No. 46.

IN SENATE, MARCH 3, 1851.

REPORT

Of the committee on grievances to which was referred the petition of Thomas Countryman.

Mr. Curtis, from the committee on grievances to which was referred the petition of Thomas Countryman, asking an appraisement of damages sustained by him in consequence of breaks in the Minden dam, across the Mohawk river,

REPORTS:

That the committee have had the petition, and the papers accompanying the same under consideration. The petitioner states that he was the owner of an island in the Mohawk river, in the town of Minden, county of Montgomery containing about six acres of valuable land; that in the construction of the eastern section of the Erie canal, a dam was built across the Mohawk river, at St. Johnsville, for the purpose of supplying the canal with water, from the said Mohawk river. The petitioner further states that in the years 1844, 1846 and 1847, the dam gave way several times in consequence of high freshets in the river, in such manner as to turn the current against his island, which was situated about three rods below, in such manner as to nearly destroy it, not leaving more than about half an acre; from the affidavit of the petitioner, and other evidence produced before the committee, they are fully satisfied that the allegations as set forth in the petition are true. This being one of the class of cases not provided for by law, and a majority of the committee being [Senate, No. 46.] (u. n.)

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of the opinion that the petitioner has made out a fair case for relief not only on the ground of equity and good faith, but in a precedent by law; as they find in the Session Laws of 1847, page 488, that a bill was passed for the appraisement and payment of damages to Horatio Averill, Lewis Averill and Joseph Bander, whose lands were near to and adjoining the petitioners, and were injured at the same time, and by the breaks in the same Minden dam, have come to a conclusion favorable to the prayer of the said petitioner and report a bill for his relief.

No. 47.

IN SENATE, MARCH 10, 1851.

REPORT

Of the committee on canals on the petition of James Brady and Patrick Fitzsimmons.

Mr. Robinson, from the committee on canals to which was referred the petitions of James Brady and Patrick Fitzsimmons, praying for an allowance for extra labor and expense in constructing section No. 6 of the Erie canal enlargement,

REPORTS:

That it appears that the petitioners in 1838 entered into a contract with the Canal Commissioners for the construction of sec. No. 6 of the Erie canal enlargement through the village of West Troy. Under the contract it was stipulated that the water should be drawn off from the canal immediately on the close of navigation, and notice was given to them that they would be required to commence the excavation in the bottom of the canal as soon as the navigation closed. That the navigation closed in that year on the 25 November. The Canal Commissioners instead of fulfilling their contract retained the water on this section of the canal in order to accommodate certain persons interested in hydraulic privileges and to enable them to grind up large quantities of wheat until the 27th day of January 1839. The petitioners by this act of the Commissioners were put to a great amount of extra expense in removing the ice out of the canal. The ice at the close of navigation was about two inches thick. But when the petitioners

[u. n.]

were allowed to go to work after the water was drawn off, the ice was on an average 20 inches thick. This ice had to be broken up and removed by the petitioners much of it to a great distance before they could commence this work, all of which was occasioned by the breach of the contract on the part of the Canal Commissioners and by which the petitioners were put to a large amount of additional labor and expense.

These contractors were stopped in their work on this section by the stop law of 1842, but they have never made any claim for prospective profits under the law of 1813, and they expressly waive all claims that they might have for damages under that law, and merely ask for a just compensation for what they have been compelled to do in consequence of a breach of the contract by the Canal Commisgioners.

The committee are clearly of opinion that the evidence in this case demonstrates the fact that the petitioners were subjected to much labor and expense by the breach of contract as alleged, and that they have not been paid any compensation for removing the great body of ice caused by the Canal Commissioners' breach of their contract. It is also a subject of little doubt that in consequence of the retention of the water in the canal contrary to the stipulations of their contract they were compelled to dig a ditch about a quarter of a mile through frozen ground that might have been dug when the ground was not frozen if the Canal Commissioners had fulfilled their contract.

The making of the contract, the breach of it by the Canal Commissioners and the loss and damage occasioned by that breach, and that the petitioners have not been paid or settled with for the same, being thus established, the only objection to passing a bill to allow a fair hearing of this claim arises from the delay in making the claim.

Your committee do not believe it to be the practice nor would it comport with the dignity or honor of the State of New-York to plead the statute of limitations against the just claims of any of her citizens If it was ever permitted in any case, in this it would, in the judgment of your committee, be unjust and illiberal to do so.

The contract was made in 1838; the breach was made the same year before the contractors began their work. The extra expense

and labor was caused during the winter of 1838 and 9. The work was but begun. The contractors continued their work until they were stopped in the spring of 1812, and the section is yet unfinished and it has been objected to them that they ought to have applied to the Canal Board for their compensation within one year after their damages were sustained and that the Canal Board, under sections 107, 108, 1 R. S. 3 ed. page 261, had ample power to grant them proper relief.

In reply to this the petitioners allege that they did not deem it necessary or advisable to leave their work with which they were progressing in order to present a claim for a known and fully admitted violation by the State of a contract made with them. But they supposed and had a right to believe that the State would not under any circumstances refuse to pay a claim so just in itself. They supposed that the claim could be heard at any time by the Canal Board, and were not aware of any limitation to one year if any such existed at that time.

The petitioners testify that they did apply to the Canal Board in 1842 for compensation in this case but that said Board decided that the Board could not make the allowance without a special act of the Legislature, because the year had expired. That the petitioners immediately presented their petition to the Senate for relief and a bill therefor was introduced and ordered to a third reading by a unanimous vote, but was suffered to die upon the files of the Senate. That James Brady one of the petitioners was then appointed one of the superintendents of the canals and held that office at West Troy for six years, for which reason he suffered this claim to sleep.

Your committee do not understand the limitation of "one year" within which the claim of a contractor is to be presented to the Canal Board as intending to cut off the just claim of a citizen for services rendered or for damages sustained, but merely as compelling the claimant to go to the Legislature to get a special law for a hearing of It was intended, we think, as a salutary check against fictitious claims being presented and passed by a single board whose members were so frequently changed. When the year had elapsed, it was a wise precaution to subject claims to the ordeal of both the Legislature and the Canal Board.

his case.