water is the successful application thereof to the beneficial use designed, and the method of diverting or carrying the same or making such application is immaterial.'" (Thomas v. Guiraud, 6 Colo., 530.) See also Fort Morgan L. & C. Co. v. South Platter Ditch Co., 16 Colo., 1, 5. "The right to use the water is the essence of appropriation. The means by which it is done are incidental." See also McCall v. Porter (70 Pac. (9re.), 820, 822). It therefore appears that the waters of Cascade Creek, which the defendant threatens to impound and carry away in pipes, has already been appropriated by the complainant, the Cascade Town Co., for beneficial uses, and that it has a vested property right therein which the defendant's contemplated acts, if executed, will destroy. The complainant company may have a decree as prayed, with costs. The bill of complainant, Bigger, will be dismissed, with costs to the defendant against him. PUEBLO, COLO. District Judge. [Telegram.] FEBRUARY 17, 1911. We respectfully urge that you use every effort to secure the adoption of Senate joint resolution 143 extending the Burton Act for the preservation of Niagara River. The Burton Act was carefully framed to recognize and protect every interest then existing to the full extent of all development then projected. To maintain the status can inflict no possible harm upon existing enterprises. To change it as proposed by the Alexander bill, will quickly produce maximum Canadian development by permitting the full utilization in the United States of the power generated in Canada against the spirit of the treaty and to the great detriment of Niagara Falls. We earnestly urge that no further hearings be granted but that the resolution be at once pressed for passage. Public sentiment throughout the entire country has hitherto been overwhelmingly expressed to Congress in support of the Burton Act. THE MERCHANTS' ASSOCIATION OF NEW YORK. Mr. RICHARD B. WATROUS, THE J. L. HUDSON CO., Secretary American Civic Association, Washington, D. C. MY DEAR MR. WATROUS: I have yours 5th and have written to each member of the Senate Committee on Foreign Relations except Mr. Burton, as follows: "I am exceedingly interested in Niagara Falls. For 40 years I have been in the habit of going there. I have never seen anything that compares with the Falls in grandeur, and I have been utterly opposed to diverting the waters from their natural course. "I think we made a mistake in giving the power companies any rights there at all. They now use 34,000 cubic feet per second and want 56,000. I feel very earnestly that their request should be denied. The enormous amount of water that went over the Falls before any of it was diverted was none too much, and now in many places the decrease is noticeable. "I hope your committee will report the Burton bill out favorably, and that the Senate will approve of the committee's findings. I think the financial advantage of any man or any set of men should not be considered at all in connection with such a world wonder as Niagara Falls is. "I hope you think as I do about it, and that you will support the Burton bill.” To Mr. Burton I have written: "I am very much interested in Niagara Falls and have written to each member of the Senate Committee on Foreign Relations as follows: Can I do anything further to help you in this matter?'" With kind regards, I am, Yours, very truly, J. L. HUDSON. ERIE AND ONTARIO SANITARY CANAL COMPANY-PROPOSED BILL FOR CONGRESS. A BILL To give effect to the treaty between the United States and Great Britain. Whereas it is stipulated in Article V of a treaty between the United States and Great Britain, signed January eleventh, nineteen hundred and nine, commonly known as the waterways treaty, that the United States may authorize and permit the diversion within the State of New York of the waters of the Niagara River above the Falls for power purposes, not exceeding in the aggregate a daily diversion at the rate of twenty thousand cubic feet per second, provided the level of Lake Erie and the flow of the Niagara River shall not be appreciably lowered; and Whereas the prohibitions of Article V do not apply to the diversion of water for sanitary and domestic purposes, and for the service of canals for the purpose of navigation; and Whereas it is stipulated in Article IV of said treaty that the boundary waters shall not be polluted on either side, to the injury of health or property on the other; and Whereas the cities bordering upon the Niagara River and situate in the district contiguous thereto are subjected to epidemics of typhoid fever caused by the polluted water taken from Niagara River, and considerations of public health demand the abatement of these dangers without delay; and Whereas the Erie and Ontario Sanitary Canal Company has been organized under the laws of the State of New York to construct, without State or Federal aid, a canal between Lake Erie and Lake Ontario, beginning at a point at or near Smokes Creek, south of the city of Buffalo on Lake Erie, and thence to the mouth of Eighteen Mile Creek on Lake Ontario, a distance of fifty miles, more or less; and Whereas it is hereinafter provided that said canal shall be used free of cost by the cities of Lackawanna, Buffalo, Tonawanda, North Tonawanda, Niagara Falls, Lockport, and all other municipalities and communities situate upon the Niagara frontier, to carry off all the sewage and the sewage-polluted storm waters now flowing from said towns, cities, and municipalities into Lake Erie and the Niagara River, polluting the water thereof, to the great injury to the health of the persons living along the said Niagara frontier; and Whereas the said canal will be of sufficient depth and width to enable boats, barges, and other water craft of large tonnage to navigate the same from its beginning on Lake Erie to a point intercepting the Erie Canal at or near the city of Lockport, in the State of New York, thereby increasing the efficiency and the value to the public of said Erie Canal; and Whereas the level of Lake Erie will not be lowered by the building of said canal so as to interfere with or affect its navigability; and the waters flowing within the Niagara River, now under the control of the War Department, shall not be diverted so as to affect the beauty and grandeur of the volume thereof flowing over Niagara Falls: Therefore, to carry out conservation of health and power, Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled That the Erie and Ontario Sanitary Canal Company, a corporation organized under the laws of the State of New York, be, and the same is hereby, authorized to take six thousand cubic feet of water per second from Lake Erie and Niagara River for sanitary purposes and canal navigation and power, four thousand four hundred cubic feet thereof being the remaining part unused of the