He further says: "In Kingman v. Sparrow (12 Barb., 201), it is announced as the judgment of the General Term in the Eighth district-in whose jurisdiction the locus in quo is situated that the common law rule, as applied to grants bounding premises on rivers, has no application to lands bounded on the Niagara river, on the grounds that it is both a navigable and boundary stream. This decision stands unreversed, and has not, so far as we have seen, in any adjudicated case, been subjected to hostile criticism." The commissioner further says, at page 187: "A river, navigable in its general character, does not change its legal characteristics in that respect, by a disturbance which, at a given point, breaks the continuity of the actual navigation. And we are, therefore, obliged to apply to the Niagara river at the falls, the same principles which govern navigable streams; and to hold that the owners of Goat Island, and the other islands, do not carry their title to the middle of the stream, nor even to the middle of the American portion of the stream, but only to the boundary of the islands; that the bed of the river surrounding those islands belongs to the State, as do the waters that flow over them; and that whatever rights, short of prescriptive rights, may be claimed by the island proprietors in the use of the waters running past their premises, they are subject and subordinate to the rights of the State, as owner of the bed of the river, and may be lawfully terminated whenever the State may choose to resume its sovereignty, as it may at any time without cost or liability to such proprietors for any damage to them. (People v. Tibbets, 19 N. Y, 523, 528.) In addition to this, it is not to be forgotten that nothwithstanding this impediment in the actual navigability of the river, the frontier character of the stream is not affected by it nor the principles applicable to such a stream." An appeal was taken to the General Term of the Fifth Department from the decision of the commissioners, and from the order of the Special Term confirming their report. The opinion of the General Term is found in 16 Abb. N. C., 395. Mr. Justice Bradley, who wrote the opinion of the court, says, referring to the Niagara river: "Because it is navigable in fact and constitutes the natural boundary line between this and another country, is the reason why the proprietary right from its margin to such boundary line is in the State, and that the riparian owners have taken by the grant referred to only to the water's edge of the stream, and that the fact that at the particu lar place in question the river is not navigable by reason of the

interruption produced by the falls, does not qualify or distinguish it as a public river in its general character." The General Term affirmed the appraisal report and the order of confirmation. An appeal was taken to the Court of Appeals, but that court dismissed the appeal on the ground of want of jurisdiction.

From the principle derived from the above decisions, your committee concludes that the State of New York is the owner of the land under the water of Niagara river from high water mark to the center of the stream, except such portions as may from time to time have been conveyed to riparian owners, and is also the owner of the water flowing over the land on the American side of the boundary line.

Your committee believes that an amendment to the Constitution is needed to prevent further grants. The course which different Legislatures have pursued within the past eight years is giving away extremely valuable franchises without exacting compensation for the State, which they represented is sufficient reason for taking from their hands the power to do anything further in the same direction.

The question as to what shall be done with these corporations which have already received their charters, is one of difficulty, for the reason that they do not stand on the same legal plane and within the same class. Two of them have expended large sums of money and are operating their respective plants, and the amount of water which they can take will not do appreciable injury to the falls. The others, which have not yet accomplished any large amount of work, may, being unlimited in the amount of water which they can draw from the river, do irreparable damage to the property of the State.

After due consideration, your committee believes that the easiest course would be to place the companies already incorporated under the control of the Commissioners of the State Reservation at Niagara. This body is charged with the duty of protecting, preserving and caring for the property of the State at the falls. It is this property which the operations of these companies are likely to injure. The commissioners could allow water to be taken from the river in such quantities and in such manner, and for such compensation as their judgment might dictate to be for the best interests of the State, and at the same time preserve, so far as possible, the manufacturing interests which may inure to the benefit of the western counties.

