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sumption, to construct his water works, and would be protected in the use of such water. But his right would be secondary to that of the company, who would have a paramount title to the use of the water, whenever it became necessary to the primary objects of the canal, and circumstances should have rendered it incompatible with those objects to permit it any longer to flow in its accustomed channels. An arbitrary and unnecessary obstruction of those channels, and a wanton diversion of the water to other sluices, through which to discharge it, merely as waste water, would be clearly inadmissible.
Question 11. Answer. If the entire abstraction of such streams from the point where they fall into the limits purchased or condemned for the site of the canal, be necessary to the proper and scientific construction of the canal, then it might be considered as one of the items of incidental damage, for which the jury of inquest would be competent to compensate him; and, in that case, he would not be entitled to claim of the company so much water, in specie. If, however, the entire abstraction of the water was not essential (and I cannot conceive how it should be so in this instance) to the construction of the canal or its incidental works, according to approved rules of art, then it is clear the company have no right to debar the proprietor from the use of the water, but are bound to return it into its accustomed channels. Understanding, in this case, that an equal (or a greater) quantity of waste water is now discharged from the canal, as that which formerly flowed in the ancient channels of the intercepted streams, and that it would be equally practicable to discharge it by such ancient channels as through the sluices made on purpose by the company, I consider that circumstance as affording a practical demonstration of every fact and of every principle necessary to establish, beyond controversy, the right of the proprietor to that specific quantity of water which formerly flowed through his land by those channels, and his right of election either to take that water from the new channels through which it now flows, or to compel the company to return it into its ancient beds.
W. JONES. WASHINGTON, November 28, 1816.
Extracts from the Charter to the Potomac Company. Sec. ll. And, whereas it is necessary for the making the said canal, locks, and other works, that a provision shall be made for condemning a quantity of land for the purpose, Be it enacted, That it shall and may be law ful for the said President and Directors, or a majority of them, to agree with the owners of any land through which the said canal is intended to pass, for the purchase thereof; and in case of disagreement, or in case the owner there shall be femme covert, under age, non compos, or out of the State, on application to any two justices of the county in which such land shall lie, the said justices shall issue their warrant, under their hands, to the sheriff of their county, to summon a jury of twenty-four inhabitants of his county, of property and reputation, not related to the parties, nor in any manner interested, to meet on the land to be valued, at a day to be expressed in the warrant, not less than ten nor more than twenty days thereafter; and the sheriff, upon receiving the said warrant, shall forthwith summon the said jury, and when met, shall administer an oath or affirmation, to every juryman that shall appear, that he will faithfully, justly, and impartially, value the land, (not ex.
ceeding, in any case, the width of two hundred feet) and all damages the owner thereof shall sustain by the cutting the canal through such land, according to the best of his skill and judgment; and that, in such valuation, he will not spare any person for favor or affection, nor any person grieve, for hatred, malice, or ill will; and the inquisition thereupon taken shall be signed by the sheriff and some twelve or more of the jury, and returned by the sheriff to the clerk of his county, to be by him rceorded; and upon every such valuation, the jury is hereby directed to describe and ascertain the bounds of the land by them valued, and their valuation shall be conclusive on all persons, and shall be paid by the said President and Directors to the owner of the land, or his legal representative; and on payment thereof, the said company shall be seized in fee of such land, as if conveyed by the owner to them and their successors by legal conveyance: Provideu, nevertheless, that if any further damage shall arise to any proprietor of land in consequence of opening such canal, or in erecting such works, than had been before considered and valued, it shall and may be lawful for such proprietor,
as any such new damage shall happen, by application to, and a warrant from, any two justices of the county where the lands lie, to have such further damage valued by a jury in like manner, and to receive and recover the same of the said President and Directors; but nothing herein shall be taken or construed to entitle the proprietors of any such land to recover compensation for any damages which may happen to any mills, forges, or other works or improvements, which shall be begun or erected by such proprietor, after such first valuation, unless the same damage is wilfully or maliciously done by the said President and Directors, or some person by their authority.
