Imatges de pàgina

ictive or exemplary damages. In the particular case supposed, the quanim of damages would mainly depend upon the question, which of the pares could put the other in the wrong. If the jury could be satisfied that le plaintiffs had arbitrarily rejected fair and reasonable terms of agreement, nd that the defendant had merely pursued an irregular mode of coming at hat was substantially his right, the damagas would, in all probability, be erely nominal. Question 7. Answer. I consider the affirmative of this question as quite ear. Question $. Answer. The affirmative of this question is equally clear the last. The first enacting clause of the 18th section, which prohibits e application of the water conveyed through the canal to any purpose but vigation, without the consent of those persons owning the land through nich the canal was to be led, has already been explained to intend nothing ore than to secure to those persons the exclusive use of the surplus water,

preference to the proprietors of detached and distant situatio:is, who ght, otherwise, have contracted with the Potomac Company to take the iter away from the proprietors of the immediately contiguous and adjaat lands. No construction could be more unreasonable or absurd, than to ppose the law intended to prohibit any arrangement with one proprietor, thout the concurrence of other independent proprietors, having no sort of crest, either joint or several, in the particular parcel of land to and through ich alone the water was to be conveyed, of proprietors whose number s indefinite, whose situations may be the most disconnected and remote m each other, and possessing in their relative positions to each other, and the canal, the greatest diversity of distinct and independent interests. In ation to those persons who own the lands through which the canal has in conducted, that clause of the 13th section which authorizes and directs

President and Directors to enter into reasonable agreements “ with the prietors of such situation,” must necessarily be constructed reddendo gula singulis; that is, severally and respectively, as concerns each proator. Upon that principle, cach and cvery proprietor of the particular ation to be improved would be competent to contract for himself; and he company might go on, from time to time, to contract, separately and cessively, with the various proprietors who might chance to own the Is along the whole line of the canal, extending, possibly, from the foot he Little Falls to the source of the Potomac. Question 9. Answer. The precise limits specified in the condemnation ne what portions of the lands of individuals shall be appropriated or subed, directly or indirectly, to the purposes of the canal. To discharge te water from the canal, upon the lands lying without those limits, (ext along the ancient channels of such streams as before flowed through the 1) is clearly a wrong, for which the proprietor may recover damages ac. ling to the degree of injury sustained; and the continuance or repetition which he may prevent by injunction from chancery. The present protors cannot recover damages for injuries done to the land before it came their hands. uestion 10. Answer. The proprictor might wave the tort, and accept water so thrown upon his land; and after the water had flowed through ain channels so long as to raise a reasonable presumption that they were nced to be the permanent issues and channels for the waste water, the orietor would be justified in proceeding, upon the strength of that presumption, to construct his water works, and would be protected in the i of such water. But his right would be secondary to that of the compas who would have a paramount title to the use of the water, whenever it b came necessary to the primary objects of the canal, and circumstuces shoul have rendered it incompatible with those objects to permit it any longer i flow in its accustomed channels. An arbitrary and unnecessary orstuctior of those channels, and a wanton diversion of the water to other suces, through which to discharge it, merely as waste water, would be clearly he admissible.

Question 11. Answer. If the entire abstraction of such strans from the point where they fall into the limits purchased or condemned in the site of the canal, be necessury to the proper and scientific construction enz canal, then it might be considered as one of the items of incidental de which the jury of inquest would be competent to compensate his that case, he would not be entitled to claim of the company so mue in specie. If, however, the entire abstraction of the water was ng tial (and I cannot conceive how it should be so in this instance) 10.1 struction of the canal or its incidental works, according to approved art, then it is clear the company have no right to debar the proprie the use of the water, but are bound to return it into its accustomed nels. Understanding, in this case, that an equal (or a greater) 95 waste water is now discharged from the canal, as that which former in the ancient channels of the intercepted streams, and that equally practicable to discharge it by such ancient channels as ui sluices made on purpose by the company, I consider that circu affording a practical demonstration of every fact and of every p. cessary to establish, beyond controversy, the right of the propri specific quantity of water which formerly flowed through his! channels, and his right of election either to take that water channels through which it now flows, or to compel the company into its ancient beds.

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WASHINGTON, November 28, 1816.

