in 1885, the adoption of section 7 of article VII of the Constitution in 1894, and the popular approval of the referendum for a $10,000,000 bond issue for land purchase in 1916.

But the State has yet no settled policy of water conservation which can be compared with its forest policy, although it has made encouraging progress in this direction during the past few years. The reason for this comparative backwardness is the very natural one that water conservation in the larger view was neither necessary, practicable nor commercially profitable until the past twenty or twenty-five years. In the olden days of fairly reliable stream-flow, mills were built where an advantageous fall of water could be secured, and the power utilized on the spot was sufficient for neighboring communities. As the forests began to disappear, the streams became unreliable as sources of power,torrents in the Spring-time and dry in summer. Such physical changes have been testified to by too many observers not to be believed. The records of the last Constitutional Convention contain the statements of members who have observed such changes in their own life-times. When streams became undependable for power, their loss for this purpose caused little alarm; because, progressively with the deterioration of the streams came the discovery of coal and the way to burn anthracite, and the building of canals and railroads opened the avenues by which supplies of this new source of power were brought cheaply to take the place of the water-wheel. The aggravating spring freshets do not appear to have been an adequate stimulus to river regulation. They were of little account in the rural districts, and the few cities affected by them bore them with patience. The growing cities of Albany and Troy on the Hudson and Rochester on the Genesee have probably been the greatest sufferers from spring floods; but I do not recall that any important legislation for water storage or river control has ever been enacted on the basis of these floods alone; but during the past fifteen years or so, when stream regulation for water-power has been desired, the spring-floods have served as a potent argument.

It is true, water storage in the State is not an altogether new subject, as the reports known as the McElroy report, submitted to the Senate February 15, 1867, and the Benedict report, authorized by chapter 399 of the laws of 1874, indicate; but those documents dealt with storage

reservoirs mainly as aids to the canal system, and the power features, though mentioned, were entirely incidental. So little was thought of the subject of water power by the public generally, that for a period of fifteen years prior to the Constitutional Convention of 1894, the Legislature chartered companies with enormous privileges to take the waters of the Niagara river without compensation and the State authorities made valuable grants of land under water to them for nominal consideration without attracting public notice. An occasional State dam was built in the Adirondacks, to supply Black River or other industries,— incidentally flooding large areas, like the Beaver River dam,-but nothing in the nature of a "policy" was developed.

It was not until the beginning of what may be called the hydroelectric era, about 25 years ago, that the situation became transformed. The possibility of generating electricity at a water-fall and transmitting it by wire for many miles for conversion into power, heat and light, enormously increased the value of water-power, and set people thinking along new lines. The Legislature and State commissions were besieged by applicants for special privileges; and then a whole range of new and interesting questions was opened up for discussion.

The State first officially took cognizance of the water power problem-according to the Ferris report of 1912-when it enacted chapter 599 of the laws of 1895, which provided for a survey of the upper Hudson valley with a view to determining what lakes and streams might be improved by water-storage and otherwise for canal, navigation and power purposes. In 1902 the Water Storage Commission was created (by chapter 406 of the laws of that year) and reported to the Legislature in 1903 recommending storage reservoirs for flood control. In 1904, the River Improvement Commission was created (chap. 734) and this was followed in 1905 by the Water Supply Commission (chap. 723). In 1906, the powers of the River Improvement Commission were included in those of the Water Supply Commission. In 1907 (chap. 569) the Legislature directed the State Water Supply Commission "to devise plans for the progressive development of the water powers of the State under State ownership, control and maintenance for the public use and benefit and for the increase of the public revenue." I shall revert to this significant language as marking an important stage in the

development of public opinion. In 1909, the laws relating to water supply and river improvement were consolidated in Article 2 to the State Boards and Commission Law, and in 1911, the Conservation Law (chap. 647) placed upon the new Conservation Commission the duties of the former State Water Supply Commission.

Up to this point,-sixteen years after the State first officially took up the water problem,—nothing concrete had been evolved, although there had been extensive discussions, hearings, reports, and surveys and much expenditure of money. There was discernible, however, a very encouraging tendency to recognize the necessity of State control in the public interest and the justice of the State's deriving a revenue from the use of waters which it owned or which it made more useful. This tendency was well brought out in the report presented to the Senate January 30, 1912, by the Joint Committee of the Legislature upon the conservation and utilization of water power, of which Hon. T. Harvey Ferris was chairman.

