A study of the foregoing tabulation will show the great benefits of stream regulation in connection with the development of power.

Public Health, Safety, and Welfare

The increase of power is by no means the only benefit which will flow from stream regulation. The construction of reservoirs will impound spring flood waters which so frequently result in great injury to public and private property along our inland streams. The Sacandaga reservoir will remove at least three (3) feet from the crest of the floods at Troy, Albany, and elsewhere along the Hudson. The Portage reservoir on the Genesee will prevent the overflow of thousands of acres of valuable land in the Genesee valley and also eliminate injury to other public and private property along the stream which in the past has so often been endangered or destroyed. This menace to property is present every recurring season. No figures are available to estimate the enormous loss of property injured or destroyed by Spring freshets in this State. By proper stream regulation this destruction and waste would be greatly minimized if not wholly prevented. Like safety to property will result on the other inland rivers if properly regulated. Moreover, stream regulation will produce a more steady and continuous run of water. It will increase the flow during the dry season of the year, and convert many stagnant pools into streams of living, flowing water. Public health, safety and welfare will be greatly benefited and improved thereby.

In determining a policy for the State to adopt with respect to stream regulation, consideration should be given to the relative importance of these advantages to the beneficiaries thereof. It may be difficult, if not impossible, to estimate the full value of the benefits to the health, safety and welfare of the public. Yet in formulating an equitable plan for stream regulation all benefits accruing therefrom should be considered: first, to the mill owner from increased power; second, to the citizenry generally from the improvement to public health, the advancement of public welfare, and the safety to public and private property.

Benefit to Mill Owner from Increase of Power

It is generally conceded that the benefit to the mill owner de rived from the increase of power is by far the more important. In order to secure proper regulation reservoirs must be constructed, maintained and operated. How shall these be constructed, and the cost thereof be paid? Shall the State as a whole contribute toward the expense of construction, maintenance and operation, on account of these benefits to public health, safety and welfare?

If the policy of stream regulation were made general throughout the State the benefits derived therefrom would directly or indirectly reach our entire population; and there seems, therefore, no just or equitable reason why the State as a whole should not contribute toward the cost of such development.

With regard to these questions we find that the Constitution provides that

"The Legislature may by general laws provide for the use of not exceeding three percentum of such lands for the construction and maintenance of reservoirs for municipal water supply, for the canals of the State and to regulate the flow of streams. Such reservoirs shall be constructed, owned and controlled by the State, but such work shall not be undertaken until after the boundaries and high flow lines thereof shall have been accurately surveyed and fixed, and after public notice, hearing and determination that such lands are required for such public use. The expense of any such improvements shall be apportioned on the public and private property and municipalities benefited to the extent of the benefits received. Any such reservoir shall always be operated by the State and the Legislature shall provide for a charge upon the property and municipalities benefited for a reasonable return to the State upon the value of the rights and property of the State used and the services of the State rendered, which shall be fixed for terms of not exceeding ten years and be readjustable at the end of any term."

This provision of the Constitution is applicable to a very large proportion of our inland streams, which have their source in the Forest Preserve counties; and the fair inference is that the people

of the State favor the construction, control, maintenance and operation of such reservoirs through the agency of the State itself.

Cost to Be Borne by the State and by the Owner

We feel, therefore, that the proper policy to adopt is for the State to construct, control, maintain and operate reservoirs intended for stream regulation, and that the cost thereof be borne in part by the State and its municipalities benefited thereby, and in part by the owners of water power sites upon some basis of a just and equitable division thereof.

With regard to the payment to be made by the mill owners, serious and difficult questions arise. How shall such payment be made and provided for? Many divergent views are entertained with respect to these questions. All practically agree that the beneficiaries should be required to pay therefor. Some maintain that the real beneficiaries are the owners of power sites already developed. This view is predicated upon the proposition that undeveloped sites have no use for an increase of power which will result from stream regulation. It is also claimed, in some cases, that the owners of developed sites should not be required to contribute toward the cost of the construction, maintenance or operation of such reservoirs, for the reason that some power owners have no need for additional or increased power. These views are, of course, erroneous, for the reason that any increase in the capacity of a water power site, whether developed or undeveloped, enhances its potential value. Moreover, while the assessment of cost upon developed powers alone might possibly answer the needs and be practical for a river like the Black, where more than 85 per cent. of its available power is developed, it would utterly and absolutely fail to secure any regulation on rivers like the Raquette, where less than 25 per cent. of the available power is developed.

