upon certain conditions for making one half of the surveys of the canals, which you were entitled to make under your proposition for the said surveys, as accepted by the Canal Commissioners?

[This question is objected to on the ground that the contract between Mr. Trumpbour and Mr Hutchinson was in writing, and has already been proved before the committee, together with the written assent of the Canal Commissioners, and it is not therefore competent to give parol evidence of that contract, its terms or conditions. Mr. Livingston replies, that the testimony expected to be drawn out by this interrogatory is not to shew what the contract was, but other circumstances connected with it.

Mr. Trumpbour by his memorial, represents that his contract is with the Canal Commissioners, that the inatter between him and Mr. Hutchinson was in effect the place of division, if that be so, I see no objection to the question.]

A. When I delivered the letter of Mr. Seymour the paper was executed which is signed Jacob Trumpbour and Holmes Hutchinson. Mr. Trumpbour agreed to conform to my plan of survey, and to fursue the same uniform system throughout. I stated to Mr. Trumpbour that I had made surveys to designate the quantity of land taken for the use of the canals, and to designate the boundaries, and this had been done by running one line with the chain and compass by measuring offsets to the exterior lines. But that I wished the approbation of the Canal Commissioners before a final determination of the details of the plan; for the purpose of ensuring that uniformity, Mr. Trumpbour further agreed that the maps of his portion of the surveys should be made at Utica, by the same persons that executed mine; these conditions were to have been the basis of his contract with the Canal Commissioners for the execution of one half of the canal survey, and it was well understood at that time by him and myself, that the Canal Commissioners must be fully assured that these conditions would be performed before they would execute any contract with Mr. Trumpbour. I had an interview with Mr. Trumpbour at PortByron, the latter part of August or the first of September, 1829, when he had surveyed about eight miles of the Erie canal, and again saw him at Utica about the fourteenth of October, when I was told he had surveyed about twenty miles, apart however I believe on one side only. At this last interview my plan of surveying the canals, that had been approved by the Canal Commissioners, was clearly explained to Mr. Trumpbour, and he was requested to conform to it, and to procure books similar to those shewn him for his field-notes; his reply was that he had been accustomed to keep his field-notes differently, but that he would take his minutes of survey as he had done (and as he promised on the thirteenth day of April, and subsequently,) in so full a manner as to conform to mine, in the copies for the returns. When Mr. Trumpbour returned to Útica in December following, he then, for the first, time objected to the method that had been prescribed for making the survey. Contracts were to have been made by previous understanding at this time by each party with the Canal Commissioners for the execution of the survey, but this refusal on the part of Mr. Trumpbour to conform to

the original understanding prevented the execution of those con

tracts.

IN COMMITTEE-18 May, 1832, Friday.

Present-Mr. M'DONALD,
Mr. HOGEBOOM,

Mr. HAMMOND, Ch'n.

The memorialists and their counsel.

Mr. Hutchinson further examined.

2 Q. Did you object to Mr. Trumpbour's having part of the survey to do when that proposition was first made to you? [This question is objected to for irrelevancy.]

A. I did apprise Mr. Seymour, when he applied to me on the part of Judge Trumpbour, I objected to a division, or to allow him to execute a part of the survey, on the ground that he might not be willing to pursue a uniform system, or make his survey conform to mine. Mr. Seymour stated that Judge Trumpbour was very desirous to do part of the work, and he had no doubt of his willingness to conform to a uniform system in doing the work, and requested me to see Judge Trumpbour in relation to that subject.

3 Q. Did you apprise Mr. Trumpbour of the matter stated in your last answer before the paper writing of the thirteenth April, 1829, was signed by yourself and Mr. Trumpbour?

A. I did, cr the substance of it.

4 Q. (By the committee.) Did you, at that time, disclose any plan of survey to Mr. Trumpbour?

A. I informed Mr. Trumpbour that I had made several surveys, to designate the boundaries of the lands taken for the canal, and the quantity; that these surveys had been done by running one line with the chain and compass, and taking offsets to the exterior bounds; that this survey was of great importance, and I wished the approbation of the Canal Commissioner to the details of the plan, so that the work might be approved when done.

