IN ASSEMBLY, January 20, 1831. REPORT Of the select committee on the subject of the abduction of William Morgan, in relation to the special circuit court for the county of Niagara. Mr. Otis, from the select committee on so much of the Governor's message as relates to the abduction of William Morgan, and to whom was referred the message of the Governor of the 18th of January instant, with the accompanying papers, REPORTED 1 That from an examination of the message and papers submitted to the committee, it appears that from an accidental misunderstanding between the special counsel and the circuit judge of the eighth circuit, the special circuit court directed to be held in the county of Niagara, by an act of the Legislature, passed April 17th, 1830, has ceased. It also appears that there are several indictments in that county yet untried; and that the objects of the law of the 17th of April last, cannot be accomplished without a renewal of the principal provisions of that act. The committee have therefore directed their chairman to prepare a bill accordingly, and ask leave to introduce the same. [A. No. 54.] IN ASSEMBLY, January 24, 1831. MEMORIAL Of Lyman A. Spalding, relative to the surplus waters at Lockport. To the Legislature of the State of New-York, in Senate and· As· sembly convened. The memorial of Lyman A. Spalding, a citizen of this State, and an inhabitant of the town of Lockport and county of Niagara, RESPECTFULLY SHEWETH: That your memorialist has seen with surprise, that the Canal Commissioners of this state in the annual report made by them to the legislature on the 17th of the present month, have thought proper to arraign your memorialist not only before your respective houses, but before the people of this state, as having wantonly trespassed upon the public property and trampled upon the rights of his fellow-citizens. That complaints have been made of the proceedings of the Canal Commissioners, on the subject of the surplus waters at Lockport, is most true: that it was the determination of your memorialist to bring those complaints before the proper tribunals of the country, is equally true, and that such determination was known to the Canal Commissioners is more than probable. That such high and important officers of the government should have deemed it necessary to anticipate the regular course of inquiry, and by an ex parte statement in an official communication required by law to be made for very different purposes, pre-occupy if not prejudice the minds of those who were to pass upon their conduct, has indeed excited the surprise of your memorialist. And when he recollects the high standing of these officers, their individual responsibility and their official character, the almost boundless confidence which has so long [A. No. 55.] 1 been bestowed upon them by the legislature, the immense patronage attached to their stations, and the crowd of personal and political friends whom they can rally in their support; your memorialist cannot but entertain the most serious apprehensions, that the merits of his hard case, will necessarily be obscured by the prepossessions which their report is calculated to produce. Although oppressed by the weight of these considerations, and deeply feeling the disadvantageous auspices under which he approaches the legislature, yet he has no other resource; and he humbly trusts that at least a patient attention will be yielded to a plain narration of the facts and circumstances, which have involved him in this unequal controversy, and which now threaten him with utter ruin. Self defence and the protection of the fruits of a life of toil and care, arc his objects. He seeks the crimination of no one, and he trusts that even his sufferings will not wring from him complaints or censure. In the year 1825, Darius Comstock was the owner of a tract of land, consisting of between six and seven acres, on the hill southeastwardly of the double locks at Lockport. There was a natural stream of water which ran through this land, and fell over the precipice of about 80 feet created by the hill. It is the opinion of the oldest inhabitants of that region, that the water which descended this precipice, was at all times sufficient for two run of stones in a flouring mill, and in the spring and fall of the year, and in wet seasons, was sufficient for eight run of stone. This stream was entirely absorbed by the canal, and was taken into it above the locks. In the month of July, 1825, and before the canal was completed, (which it will be recollected was not until October of that year,) the Canal Commissioners advertised, for sealed proposals for the surplus waters that might be discharged at the locks. As the navigation of the canal had not commenced, and no experiments had been made to ascertain what quantity would be discharged, and as it was wholly uncertain whether the quantity would be uniform or fluctuating, although the latter was most probable, the value of the use of the water was entirely conjectural. Although Darius Comstock had been advised, that if the state or any individual thought proper to throw water upon his land, no power known to our laws, could give any other person the right of appropriating his land, for the purpose of using such water, or for any other private purposes; yet disposed to cultivate peace, he put in a proposal by which he offered to pay the state fifty dollars a year for the use of the surplus water. At the same time, Richard Kennedy, a merchrnt at Lockport, who did not own a foot of land on which the water could possibly be brought, put in a proposal offering $200 a year for the same water. In the month of September, 1825, while these proposals were under the consideration of the Canal Commissioners, and three months before any decision was made on them, your memorialist purchased of Comstock the tract of land before described, for the price of $5,500, and agreed to take upon himself to fulfil the proposal which Comstock had made. The value of the property at this time was entirely contingent, from the circumstances before mentioned. The general opinion was that your memorialist had made a bad bargain, and Comstock himself thought, that in no event could a supply of water for more than four run of stone be calculated on. Your memorialist believed, that when the commissioners became apprised of the circumstances, and of their inability to confer on any other purchaser than Comstock any right or privilege which would be worth purchasing, and when they should reflect on the consequences of a sale to any other, which would furnish ground for claims upon them or upon the state, they would not hesitate to prefer the offer of Comstock. And your memorialist further believed, that if the offer of any other was accepted, the purchaser would be wholly unable to avail himself of his bargain, without having previously procured from your memorialist a spot of ground to which he could conduct this water. The race which the commissioners had constructed, passed from the head of the locks and along the brow of the hill before mentioned about 350 feet, and then terminated, so that the water fell into the ravine below. The ground on which the race was made, as well as that over which the water fell, belonged to your memorialist, and while he admitted the authority of the government to take his property for public purposes, he was persuaded that no such authority existed to take it for the private purpose of any mill or other hydraulic works, which any individual might wish to erect. Your memorialist is gratified in finding this opinion sanctioned by the high authority of the Canal Commissioners in their report of the present month, in which they say that "the lessees took only the exclusive right of using the water," "and in case they had no land on which to erect hydraulic works, they took the risk of being able to purchase it, or of finding their recompence in selling their privilege to those who might possess or procure a location for mills or machinery." This opinion of your memorialist is also further sanctioned by the authority of the Comptroller and present Judge Marcy, as will appear by his letter, a copy of which is annexed. He |