New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1896-03-16
WOULD DESTROY NIAGARA.
AN INDUSTRIAL SCHEME THREATENS THE
BEAUTIFUL FALLS.

| SENATOR EIIswoRTHs BILL TO REMOVE THE
RESERVATION COMMISSION. AND ASSEM-
BLYMAN DUDLEY's MEAsURE-THE
ATToRNEy-GENERAL DECLARES
THE PROJECT UNLAWFUL.
trRoM THE REGULAR CORRESPONDENT OF THE TRrBuNE]
Albany. March Ex-senator Ellsworth's bill
legislatng out OF office the Commissioners Of
the State Reservation at Niagara Falls must
not be considered solely grab for the spoils OF
| office. There Is a far more important purpose
wrapped up In the measure. 1t Is the removal
from office Of State Commission that Is re-
sistng any further diversion of the water or
the Niagara River above the great cataract 10
the Use Of eectrc-power development COM
panies. Senator Ellsworth's bill must be read
| In connection with one presented February 2S by
Assemblyman Dudley Of Niagara County
! which authorizes the Niagara Falls Hydraulic
Power and Manufacturing Company to abstract
| from the Niagara River sufficient water to de-
velop 100000 horse power. The Niagara Falls
Reservation Commission is fighting this bill.
and hence the attack upon the Commission
THE POWER COMPANY'S PURPOSE.
| The Niagara Falls Hydraulic Power and
Manufacturing Company few years ago bought
an old canal which stretched through the city OF
| Niagara Falls from the Niagara River. at Port
| Day, above the great falls. to a place about
half mile below the falls This canal the
Niagara Falls Hydraulic Power and Manufac-
turing Company recently wdened to 200 feet
and deepened and now proposes TO use in de-
veoping 100000 HORSEPOWER.
| The Niagara Reservation Commission OPP
posed this development Of electric power by this
means fearing thar the diversion OF water from
| IN t,a n
Unity Of the cataract The Commissioners also
solicited from Attorney General Hancock an
opinion as to the legal authority Of the Niagara
Falls Hydraulic Power and Manufacturing Com
pany to develop 100000 horse power under It's
old charter under its new charter.
ATTORNEY STRONG OPINION.
Mr.. Hancock. In a strong opinion made public
on November l6 1895. declares that the company
named has no such authority. His opinion Is
worth quoting.
Chapter s3s. Laws 1889 that the object OF
creation OF the C4mms,9n nj , was TO preserve me
the condemnation Of Lands to be selected by the Com
mission and for the compensation to be paid TO the
owners Of the property rondcmned In carrying out
the provisions OF the law several million dollars have
be converted into mere waste OF public moneys II
The fow Of water over these falls IS to be seriously
While this ls Of course, very serious consldera-
ton have not permitted myself to lose sight OF the
mnnenance Of tho cnnsi for tBer power e0 Which
action on the part Of the State will have. II Is a
grave duty 10 he compelled 10 pass upon public
questions wherein sHch grea, private Interests are
way TO escape. and while, from certain considera
+ ions. | would be- pleased 10 arrive al n dlneren,
conclusion. am compelled to hold. from my ex-
Niagara Fails Tydraulic Power and Manufacturing
/ Company may be restrained from Increasing the
capacity Of the canal II s only fair. however. that
! nY reasons for this conclusion should be stated
/ Ikvy as follows:
TIE RIVER BED STATE PROPERTY
The Niagara River public. navgabe stream.
10 the bed OF which ani the waters flowing over It
the State and no, the riparian owner has title. It
would DE waste OF time TO attempt to show why
this proposition Is correct II is sufficient to say
that 1t has been amply supported by judicial de-
clsions and Is now the established law. The sole
question. therefore. FOR determination Is: Can an
owner Of the soil adjoining naviglblc stream diver.
the water for private manufacturing purposes with
out the consent of the State? The river
being navigable in rs legal sense. the title to the
bed OF the stream and to the water flowing over II
IS in the state NJ least 20 the boundary line between
ihe state and Canada. Iherefore leaving ont OF
20 the Hydraulic Power and Manufacturing Com
e eoPcra,on Of all use Of he waters o the rver @ for
power purposes BY devo,ng the stream to other
public use. (smith VS. Rochester, %, y "
| Whether or no, that has been done by the laws
establishing the Niagara Reservation. | will dis-
r ' pr hc T h S Of R0m m 90 ownsr Goss Of f
adjoining navigabe stream to divert considerable
portion OF the waters for manufacturing purposes.
/ without a grant or prescription right
A NUISANCE THAT CAN BE ABATED
Nuisances may always be aba,ed by action in the
name Of the aggrleved party. Public nuisances In
c'ude any cncroachment upon highways or navig-
able streams AM 1t Is not an essential Characteristic
| of the enrroachment upon the stream that 1t should
| be an actual hindrancc to navigation. The diver
| sion OF water from public stream for any other
than domestic purposes is "A nuisance. and therefore
| phladelphla VS. Gelmartin. II Penn St iiO) The
| Niagara Falls Hydraulic Power and Manufacturing
Company Is organized under the Act Of 1876 Chapter
Gil. Its objects declared to be the development
OF the hydraulic canal In Niagara Falls and the
facturing Interests Under It's charter It is not only
| supplying ts mills but is furnishing other In
The latter TACT is concerned. certainly no question
be raised to the rights OF riparian owner to
the use Of water for his own benefit.
MERCENARY PROPOSITION
7 assume the capacity CT the canal at the outset
sufficient for all the purposes OF the Power
| Company and that the increased capacity is de-
sired for the purpose OF enabling the corporation to
derive a revenue from the sale OF Its power others
have no hesitation in declaring this TO be unlaw
ful A non riparian owner Is not entitled to any
benefits OF stream other than those enjoyed In COM
mon by the public. and riparian owner at the most
Is entitled only to personal benefits derivable from
not Include the transmission OF power to property
| located upon premises maybe far removed from the
'I it is i hsicrcai ss that the Niagara River a, Port Day
has been navgated by vessels OF large burden. and
| indeed 10 "A point some distance below. The erec-
tlon OF a crib to divert Ice and other refuse from
the canal inlet In therefore an actual obstruction to
| navigation, and II Is not necessary to show present
| use OF the river at this point for navigation pur-
! poses. once "A highway always highway. Is true
| OF navigable streams.
NO AUTHORITY TO DIVERT THE WATERS
| have been unable to find any language in the
| grant to the Niagara Falls Hydraulic Power and
Manufacturing Company which be construed as
authorizing them divert the waters of the Niagara
| River
| IL now remains to determine whether or not the
| waters Of the Niagara River have been devoted by
| the Legislature to pubic use TO an extent that
| Will prevent the diversion OF the water above the
poses OF the statutes creating the Niagara Reserva-