Cross examined on the part of Mr. Trumpbour.

5 Q. Is the letter shewn to you, marked by the committee, Exhibit C, 10 April, 1832, in the proper hand writing of Henry Seymour, late acting Canal Commissioner?

A. I believe it is.

The following is a copy of said letter:

"JACOB TRUMPBOUR, Esq.

"DEAR SIR,

"Utica, April 7th, 1829.

"The bearer is Mr. Hutchinson, who made proposals for surveying the canals; he will confer with you on the subject of dividing the job with you and any agreement which you may make with him, not

more disadvantageous to the State than Mr. Hutchinson's proposition, will be acceptable to the Canal Commissioners.

"With much respect,

"Your obedient servant,

HENRY SEYMOUR."

6 Q. Were you the bearer of that letter to Judge Trumpbour, and did you know its contents before its delivery?

A. I was the bearer, and think I knew the contents.

7 Q. Was the agreement, marked by the committee Exhibit E, 24 April, 1832, signed by you and Jacob Trumpbour; and was it entered into at the time, and in consequence of the delivery of that letter?

A. It was so signed, on the day it is dated I presume; and in consequence of the delivery of that letter, and of the request of the Canal Commissioners, and of the agreement of Judge Trumpbour at the time; I mean to say I signed it, for the reasons set out in my direct examination. It was signed at the time of the delivery of that letter to Mr. Trumpbour.

The following is a copy of said agreement:

"To the Canal Commissioners.

"We agree to divide the survey of the canals at Canastota. Mr. Hutchinson to take the eastern part of the Erie canal and the Champlain canal, and Jacob Trumpbour to take the western part of the Erie canal and the Cayuga and Seneca and Oswego canals; each to be entitled to one half of the $5,000, or the one half of the proposition as made by Mr. Hutchinson.

"13 April, 1829."

"JACOB TRUMPBOUR,
"HOLMES HUTCHINSON.

8 Q. Had you ever seen Jacob Trumpbour before that time? A. I never had to my knowledge.

9 Q. What reason had you for apprehending that there would be any difference in the plan of survey; or that he would be unwil ling to conform to a uniform method before you had any interview with him?

A. Surveyors are matter of fact men. This survey was of great importance, and it was necessary that the plan should be fully understood. As I was unacquainted with Judge Trumpbour, differences in the details were to be apprehended, and I could not judge of his willingness to conform to my plan of survey.

10 Q. At whose house did the interview between you and Jacob Trumrbour, on the 13th of April, 1829, take place? Were Da vid H. Burr, Jacob K. Trumpbour and Mr. Cockburn, or either of them, present during that interview, or any part of it?

A. The interview was at Mr. Trumpbour's house, and in his office. I saw Jacob Trumpbour the evening previous at a tavern. There were several persons present at his house, and a part of the time there was a person or persons present at the office. I think I [A. No. 335.]

16

saw David H. Burr there, and several other persons; the other persons I was not acquainted with at that time.

11 Q. What plan of survey of yours was it that Judge Trumpbour agreed he would conform to?

A. It was a plan that I intended to mature, which should obtain the sanction of the Canal Commissioners.

12 Q. If he agreed to adopt a plan to be devised, why was it not inserted in the written agreement made between you?

A. At the time that paper was signed, which was drawn up by Mr. Trumpbour, I also wrote a memorandum, which went more fully into the details of the plan and maps; this he declined signing, on the ground, as he alleged, there could be no misunderstanding, and that the arrangement was well understood, and it was therefore inexpedient to go more fully into the details until the views of the Commissioners were more fully known.

