinity of the locks, which had already occurred to a great extent, and which threatened if not checked to undermine the locks themselves. He also paid your memorialist for filling up the bottom of the race constructed by the state, which your memorialist presumes was duly charged in the accounts of the engi

neer and paid by the Commissioners. This is the transaction which the Commissioners in their report are pleased to denominate a "trespass." Your memorialist has been advised that if an individual had thus impliedly abandoned the appropriation of water which belonged to him, and had thus tacitly encouraged a heavy expenditure in order to use such water, he would never be permitted thereafter to controvert the right of so using it.

Your

Your memorialist is much surprised at the assertion contained in the report," that before any encroachments were made upon the public property by him, he was cautioned by Henry Seymour," one of the Commissioners, and told "that they would be obliged to turn the water from his mill, whenever required by the lessees." memorialist solemnly affirms that he never had any communication with Henry Seymour on the subject, until a year after the mill had been in full operation. And he is convinced that the Commissioners must be mistaken, at least as to the time of this supposed conversation, from the circumstance that the idea of turning the water from his mill, never was intimated in any of their proceedings, until October, 1829; and that to the contrary, the order made by them in February, 1829, a copy of which is hereunto annexed, shews that up to that time, they contemplated measures of a character entirely different. Nor can your memorialist possibly reconcile such an admonition, as is alleged to have been given, with the fact of the entire silence and implied approbation of William C. Bouck, the Commissioner who was specially charged with that portion of the canal, and the fact of the engineer's direct and unqualified approbation.

From the relation which has been given, it will be seen also, how unfounded is the charge contained in the report, that your memorialist “ diverted a part of the water from the channel, which had been constructed for it by the state." Instead of diverting, your memorialist continued the water by a race-way, beyond the point where it was causing great damage, and from which it threatened incalculable mischief.

After all these transactions, and in January, 1826, the Canal Commissioners decided in favor of the proposal made by Richard Kennedy. Junius H. Hatch, of New-York, who never owned, to the knowledge or belief of your memorialist, an inch of land in the county of Niagara, had purchased of Kennedy one half, or some other portion of his interest, and the Commissioners executed a lease to Kennedy and Hatch jointly. Situated as he was, it was im

possible for your memorialist to abandon the erection of his mills, for which he had made such extensive preparations. He could not believe that the lessces would be so inconsiderate as to pay any money on a contract so hopeless, but presumed that they calculated on coercing him to buy his peace, by giving them a bonus for their contract. Acting on the principles before stated, and which have been so entirely sanctioned by the Commissioners and Judge Marcy, he was disposed to treat the claims of these men, who had purchased water without any land on which to use it, as he would have treated the claim of an individual to the air which circulated in the atmosphere above him, as too preposterous for serious contest. And your memorialist was confirmed in this, by a conversation which he had with Commissioner Bouck, in the summer of 1826, in which he stated to your memorialist, that the water sold to the lessees, must be taken by them where it run, that the Commissioners did not feel themselves obligated to change the course of the water, or to enter into any controversy that might arise between the owners of the land and the purchasers of this water. Your memorialist feels the more confidence in the accuracy of his recollection of the substance of this conversation, from the circumsta ce, that in July, 1827, he communicated it in writing to the then Comptroller Marcy.

Your memorialist, therefore, contiuued the work he had begun, and finished his mill. He put it in operation, and provided for the farmers a mill, twenty-three miles nearer than any that had been erected, which could run constantly. The water that was discharged from the locks, flowed in irregular quantities, but generally there was more than was required for the purpose of his mill, he was willing that others should participate in the benefit, and therefore leased a piece of land on which to erect a building for a carding machine, and also a piece to erect a sash factory, with permission, so far as he could grant it, to take water when there was any, out of his race, but your memorialist never pretended to sell the right of using the water; and, on the contrary, the permission which he gave was distinctly declared to be subject to the right of the state, whatever it might be.

