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d, to this time. But, about four years past, the locks first érected being nuch decayed, having been built of wood, it was agreed by the company, hat a set of locks should be built of stone, and on a different site, so that hey might continue to receive their tolls through the first set of locks, which, by occasional repairs, might be made to do until the second set could be ompleted. Upon investigating their powers under their charter, it was the pinion of a majority of the then directors, that they had no right to make iny further condemnation of the same tracts of land, having availed themelves of all their right in the condemnation of 1793, as before mentioned. It was soon found that the old locks were unsafe, and that no repairs could pe effectual. The loss that the company must necessarily incur from a total suspension of their tolls at this point, while rebuilding, which would require at least two years, was of too much importance not to induce every exertion of their ingenuity to find an alternative, which was accomplished in the manner following: By their charter they were authorized to condemn a certain quantity of ground for a toll-house, contiguous to such ground as they should condemn for locks, if it should be deemed expedient: and as by the condemnation in 1793, there had been no ground specially condemned for a toll-house, it was ingeniously discovered that they still had the right to make a further condemnation for that special purpose and that, when they had procured such condemnation, they could apply it to the erection of another set of locks; and they proceeded, under this forced construction of their charter, after more than twenty years' experience of its inexpediency. The ground first condemned, viz: in 1793, having been found fully adequate to all the purposes of canals, locks, and a toll-house, the second condemnation was thus made and located, as best suited their designs, and they are now engaged in the erection thereon of a second set of locks; but the tollhouse erected on the ground condemned in 1793, and adjoining the first set of locks, has been continued as such to this time, and has lately been repaired and enlarged, even by the present directors, upon whose petition the bill now before your honorable body was predicated; from whence it irresistibly follows that the act of the directors, under whom this last condemnation was made, is not sanctioned by the letter or the spirit of their charter. At the time this second condemnation was made, the proprietors of the lands, for which they had paid a considerable price, from a conviction that they would be entitled to all the advantages of mill seats, &c, as contemplated by the original purchasers, and secured to them by the Legislature of Maryland in the aforesaid charter of 1784 to the Potomac Company, as will more fully appear by reference to the thirteenth section thereof, hereunto annexed, protested against their proceedings, upon the principle, that, as their charter expressly restricted them to 200 feet, and they had, by their condemnation in 1793, secured to themselves the full quantity, they had no right to make a second condemnation; they however proceeded, and the jury assessed $175 damages only, stating at the time that they merely valued the soil, as the company could not under their charter apply it to any other purposes than navigation, and the proprietors would still have sites sufficient for all the purposes of milling, &c. Here, then, the proprietors were disposed to Alatter themselves that the company were fully satisfied, and that they would be permitted to enjoy their privileges so soon as they could make an arrangement among themselves to bring them into operation: but, much to their astonishment, they see that the company, not satisfied with this and various other encroachments, have petitioned Congress to grant to them a right ex

t buildings for nine

pressly secured by the Legislature of Maryland to the holders of the lane
through which their canals pass, and sanctioned by the company themselves.
by their acceptance of a charter containing such a provision: and which, :
granted by Congress, will go to destroy all the advantages for which the pre-
sent proprietors paid dearly, and deprive a number of fatherless children of
a property which might eventually be to them a support. The prilege to
be granted to the company by the bill, is, “the use of the surplus water from
their canal, for the purposes of milling, &c. upon such lands as they Now
hold, or may purchase, or acquire by virtue of said bill.” Their charter
1784 expressly prohibits them from the use of the water to uf other pelo
pose than that of navigation, unless by consent of the proprietors a the lands
but secures the use of the surplus water for milling, &c. to the boat or the
lands through which their canals shall pass. If, therefore, this pretty
granted to the company without the consent of the proprietors, the ze
als owning the lands will be injured in a two-fold degree; for thes!
only be deprived of the use of the surplus water, but the very prow
tained in the thirteenth section, as aforesaid, of the charter intended.
benefit, and predicated, no doubt, upon a compromise between the ti
prietors of the land and the persons who applied for that charter, will
been an instrument for their oppression. In order to illustrate this po
it will be necessary to refer to the annexed plat. Thus it will be
the company, in making their second condemnation, have ingenios
designedly located it so as to unite it with their condemnation of 17
by making themselves the owners (now) of the entire slip of land
within the lines A, B, C; upon which they may erect buildings
&c. sufficient to consume the whole of the surplus water; and.com
deprive the proprietors of the adjoining land through which the
ses, of all the advantages thereof: at the same tine, they are se
the damages that any jury would have awarded, if they could
that any Congress would grant them such use of the surplus"
ry to the express provision of the Legislature of Maryland; for
under a full conviction that the right was thereby secured to the
and consequently conceived themselves precluded from estimating
ges, excepting merely as to the soil; thus, in effect, operating a
injury, instead of a protection. It may be proper now to obse
charter of 1784 was applied for, and granted, upon the sole prete
proving the navigation, to which the proprietors of the land as
the company confirmed the right of using the surplus water to
tors of the land, by the acceptance of their charter containing such
The company subsequently completed their navigation through
availing themselves not only of all the privileges granted them
have unlawfully, and, we might almost say, wantonly, introd
bundant number of sluice gates (or waste ways) into their canas,
undating much of the proprietors' low lands, and redering the
useless; and all this they have done without a solitary attempt
of the proprietors to impede them in their operations. Upon whan
then, they can expect Congress to dispossess individuals of priv
they themselves sanctioned in 1784, must be for them to exp
though the power to dispose of so many mill-seats, &c. whic
must produce, might afford a fine field for speculators, it wou
table to suppose there were any private views at the bottom of
They cannot want additional power to enable them to complete