13 Q. What has become of that memorandum?

A. It is lost or mislaid.

14 Q. When did you last see it?

A. I have not seen it since a short time after it was written. 15 Q. The want of conformity to your plan of survey, having previously been strongly apprehended by you, and Judge Trumpbour having refused to sign a memorandum to that effect when your cgreement was written, did you not consider the condition of conforming to your survey as abandoned?

A. I did not so consider it.

16 Q. Why did you not then preserve the memorandum? A. I don't know how that memorandum got lost.

17 Q. In communicating what had passed between you and Mr. Seymour to Judge Trumpbour, as stated in your direct examination, what language did you use, or what did you say? give the words or their substance.

I had a long conversation with Mr. Trumpbour, and stated to him that I had had a conversation with Mr. Seymour, in which Mr. Seymour wished me to make an arrangement with Mr. Trumpbour for dividing the survey of the canals. That Col. Bouck and himself would be gratified with arrangements of that kind, and that Mr. Seymour said there must be a uniform plan of survey.

18 Q. In stating to Mr. Trumpbour that you had surveyed lands taken for the use of the canal, upon the plan of a single line with offsets, had you reference to the survey of the Erie canal from Rome to Schenectady, and what others, if any?

A. I had reference to the survey of part of the Erie canal, the Blackstone canal in Massachusetts and Rhode-Island, and surveys on the Cumberland and Oxford canals in Maine, made by me or under my direction. I had reference to the survey of that part of the Erie canal from Rome to a few miles below Schenectady.

19 Q. Did the survey of the Erie canal which you refer to, designate the boundaries of the State land belonging to the canal?

A. There were no boundaries placed in that survey; but it was measured by offsets to the outside of the embankments, and included all the lands necessarily taken for the canals.

20 Q. Did it give any thing more than the average width of the several parcels of land taken from different farms for the canal?

A. It gave a survey on the line of the towing path and the width at different places measured by offsets; and from these measurements, the average width and quantity were ascertained.

21 Q. Were the surveys of the canals in Massachusetts, RhodeIsland and Maine, to which you have referred, made before or after the canals were completed, and for what purpose?

A. The first survey on the Blackstone canal was made before its completion, for the purpose of ascertaining the quantity of land requisite for the use of the canal, and the maps made from the survey were filed, for the purpose of the appraisement. A subsequent survey was made after the canal was completed; partly under my supervision, by my assistant engineer, for the purpose of designating the boundaries. That in Maine was made partly before the construction of the canal, for the purpose of the appraisal of damages.

22 Q.. Did Judge Trumpbour communicate to you his plan of survey at the time of your first interview in April 1829?

A. He did not. But we had a good deal of conversation upon the subject of the surveys.

23 Q. Did he state to you that he had communicated his plan to any, and which of the Canal Commissioners?

A. He did not.

24 Q. When was Mr. Johnson's plan of survey first communicated to Mr. Trumpbour, to your knowledge?

A. The plan of survey that Mr. Johnson pursued under my direction, was communicated to Mr. Trumpbou about the 14th October, 1829, at the time of a meeting of the Canal Commissioners at Utica. Besides, in addition to a particular conversation upon the subject, I shewed him my blank field books, one of which is now before the committee I believe, in the book-store of Mr. Hastings and Tracy, in Utica.

Adjourned, 4 P. M.

The committee met-May 18th, 4 P. M.

25 Q. When was the plan of survey pursued in surveying the Champlain canal adopted, and what plans of survey had been diseussed between you and Mr. Johnson at that time, or shortly previous thereto ?

A. I think it was adopted in September, 1829, and sanctioned by the Canal Commissioners. We had discussed the general plans; one to run a base line with offsets; the other, to run a line on each side of the canal.

26 Q. By which of the Canal Commissioners was your plan sanctioned, previous to Mr. Johnson's commencing the survey? A. By Mr. Seymour, who had charge of that business.

27 Q. Did Mr. Seymour, in December 1829, advise a reference of the two plans adopted by you and Mr. Trumpbour, to the Canal Board?