Meanwhile, a very important event in the history of the evolution of a State policy had occurred. In 1907, the same Legislature which directed the State Water Supply Commission to devise plans for "the progressive development of the water powers of the State under State ownership, control and maintenance for the public use and benefit and for the increase of the public revenue," inconsistently chartered the Long Sault Development Co., whose object was the development of water power of the Long Sault rapids of the St. Lawrence river between the shores of St. Lawrence county and the Province of Ontario. The applicants for the charter at first sought to get the free use of this water, belonging to the State, as the Niagara corporations had done, but the great advance in public sentiment since the Niagara charters were granted was reflected in Governor Hughes' refusal to sign the bill unless it made provision for adequate compensation to the State. The bill attracted a great deal of attention, as it was said to have been the first case in which the Legislature ever enacted a bill of that character containing a provision for increasing compensation to the State. As the St. Lawrence river is an international stream at this point, the bill contained a provision that the charter should not become effective until approved by Congress. Approval by Congress was delayed, fortunately, and it

was then discovered that the compensation which had been represented to the Governor as adequate was not in proportion to the enormous benefits conferred. The Legislature of 1913, therefore, repealed the

charter.

I think we can infer from the foregoing that the State of New York has established one fundamental principle of a "policy" of water conservation, and that it is a great step forward. This principle of compensation to the State appears to be applicable very properly to four classes of power: (1) That derived from international boundary streams from which there can be no diversion without the consent of the State, and title to one-half of the bed of which vests in the State; (2) that derived from surplus canal waters; (3) that which may be developed at power sites within the Forest Preserve on State land; and (4) that which may be added to existing private power developments by waters conserved by the State.

But this is only one step. The important questions as to who shall develop the undeveloped water powers in the State, how they shall be developed, just what form of administrative machinery shall be created, and the manifold details of assessing the benefits, are largely unsettled, although progressing, as I am encouraged to believe, toward clarification.

The situation is somewhat complicated by the various kinds of riparian ownerships in this State. As I have pointed out on another occasion, titles along the Hudson and Mohawk rivers, titles along the Niagara and St. Lawrence rivers, and titles along other streams rest on somewhat different legal principles.

The courts have held that because the grants along the Hudson and Mohawk rivers were made originally by the Dutch, the civil law applies thereto and that title to the bed of the stream is vested in the State. As a matter of fact, however,, the State, during the past hundred years, has granted to adjacent land owners the bed of these rivers at practically all the available power sites, so that so far as present legal problems are concerned, these rivers differ little from the other inland streams of the State.

Along the Niagara and St. Lawrence rivers a condition analogous in nature but not in comparative extent exists. The courts assume that

by the Revolution, title to the bed to mid-stream became the absolute property of the State. At Niagara Falls, however, the State has made extensive grants of water power to private corporations, so that at that point along the international boundary, the question of private ownership must also be met. Elsewhere along the Niagara and St. Lawrence the situation is simpler owing to the undisputed title of the State.

The authority of the State to grant away irrevocably the people's right to use water power on boatable streams has been questioned, and in view of the opinion of the Supreme Court of the United States in the Chandler-Dunbar* case that contention cannot be ignored. But for the purposes of this discussion we assume that the irrevocable grant by the State of water power and sites to private parties without adequate compensation is final and irrevocable.

With respect to the other streams of the State, the common law of private ownership to the middle of the stream applies.

We thus find the water power resources of the State, actual and potential, in two kinds of ownership-State and private.

With respect to the former, it would be highly desirable for the State, as a second principle of water conservation, to forbid by Constitutional amendment, any further alienation of State waters. The Legislature is forbidden by the Constitution to sell the State's canals and its forests. Its water powers are of equal value; and in view of the acuteness of this question it is not a little remarkable that the subject of water conservation attracted so little intelligent interest in the Constitutional Convention of 1915 and that no amendment was recommended to the people with a view to prohibiting the alienation of Stateowned waters.

It seems desirable also to lay a third foundation-stone for a State .policy by putting into the Constitution a declaration that the development of a water-power is a "public use" for which the State may condemn private property. Probably nobody will question the State's right to develop State-owned water power; but if the State is to undertake the development of water-powers other than those which it owns, it must

* U. S. against Chandler-Dunbar Co., 229. U. S. Supreme Court Reports, page 53. See particularly pages 68-69.