section

Your sub-committee would, therefore, recommend to the committee, and through it to the Convention, the adoption of the following amendment to the Constitution of the State, namely: "Article No charter, license or privilege to divert from their natural channel the waters of the Niagara river or any portion thereof above Niagara Falls shall be granted to any corporation, association, person or persons, except for sanitary, domestic or fire purposes, and such waters shall not be diverted for any purpose except as herein expressed. All corporations, associations, person or persons who have heretofore been licensed or granted the right to divert the waters of said river shall be under the direction and control of 'The Commissioners of the State Reservation at Niagara,' or such other official or officials as may be given the control of said reservation, so long as said corporation, association or persons shall be permitted to divert the waters of said river. Each of said corporations, associations, person or persons, shall only be permitted to divert any portion of the waters of said river in such amounts and upon such conditions, and for such compen sation to the State as said commissioners or official or officials having charge of said reservation shall prescribe and determine. But this section shall not be so construed to affirm or impair the charter of any such corporation, association or person, or any right, privilege or license under which they or either of them may claim to divert the waters of said river."

All of which is respectfully submitted.

JOHN A. BARHITE,

Chairman of Sub-Committee.

SUBSTITUTES AND AMENDMENTS

OFFERED TO PROPOSED CONSTITUTIONAL AMENDMENT No. 442, RELATIVE TO THE DIVERSION OF THE WATERS OF THE NIAGARA RIVER.

Substitute offered by Mr. Barhite

Proposed costitutional amendment to amend the Constitution by the addition of a new article relating to the diversion of the waters of Niagara river.

The Delegates of the People of the State of New York. in Convention assembled, do propose as follows:

The Constitution is hereby amended by the addition of the following new article:

Section The Legislature shall not hereafter grant any charter, license or privilege, to divert from their natural channel the waters of the Niagara river, or any portion thereof, above Niagara Falls, to any corporation, association, person or persons except for sanitary, domestic or fire purposes, and such waters shall not be diverted for any other purpose except by the corporations, associations, person or persons who have heretofore been licensed or granted the right to divert the waters of said river, or who may now be engaged in the actual diversion or use thereof for manufacturing or business purposes. All corporations, associations, person or persons who have heretofore been licensed or granted the right to divert the waters of said river, or who may be now engaged in the actual diversion or use thereof for manufacturing or business purposes without express license or grant, and all corporations, associations, person or persons who may hereafter be granted the right to divert the same for sanitary, domestic or fire purposes, shall be under the direction and control of the Commissioners of the Land Office, who may, from time to time, after due notice to the Commissioners of the State Reservation at Niagara, and to the corporations, associations, person or persons having grants or licenses to divert, or now actually engaged in the diversion or use of said waters, make such orders and give such directions in regard to the diversion and use of said waters as shall be just and equit

able. But this section shall not be so construed as to affirm, enlarge or impair the charter of any such corporation, association or persons, or to affirm, enlarge or impair any right, privilege or license under which they, or either of them, may claim to divert the waters of said river.

Substitute offered by Mr. Root :

The Legislature shall not, hereafter, grant the right to divert from their natural channel any of the waters of the Niagara river above Niagara Falls, except for sanitary, domestic or fire purposes; and such waters shall not be diverted for any other purpose except by the corporations, associations or persons who may now be expressly authorized to divert the same, or who were on the 1st day of September, 1894, engaged in the actual diversion thereof for manufacturing or business purposes.

All corporations, associations and persons to whom the right to divert such waters has heretofore been granted, or who were, on the 1st day of September, 1894, engaged in the actual diversion thereof, for manufacturing or business purposes, or to whom the right to divert the same for sanitary, domestic or fire purposes may be bereafter granted, shall be under the direction and control of the Commissioners of the Land Office, who may, from time to time, after due notice to the Commissioners of the State Reservation at Niagara, and to the parties interested, make such orders and give such directions in regard to the diversion and use of such waters, as shall seem just and equitable.

This section shall not be so construed as to affirm, enlarge or impair the charter of any such corporation, association or persons, or to affirm, enlarge or impair any right, privilege or license under which they, or either of them, may claim to divert the waters of said river.

Amendment offered by Mr. Dean :

Striking out all the proposed substitute after the word “ poses," in line five, so that it shall read :

pur

"The Legislature shall not hereafter grant the right to divert from their natural channel, any of the waters of the Niagara river, above Niagara Falls, except for sanitary, domestic or fire purposes."