A glance at the foregoing table shows that the regulation of the Raquette could not and would not be made if the developed sites alone were required to pay the cost for the evident reason that the owners of such sites could not afford to bear the burden. For example, if the reservoir at the Oxbow on the Raquette river were

built at the estimated cost of two millions of dollars ($2,000,000), the construction cost would be at the rate of twenty-five dollars and ninety-seven cents ($25.97) per h. p., based upon an increase of 77,077 h. p. in the low-water power of the stream. If this cost were apportioned between the developed and undeveloped sites, then four hundred sixty thousand dollars ($460,000) would be due from the owners of developed sites and one million five hundred and forty dollars ($1,540,000) from the owners of undeveloped sites. If the entire two million dollars ($2,000,000) were assessed against the developed sites alone the charge would be at the rate of one hundred and twelve dollars ($112) per horse power. Such charge, with the cost of maintenance and operation, would be prohibitive and manifestly unfair, for the reason that the value of the undeveloped water powers would be increased by such regulation. It is apparent, therefore, that if the State aims to formulate a workable policy which will result in the general regulation of all our inland streams, some plan must be devised whereby the owners of undeveloped as well as developed powers will be compelled to bear their just and equitable share of the cost of such improvement. Inasmuch as the owners of unused and unsalable power sites would rarely if ever agree voluntarily to share the cost of such a project, it follows that a workable policy must involve compulsory payment. No provision for voluntary payment will suffice.

Power of Eminent Domain Involved

To achieve this result by legislation a valid power of taxation must be invoked, and legislation must likewise carry with it the power of eminent domain, for the reason that every project for the construction of reservoirs involves the acquisition of private property, and in some cases public property as well. No practical plan has yet been suggested which does not involve the exercise of these two sovereign powers.

For the regulation of streams, reservoirs must be constructed and private lands must be acquired as above stated. The cost of construction, maintenance and operation must be paid. Neither public nor private property can be appropriated; nor can the power of taxation be considered in this State except for a public

purpose. Neither the right of eminent domain, nor the power of taxation has been given to mill owners in this State to acquire private property for milling purposes. Nor has the enforcement of assessments for benefits derived been permitted for the development and improvement of water powers exclusive of other purposes of a public nature. These projects have always been considered private enterprises, and therefore the power of eminent domain and taxation has been denied. We believe that it will be generally conceded that this view is correct, and therefore any legislative plan designed to achieve practical results must embrace the valid power of eminent domain and taxation as well. To accomplish this the primary purpose of the statute must be public, not private.

The development of water powers and the improvement thereof by stream regulation for the production of energy for lighting public buildings, streets and highways, and for power for State, municipal and public service uses, and incidentally for industrial enterprises, would, we think, be construed to be a sufficient public purpose to validate the exercise of the necessary powers of eminent domain and taxation.

To accomplish the purposes named provision for the transmission of energy produced is essential; and moreover, this would furnish a market for power available from sites now undeveloped and the development thereof would be made practical and feasible for the reason that the same could then be used for commercial and industrial purposes, where at present no market exists. Unless some such plan is adopted to furnish a market for the power available from undeveloped sites the burden of taxation for stream regulation imposed upon unused powers would be unjust to the owners and tend to confiscation of their property.

Undeveloped Powers, Owned and Controlled by the State Thus far we have considered stream regulation on rivers where water powers are privately owned. We will now consider the proper policy to be adopted with respect to undeveloped water powers owned and controlled by the State itself.

More than three-fourths of the undeveloped water power within the borders of the State of New York is owned and controlled