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“The district officer has been informed by the canal board that it is ready to abandon the present lock and dam as soon as new structures are constructed by the United States, and that the project submitted meets with the approval of the advisory board of canal engineers.”
In the report of Col. W. M. Black, of the Corps of Engineers, also embodied in said House document, it is said:
“Certain manufacturing establishments on the east and west banks of the river are now using power developed by the dam under leases obtained from the State of New York. The lease for the east side was obtained in 1832. It may be summarized as follows: “The lease is for the use of one-half of *
the surplus waters created by the erection of the State dam in the Hudson River *
for the term of nine hundred and ninety years.'
“The lessees are to pay to the State —
"$50 for the first year, with an increase of $50 a year for every year thereafter until it amounts to the sum of $300 a year, and then to continue at the said sum of $300 a year for the remainder of said term.
"The conditions of the lease stipulate that the lessees
the use of the surplus water which may be taken at the east end of the aforesaid dam, and not exceeding one-half of the quantity which may be taken at both ends of said dam, such surplus water to be taken and drawn from the said dam at such place and in such manner, and be discharged at such place and in such manner, as the acting canal commissioner or the canal commissioners shall from time to time direct; saving and reserving to the said parties of the first part the right wholly to resume the waters hereby conveyed and the privileges hereby granted, and to control and limit the use of said water and privileges whenever, in the opinion of the canal board or of the legislature, the necessary supply of water for use of any State canal, or the safety of such canal, or works connected therewith, shall render such resumption, control, or limitation necessary. And in case any such resumption shall be made, or control or limitation imposed, no compensation
or damages shall be allowed for any improvements or erections made, or which may be made under or in consequence of this grant or lease. And also saving and reserving to the said parties of the first part the right, without making any compensation to the said parties of the second part, or any other person claiming under them, wholly to abandon or destroy the work, by the construction of which the said surplus water has been created, whenever, in the opinion of the canal commissioners, the occupation and use of the said work shall cease to be advantageous to the State.”
“The lease granted for water for the west bank was made in 1835 for the same term of years and in similar form with similar provisions.
“Under these leases certain manufacturing establishments on the east bank have been using about 1,740 horsepower per year and those on the west bank about 190 horsepower. The State authorities have permitted these establishments to raise the crest of the dam by flashboards and to store water by night for use during the day, causing fluctuations in the pool level during the season of lowest water, which might be inadmissible when the new barge canals are in full operation. It is probable that when the new dam is built there will be surplus water sufficient to develop at least 1,400 horsepower, which should be utilized. A small portion of this can be used for operating and lighting the lock; the remainder can be sold.
“It will be noted that the abandonment of the existing structure by the State extinguishes these leases automatically. The legal successors of the canal commissioners are the canal board. I am informed that this body is ready to abandon the dam as soon as the United States has constructed a new lock and dam. The proposed change in location of the dam would not prevent the continued use of the surplus water for obtaining power by these establishments, for a flume can be constructed to supply it. New and mutually advantageous arrangements can be made, if desired, with the owners of these establishments for this purpose, or, since the removal of the site makes it possible to locate other new establishments in a position
which would make it possible to utilize the power, with other parties. In other words, the change in location of the dam would not destroy any vested rights for the use of the power developed, nor would such removal prevent the present users from continuing its use. It would, however, place the Government in a position to obtain an adequate return for such power. Time has not permitted an estimate of cost of a new flume to be made.
“To recapitulate, attention is again invited to the fact that this report is submitted on account of the urgent need of beginning work at and near the State dam in order that the barge canal commerce may have access to the river as soon as the canals are opened. The detailed project has not yet been completed for the reason that its formation was not directed by Congress until March, 1909, and the fieldwork could not be completed until the end of November. Much study is yet required before definite recommendations can be made as to the details of the work. The estimates are approximate only, but are believed to be sufficient to cover the work required.
"These estimates are as follows:
Channel from Waterford to dam...
$44, 000 Lock, dam, and piers.....
547, 100 Clearing river bed immediately below dam..
106, 250 Removal of old lock and dam.
79, 407 Basin below lock......
239, 270 Improvement between head of Adams Island and head of Breaker Island......
1, 328, 882 Improvement from head of Breaker Island to deep water at Hudson.....
2, 369, 695
5, 186, 064
“Of the above, the estimated cost of the work properly chargeable to the harbor of Troy is $420,559; that for the harbor at Albany is $105,000.
“The cost of the work estimated for Coeymans, amounting to $9,200, is not included in the above figures.
“If this project is approved and the work authorized, provision should be made for executing the work under continuing contracts. Unless the dredging and rock excavation can be carried on under a large contract, it is probable that work of that character above and below the dam can be done most advantageously separately, as separate plants would have to be provided on account of the difficulty of passing the sloop lock. It is important that the work in the lock and dam should be started at the earliest practicable date, and that the connecting channel between the new lock and the existing channel below should be started in time to permit its completion immediately after the new lock and dam are built, in order that the commerce through the canals may be stopped for as short a time as practicable. The sum which can be expended advantageously in the coming year under a continuing contract for the construction of a lock and dam is $300,000. The entire sum should be made available within two years in order that the work can be completed within three working seasons.
“In the work below the dam $1,000,000 can be expended advantageously in the next working season.
The money should be made available for the improvement of the Hudson between Waterford and New York Harbor."
It seems clear that the ultimate extinguishment by the State of New York of all existing water-power rights or privileges affected by the improvement in question, through the abandonment of the said dam or otherwise, was one of the conditions referred to by Congress in appropriating for the work in question, and I understand you have so construed the act.
The resolution of the canal board of November 22, 1910, in regard to the cancellation of existing water rights and the abandonment of said dam and lock, as appears from the certified copy thereof transmitted by you, reads as follows:
“Whereas, by the provisions of chapter 147 of the laws of 1903, and the acts amendatory thereof and supplemental thereto, the State has directed the improvement of that portion of the canal system of the State which lies in the
thread of the Hudson River from Congress Street, in the city of Troy, to Waterford, and
“Whereas in the carrying out of that improvement so directed by the legislature, it now is apparent that the existing State dam and lock at Troy must be destroyed, and
“Whereas on the 2d day of January, 1832, and on the 26th day of November, 1835, the people of the State of New York, by the then canal commissioners, executed two leases, the first to the Lansingburgh Dry Dock & Hydraulic Co. and the second to one George Tibbitts, whereby there was conveyed to said parties all of the surplus water created by the said Troy dam and lock, and
“Whereas in both of said leases certain rights and privileges were reserved to the State by the following clause, incorporated in both instruments:
“[Here follows the clause quoted in the report of Col. Black, of the Corps of Engineers, above set forth, beginning with the words 'saving and reserving.'] “and
“Whereas the Honorable Frederick C. Stevens, superintendent of public works, as successor to the said canal commissioners, has this day notified this board that in his opinion the occupation and use of the structures by whose maintenance the surplus water conveyed by said leases has been created, have ceased to be advantageous to the State, and by virtue of the authority and power reserved to him, as successor to the canal commissioners, has recommended that the said structures be wholly abandoned and that their destruction be authorized and approved; now be it
“Resolved, That it is the opinion of this board that the whole of the surplus water created by said dam and lock is now necessary for the use of the canals of the State and the works connected therewith, authorized and directed by said chapter 147 of the laws of 1903, and the acts amendatory thereof and supplemental thereto, and that the said surplus water be and the same hereby is wholly resumed.
“And be it further resolved, That the said dam and lock, by the construction of which the said surplus water has been created, be and the same hereby are abandoned, and the destruction thereof be and the same is hereby authorized.