, they are secured from they could have forever e surplus water, contri

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to explain: for

&c. which such a ors, it would be uncha

ottom of their petiti o complete the gari

tion, for that is already done, so far as the jurisdiction of Congress extends.

They may perhaps urge that there is a vast body of water wasting daily, , which might be applied to very valuable purposes; but surely this can give | no pretensions; for in a free country like ours, it is doubtless the right of

every individual to use his property or not; and besides, they have delayed their application too long; for the proprietors are at this moment making ar

rangements, within the knowledge of the company, to bring the whole of , this waste water into operation. They may state, and probably with much

truth, that the company are in want of funds; but here, 0 modesty! where

is thy blush? Will they wrest from many fatherless children rights which , they themselves, by the acceptance of their charter in 1784, secured to their parents? may they not with as much propriety require a tax, for their bene

fit, upon the present paltry salaries of the President and Heads of Departiments, and compensation to the members of Congress, being in their hum

ble opinion too high? It will no doubt be strongly urged that the lands in question are shortly to be sold, and that it is important, for the interest of

the stockholders, that they should be empowered by an act of Congress to ! purchase them, and to dispose of the surplus water thereon, and on such as

they now own, for the purposes of milling, &c. This will not be denied;

but surely they could not have comprehended the effect of so modest a reI quest, being simply to deprive the individual owners of the lands of their I rights, and to put the profits accruing therefrom into the pockets of the ini dividual stockholders. ' And here we ask leave respectfully to call your at. I tention to the phraseology of the bill upon your table. It not only authoriz

es the company to use or sell the surplus water upon such lands as they may hereafter acquire by virtue of said bill, but to use or dispose of it upon such lands as they now own. It needs no argument to show, that, once grant them this power, and they are absolutely independent of the proprietors of the adjoining lands; for, upon the triangular piece of land, marked A, B, C,

on the annexed plat, * which they have ingeniously contrived now to hold, 1 they can and will expend the whole of the surplus water, and leave the in

dividuals to enjoy their waste lands, dispossessed of their most valuable

rights. Thus much the proprietors have deemed it expedient to state upon Į a subject in which a very considerable property is materially implicated,

solely with a view that its merits should be before you; and they confidentį ly appeal to you as the faithful guardians of their rights.

THE PROPRIETORS,
WM. ROBERTS, as proprietor and guar-

dian of the children of A. Cloud. February 19, 1816.

Extract from the Charter of 1784.

“Sec 13. And whereas some of the places through which it may be necessary to conduct the said canals may be convenient for erecting mills, forges, and other water works, and the persons, possessors of such situations, may design to improve the same, and it is the intention of this act not to interfere with private property, but for the purpose of improving and perfecting the said navigation: Be it enacted, that the water, or any part thereof, conveyed through any canal or cut made by the said company, shall not be used for any purpose but navigation, unless the consent of the proprietors of the land through which the same shall be led, shall be first had; and the

* Accompanies the original.

said president and directors, or a majority of them, are hereby empowered and directed, if it can be conveniently done to answer both the purposes of navigation and water works aforesaid, to enter into reasonable agreements with the proprietors of such situation, concerning the just propertion of the expenses of making large canals or cuts, capable of carrying such quantities of water as may be sufficient for the purposes of navigation, and also for any such water works as aforesaid."