Extracts from the Charter to the Potomac Company Sec. il. And, whereas it is necessary for the making th locks, and other works, that a provision shall be made for conde tity of land for the purpose, Be it enacted, That it shall adu ful for the said President and Directors, or a majority of them the owners of any land through which the said canal is intend the purchase thereof; and in case of disagreement, or in case th shall be femme covert, under age, non compos, or out of the cation to any two justices of the county in which such land shau justices shall issue their warrant, under their hands, to the county, to summon a jury of twenty-four inhabitants of his co perty and reputation, not related to the parties, nor in any ma to meet on the land to be valued, at a day to be expressed not less than ten nor more than twenty days thereafter; and the receiving the said warrant, shall forthwith 'summon the said met, shall administer an oath or affirmation, to every jury appear, that he will faithfully, justly, and impartially, value

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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: Provided, 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 often as any such new damage shall happen, by application to, and a warant from, any two justices of the county where the lands lie, to have such 'urther damage valued by a jury in like manner, and to receive and recover he same of the said President and Directors; but nothing herein shall be taken ir construed to entitle the proprietors of any such land to recover compenation for any damages which inay happen to any mills, forges, or other vorks or improvements, which shall be begun or erected by such proprietor, fter such first valuation, unless the same damage is wilfully or maliciously one 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 najority of them, are hereby authorized to agree with the proprietor for the urchase of a quantity of land, not exceeding one acre, at or near such of le said places of receipt of tolls aforesaid, for the purpose of erecting ne:ssary buildings: and in case of disagreement, or any of the disabilities oresaid, or the proprietor being out of the State, then such land may be lued, condemned, and paiul for, as aforesaid, for the purpose aforesaid; d the said co ipany shall, upon payment of the valuation of the said land, seized theref, in fee simple, as aforesaid. Sec. 13. And, whereas some of the places through which it may be nessary to conduct the said canals may be convenient for erecting mills,

ges, or other water works, and the persons possessors of such situation ny design to improve the same, and it is the intention of this act not to erfere with private property, but for the purpose of improving and perting the said navigation, Be it enacted, That the water, or any part reof, conveyed through any canal or cut, made by the said company, ill not be used for any purpose but navigation, unless the consent of the jprietors of the land through which the same shall be led be first had; and

said President and Directors, or a majority of them, are hereby empow. . d and directed, if it can be conveniently done, to answer both the pures of navigation and water-works aforesaid, to enter into reasonable agree nts with the proprietors of such situation concerning the just proportion he expenses of making large canals or cuts, capable of carrying such ntities of water as may be sufficient for the purposes of navigation, and

for any such water-works, as aforesaid. By Sec. 17, the dimensions of the canal are prescribed, viz: “a cut or al, twenty-five feet wide, and four feet deep,” &c. TOTE. - Those dimensions have been modified by succeeding acts.

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Opinion of Wm. Pinkney, Esq. 29th October, 1819. I have read and considered the printed opinion of Walter Jones, Esy 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. shall in January, 1792, referred to in Mr. Jones's opinion, together a copy of the condemnation also there referred to, and have cartuligere ined the charter of the Potomac Company, a “ Statement of a ed in 1816 at Georgetown, and referred to in a note prefixed to printed opinion, and a plat of the land at the Little Falls of long furnished by Mr. Smith:

And I am of opinion

1st. That all the principles and conclusions contained in Mr. ion, are sound and correct.

2d That Congress will not, and with propriety cannot, grau sion of the canal beyond the point fixed upon by the charter of without the inducement of some adequate public purpose, and curing to Mr. Smith a just compensation for his rights and privu the existing charter.

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No. 370. Reported by the Committee on Roads and Canals. An act to amend the charter of the Chesapeake and Ohio

pany, and for other purposes. Be it enacted by the Senate and House of Representatives ed States of America in Congress assembled, That the pri act, which passed at the November session of the General As State of Maryland, and is entitled “ An act in favor of the Directors of the Potomac Company and the Commissioners Buildings, be taken and adjudged to be extended to the Pr rectors of the Chesapeake and Ohio Canal Company, and to contractors engaged on any part of the works of the said com the District of Columbia.

Sec. 2. And be it further enacted, That so much of to 66 An act authorizing a subscription to the stock of the Chesap, Canal Company,” as provides that not more than one-fifth par so subscribed shall be demanded in any one year after the the company, shall be, and the same is hereby, repealed, so a subscription by the United States on the same footing, in thi which that of all other stockholders of the said company 18 the charter thereof.

SEC. 3. And be it further enacted, That the Chesapeake Company shall have power to obtain, in the manner provi teenth section of the act of the General Assembly of Virgit nuary twenty-ninth, one thousand eight hundred and twens « An act incorporating the Chesapeake and Ohio Canal which, so far as respects the District of Columbia, the ass

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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 obtaili 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, sell, 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 bridge 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 is are provided by the thirteenth section of the aforesaid act of the General Assembly of Virginia.

A B.

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 preents 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

n 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 ind water-rights in and to certain property near and adjoining the locks ind 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 ttorney shall think proper; to memorialize the Congress of the United

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