In 1827, your memorialist conveyed to Hathaway and Gooding, sufficient land on the brow of the hill before mentioned, to construct a race-way, in continuation of that made by your memorialist, and declared in the conveyance, that whatever use they should make of the water should be subject to the rights of the state; and the whole agreement was founded on the presumption, that the Canal Commis

sioners would allow water to flow over the waste-weir at the locks, gratuitously, in sufficient quantities for the use of your memorialist and them.

It was by these acts, that your memorialist has subjected himself to the charge contained in the report of the Commissioners, that he appropriated to himself land and water which had never belonged to him, the water having been brought from Lake Erie, and the land occupied by the race having been taken from Comstock, and appropriated by the laws of the state to the public use." This is the grave accusation upon which the Commissioners have arraigned your memorialist before your bar, and the bar of the people. With respect to the water, it is the opinion of the inhabitants of that region, who were well acquainted with the natural stream herein before mentioned, which flowed over the hill, that the quantity which it furnished was greater, a considerable portion of the year, than that which was discharged over the waste-weir at the locks, and applied to the mill of your memorialist. But, whether it was so or not, your memorialist has never been able to discover any principle of justice, modesty or equity, which should prevent his using water or any other element, which the bounty of Providence, or the generosity or convenience of man had cast upon his property, provided that in so doing he injured no others. That the public was not injured, and on the contrary, that it was benefitted by his operations, every one admits; and that the lessees were not, and could not be injured, has been already shewn by the circumstances before detailed, which demonstrate that they could make no use whatever of this water. Your memorialist not only owned the whole hill on the side where the water was discharged, but in order to secure and protect himself, he purchased also the opposite hill, for which he gave $3,000, so that there was not a foot of ground in any direction, upon which the lessees, or any one to whom they should sell, could erect any works to which the surplus waters could be applied. The appropriation by your memorialist, therefore, could not injure them.

With respect to the land which the Commissioners charge your memorialist with having appropriated, he enterains great doubts whether the ground over which the race-way was constructed by the Commissioners, ever became the property of the state. He much doubts whether the mere act of throwing water from the canal through a waste-weir, upon land which runs sixty, or six hundred feet, or any other distance, thereby constitutes the channel thus formed any part of the canal. And he questions much, whether

the canal appraisers would think it their duty to compensate the owner for the fee of the land thus occupied by such a channel.— From the first law authorising the taking of land for the use of the canal, down to the last act on the subject, there has been one uniform provision, that a description of the premises appropriated should be entered in a book or books and certified by the appraisers, and the title to any premises is not vested in the state until that provision is complied with. Your memorialist does not conceive such an entry to be a mere formal proceeding; but, in as much as no deed or other instrument is required to be executed, he considers it the only memorial of a proceeding substituted for the verdict of a jury according to the common law, and the only evidence of the title of the state, equally necessary for its interests, and to secure the rights of individuals whose property is taken against subsequent indefinite claims.

No appraisal or determination in respect to the ground occupied by the race-way before mentioned, has ever been made by any appraisers, and of course no such determination has ever been entered and certified by them.

Your memorialist, therefore, with great deference to the judg ment of the Canal Commissioners, but with great confidence, ventures upon the assertion, that the ground in question had not become a part of the public property. But if it had, he denies that he has in any manner appropriated it to the injury of the public; he has covered a part of it, and at the point where the water was discharged from it into the ravine below, he erected a mill, and continued the race about two hundred fect, for his own convenience, and the manifest advantage of the state. And this he did with the knowledge and acquiescence of the Canal Commissioner, whose peculiar duty it was to prevent any injury to the public works, and with the direct approbation of the engineer stationed at that point.

Your memorialist continued in the use and enjoyment of his mill, supplied as it was by water thrown away by the state from its wasteweir at the locks. The public works sustained no injury, the locks and the embankment around them were secured and preserved from the effects of this discharge of water from the race which had endangered them, the navigation of the canal was uninterupted, and your memorialist had begun to indulge the hope that the lessees had themselves abandoned all expectations of making use of the water they had purchased. He was confirmed in this hope, by having