Sec. 12. And be it enacted, That the said President and Directors, or a majority of them, are hereby authorized to agree with the proprietor for the purchase of a quantity of land, not exceeding one acre, at or near such of the said places of receipt of tolls aforesaid, for the purpose of erecting necessary buildings: and in case of disagreement, or any of the disabilities aforesaid, or the proprietor being out of the State, then such land may be valued, condemned, and paid for, as aforesaid, for the purpose aforesaid; and the said coupany shall, upon payment of the valuation of the said land,' be seized theref, in fee simple, as aforesaid.
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, or other water works, and the persons possessors of such situation 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 be first had; and the 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 agree ments with the proprietors of such situation concerning the just proportion 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.
By Sec. 17, the dimensions of the canal are prescribed, viz: “a cut or canal, twenty-five feet wide, and four feet deep,” &c. Note.-Those dimensions have been modified by succeeding acts.
Opinion of Wm. Pinkney, Esq. 29th October, 1819. I have read and considered the printed opinion of Walter Jones, Esq. dated Washington, 28th November, 1816, in answer to certain questions proposed to him by Mr. Smith, as a proprietor of land through which the Potomac Company's canal passes, within the District of Columbia.
I have also read and considered a copy of an opinion given by Mr. Marshall in January, 1792, referred to in Mr. Jones's opinion, together with a copy of the condemnation also there referred to, and have carefully examined the charter of the Potomac Company, a “Statement of Facts,” printed in 1816 at Georgetown, and referred to in a note prefixed to Mr. Jones's printed opinion, and a “plat of the land at the Little Falls of Potomac,” furnished by Mr. Smith:
And I am of opinion
18t. That all the principles and conclusions contained in Mr. Jones's opinion, are sound and correct.
2d That Congress will not, and with propriety cannot, grant an extension of the canal beyond the point fixed upon by the charter of Maryland, without the inducement of some adequate public purpose, and without securing to Mr. Smith a just compensation for his rights and privileges under the existing charter.
No. 370. Reported by the Committee on Roads and Canals. An act to amend the churter of the Chesu peake and Ohio Canal Com
pany, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the provisions of an act, which passed at the November session of the General Assembly of the State of Maryland, and is entitled “ An act in favor of the President and Directors of the Potomac Company and the Commissioners of the Federal Buildings, be taken and adjudged to be extended to the President amd Directors of the Chesapeake and Ohio Canal Company, and to the agents and contractors engaged on any part of the works of the said company within the District of Columbia.
SEC. 2. And be it further enacted, That so much of the act, entitled “ An act authorizing a subscription to the stock of the Chesapeake and Ohio Canal Company," as provides that not more than one-fifth part of the sum so subscribed shall be demanded in any one year after the organization of the company, shall be, and the same is hereby, repealed, so as to leave the subscription by the United States on the same footing, in this respect, upon which that of all other stockholders of the said company is now placed by the charter thereof.
Sec. 3. And be it further enacted, that the Chesapeake and Ohio Canal Company shall have power to obtain, in the manner provided by the thirteenth section of the act of the General Assembly of Virginia, passed January twenty-ninth, one thousand eight hundred and twenty-four, entitled "An act incorporating the Chesapeake and Ohio Canal Company,” to which, so far as respects the District of Columbia, the assent of Congresi
has hitherto been given, the said act being the basis of the charter of the said company, such portion of ground between the line of the said canal and the river Potomac, within the District of Columbia, as may be necessary to enable the company, by their President and Directors, to sell or let, for manufacturing or other purposes, the surplus water of the said canal, with proper sites for the use thereof; which surplus water the said company may enlarge at their pleasure, by means of the authority now vested in them.