(C.)

GEORGETOWN, 27th May Isis

Srr: I will thank you to state whether you were not, as Presiden Potomac Company, engaged, in 1817 or 1818, in a negotiation will K. Smith, for laying off and disposing of sundry sites for manufacturing? poses on the canal of the Little Falls of the river Potomac? What nere of sites were proposed to be laid off? The price fixed upon or limitu each? and how many you think could have been disposed of, if the negu. tion had been carried into effect? and the causes for which the negou failed and was broken off?

I am, very respectfully,' ..

Your ob't servant, To Mr. WM. MARBURY.

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GEORGETOWN, 3d June, le

ito a negotiations

aying off certain site e Falls of Potomae 1 proposed in writing to

SIR: In reply to your within letter, of the 27th ult. I have to sta I did, as President of the Potomac Company, enter into a negou John Kilty Smith, in the year 1817 or 1818, for the laying on ce for manufacturing purposes, on the canal of the Little Falls of ver; that, after several interviews with Mr. Smith, I proposed in have twenty sites laid off, to be disposed of at public sale, by an a mutually agreed upon between Mr. Smith and myself, at noti thousand dollars for each site, being the number and price agreeu tween Mr. Smith and myself; and I do not hesitate to state, u could have been immediately disposed of, had not Mr. Smith su insisted upon innovations and conditions that could not be accede prevented any agreement being carried into effect; and that Mt. the sole and only cause of the negotiation being broken ofi..

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id that Mr. Smith

WM. MARBURY

To Mr. WM. STEUART.

June 19, 1898 attention has been est

of the number of een templated arrangement

Since the foregoing letter was signed by me, my attention! to the terms used in that part of it in which I speak of the nu which might have been disposed of, in case the contemplated a had not been defeated. I do not wish to be understood to say that ten sites could have been sold; but that I verily believe, formation then communicated to me, that ten sites might have the price stipulated, and I have no reason since to change my

to say that I do believe, from the is

ange my opinion. WM. MARBURY

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Opinion of Walter Jones, Esq. upon certain questions relating to the

charter of the Potomac Company. [NOTE. 'Tis not thought necessary to print the detailed statement which accompanied the following questions when submitted to Mr. Jones, as the principal facts are sufficiently notorious, or may be collected from the printed statement laid belore Congress in 1816, by the then proprietors of the land.

There are two points established by the following opinion, well worthy the serious attention of all who are interested in the prosperity of the Potomac Company.

1. That the Company has no title, and, under the existing law, never can acquire any title, to the ground upon which the new locks (now nearly complete) have been erected, at an immense expense; and that the Company is liable, at any moment, to be ejected therefrom, at the pleasure of the proprietor.

2. That the proprietors of the land through which the canal passes are already well entitled to use the great supply of water discharged upon their land, and may be secured in the enjoyment of it without compensation to the Company. Now, it is notorious that the waste water thus thrown upon the land of the proprietors, and which must continue to be thrown there, is capable of an extensive and very profitable application to water-works.

When it is recollected, in addition, that the old locks have lately fallen down, so that the canal is rendered impassable until the Company shall either erect new locks upon the old site, or go on to finish the new locks upon ground which they hold at the mere will and pleasure of the proprietor, it will be obvious how essentially, the most important and vital interests of the Company must depend upon the discretion and judgment with which the proposals of the proprietors for purchasing the use of the surplus water are to be treated by those entrusted with the management of the Company's concerns. On that account it is strongly recommended, and greatly to be desired, that all those persons holding and representing large interests in the | Company, should attend the next general meeting in person, and judge and

decide for themselves, trusting as little as possible to the agency of proxies in so momentous a question.]

Questions submitted to Mr. Jones, as connected with the accompanying

statement, by J. K. Smith. 1. Is not the charter from the States of Virginia and Maryland to the Potomac Company in the nature of a compact, and not repealable in either State, without the concurrence of the other? .

2. Can the Company, after having acquired, by purchase or condemnation, a site for the canal, locks, and other works; after having led the canal through, and so far completed it; change the course of it, and proceed to condemn any other part of the land through which the canal has already passed, for any purpose whatever?

3. Is the condemnation of the 151 square perches of land, described in the inquisition of the 230 June, 1812, valid, under the circumstances of that proceeding? Was it then, or is it now, competent for the Company, by any process whatever, to condemn that land, either for the purpose ex

Murposetion of the 181

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