Sec. 4. And be it further enacted, That the said company may in like manner obtain any ground covered with water, or otherwise circumstanced, which they may need for the formation of basins or moles; and, in consideration of their giving greater strength to the latter, may afterwards let for wharves, or other useful buildings, such lots as they may retain or improve on any such routes on the margin of any such basins; and, wherever the interests of the said company may, in the opinion of the President and Directors aforesaid, be thereby promoted, they may purchase and hold, seil, or let, the whole or any lot or tract of land through which the said canal may
be conducted. Sec. 5. And be it further enacted, That, for the greater security and comfort of travelling. as well as to obviate any obstruction to the use of steam boats, or other boats having masts therein, the said company shall have liberty to institute, at the company's expense, on all publio roads crossing the said canal, ferries, in lieu of bridges, over the same: and to make such bargain with the private holders of such tracts of land as may be divided by the said canal, and not acquired by the first section of this act, for the substitution of an adequate consideration for the use of a ferry or hridge across the canal; and, in case the proprietor and the company shall not be able to agree upon a reasonable consideration for the damages which such proprietor might sustain for want of such bridge or ferry, the same proceedings may be had for the assessment and payment of such damage as are provided by the thirteenth section of the aforesaid act of the General Assembly of Virginia.
Power of Attorney from Amos Binney." Know all men by these presents, that I, Amos Binney, of Boston, in the State of Massachusetts, for divers good causes and valuable considerations me thereunto moving, have made, ordained, nominated, constituted, and appointed, and, in my place and stead, put and deputed, and by these presents do make and ordain, nominate, constitute, and appoint, and in my place and stead, put and depute, William Steuart, of Georgetown, in the District of Columbia, my true and lawful Attorney and Agent, for me, and in 'my name, to commence, institute, and prosecute, with effect, any action or suit, actions or suits in any court or courts of law, or in equity, that shall or may be necessary for the protection, enjoyment, and free use, of my lands and water-rights in and to certain property near and adjoining the locks and falls of the Little Falls of the Potomac river, and to take and prosecute such other legal steps as the laws shall authorize and allow, and as my said attorney shall think proper; to memorialize the Congress of the United
States, and to submit to reference any dispute or disputes which may arise touching the premises; and, for that purpose, for me, and in my name, to make, sign, seal, deliver, and execute, any bond or bonds of arbitration, in any reasonable penalty or penalties; and, generally, for me, and in my name, to do all such other acts and matters and things, in the premises, for accomplishing the purposes aforesaid, as fully and effectually, to all inter ts and purposes, as I myself might or could do if personally present. The said Amos Binney hereby ratifying, allowing, and confirming, all and whatsoever my said attorney shall lawfully do or cause to be done in the premises, by virtue of these presents. In witness whereof, I, the said Amos Binney, have hereunto put my hand and seal, this thirteenth day of December, one thousand eight hundred and twenty-eight.
AMOS BINNEY, SEAL.]
William M. STEUART,
UNITED STATES OF AMERICA;} Washington County, to wit:
Be it known, thi, on this 30th day of December, one thousand eight hundred and twenty-eight, before me, Richard Johns, Notary Public, dwelling in Georgetown, in the County and District aforesaid, came Amos Binney, Esquire, within na ned, and acknowledged the within letter of attorney to be his act and deed.
In testimony whereof, I have hereunto set my name, and affixed my
seal notarial, the day and year last mentioned. [L. s.]
R. JOHNS, Notary.
Compromise proposed by Amos Binney to the Chesapeake and Ohio Canal Company, 20 January, 1829.
GEORGETOWN, 20 January, 1829. To the President and Directors of the Chesapeake and Ohio Canal
Company, Washington: GENTLEMEN: Under the authority vested in me, by virtue of the accompanying Power of Attorney from Col. Amos Binney, of Boston, touching his rights in and to certain lands and water privileges at and adjoining the Little Falls of Potomac river, I submit, for your consideration, the following proposals:
ist. To enter into an agreement for the disposal of the surplus water, as proposed by the President of the Potomac Company, in 1817, as per the accompanying paper, marked C; restricting the disposal of the surplus water to the line of the canal from the old locks upwards.
2d. To submit to the arbitrament of four disinterested men, two to be chosen by each party, to say upon what terms you shall let me into the free and uninterrupted use of the surplus water, as secured to me by act of the Legislature of Maryland, at their November session of 1784, incorporating