twenty thousand cubic feet allowed for power on the American side under said treaty, and one thousand six hundred cubic feet thereof being an allowance under said treaty especially for sanitation and navigation, which volume of water shall be taken through three channels, designated as Buffalo River, Smokes Creek, and Black Rock Harbor. SEC. 2. That the company within two years after the passage of this act shall begin the construction of the aforesaid canal without seeking from State or Nation other aid than that afforded by such cooperation as may properly be effected between Federal and State authorities; and the said company shall thereafter with due diligence prosecute the work to completion. SEC. 3. That in consideration of the aforesaid grant said company shall give to the cities of Lackawanna, Buffalo, Tonawanda, North Tonawanda, Niagara Falls, Lockport, and all other municipalities, public and private corporations, and individuals situate or living in what is known as the Niagara frontier the free use and perpetual right to use the said canal for sewage-disposal purposes, and for the carrying off of flood waters caused by storms. SEC. 4. That in consideration of the facilities which it will afford to the communities, municipalities, corporations, and individuals enumerated in section three of this act the company shall have and forever enjoy the right to and possession of all the water power which it is possible to develop from the volume of water which this act permits it to withdraw from Lake Erie and cause to flow through its proposed channels into Lake Ontario. SEC. 5. That the company shall have the right, when Buffalo River shall have been sufficiently deepened and enlarged to a junction with the proposed canal, to make a proper connection of said river with said canal, and thereafter cause the waters of Lake Erie to flow through said Buffalo River into the said canal. And further, that the said company may make such changes and improvements in Smokes Creek, Ellicott Creek, and other streams in Erie and Niagara Counties as will permit water to enter the said streams from Lake Erie, and through them into the canal of the said company, and through the same into Lake Ontario. And further, that the said company may build and maintain at the mouths of Smokes Creek and Eighteen Mile Creek such protecting piers and docks as may be necessary to carry out the purposes and operations of the company; all of which construction affecting navigation shall be done under the direction of the War Department. SEC. 6. That the provisions of this law shall cease to be operative should it be judicially determined that said company has entered any conspiracy or unlawful combination or monopoly in restraint of trade. SEC. 7. That the Secretary of War shall continue the present permits for the diversion of fifteen thousand six hundred cubic feet per second. By Delegate F. M. Hallett: NIAGARA FALLS, N. Y., January 18, 1912. Whereas the Committee on Foreign Affairs of the House of Representatives is at this time considering legislation on Niagara River diversion for power development; and Whereas there is now no competition among the Niagara River power companies, with the result that exorbitant prices are charged for electric current for power and lighting purposes in this city: Therefore be it Resolved, That the delegates in the Trades and Labor Council of Niagara Falls, N. Y., assembled, respectfully urge that the committee forward legislation extending the limit of Niagara River diversion from 15,600 cubic feet per second to 20,000 cubic feet per second; and That the Committee on Foreign Affairs make provision in the pending bill to grant to the city of Niagara Falls the right to apply for a permit to divert water from the Niagara River for power purposes, so as to permit the creation of a municipal electric lighting and power plant; and be it further Resolved, That a copy of this resolution be forwarded to Representative William Sulzer, of New York, chairman of the Committee on Foreign Affairs; to Representative James S. Simmons, of Niagara Falls, N. Y.; and to Representative Charles Bennett Smith, of Buffalo, N. Y., asking their efforts to forward such legislation. Hon. HENRY LEWIS STIMSON, Jos. P. HUNTER, President. THE TORONTO POWER Co. (LTD.), Secretary of War, Washington, D. C. DEAR SIR: Re "An act for the control of the waters of Niagara River, for the preservation of Niagara Falls, and for other purposes," and license of the Niagara Falls Electrical Transmission Co. We understand that in the recent hearing in regard to the licenses for importing power to the United States from Canada under what is known as the Burton Act, which licenses are expiring March 1, 1912, that the statement was made that the 46,000 horsepower allowed the Niagara Falls Electrical Transmission Co. for importation under the terms of the act was not being used, and was consequently not available for United States demand for power. If you will be good enough to grant us the favor of an interview, we will be glad to go to Washington any time convenient to your honorable self to refute this statement. Letter dated Toronto, Ontario, January 20, from Robert J. Fleming, general manager the Toronto Power Co. (Ltd.), re use of power allowed the Niagara Falls Electrical Transmission Co. The Secretary of War wishes a report from you on this matter. W. R. PEDIGO, Private Secretary. The CHIEF OF ENGINEERS. [Second indorsement.] WAR DEPARTMENT, OFFICE OF THE CHIEF OF ENGINEERS, 1. Respectfully returned to the Secretary of War. 2. It is believed that the hearing referred to within is the one which has been in progress before the Committee on Foreign Affairs of the House of Representatives since the 16th instant, with reference to the diversion of water at Niagara Falls and the importation of electrical power from Canada, and which, it has been announced, will be resumed at 10 o'clock on the morning of the 26th instant. Representatives of different power and transmission companies have been present at the various sessions, and free expression of their views has been invited. 3. It is recommended that Mr. Fleming be informed accordingly by telegraph and that this letter be referred to Hon. William Sulzer, chairman of the House Committee on Foreign Affairs, with a statement of the action taken by the Secretary of War. [Third indorsement.] EWD. BURR, Acting Chief of Engineers. WAR DEPARTMENT, January 24, 1912. Respectfully referred to Hon. William Sulzer, chairman Committee on Foreign Affairs, House of Representatives, Mr. Fleming having been advised in accordance with the recommendation of the Acting Chief of Engineers, United States Army--copy of telegram herewith. By order of the Secretary of War: The SECRETARY OF WAR. JOHN C. SCOFIELD, Assistant and Chief Clerk. WASHINGTON, D. C., February 3, 1912. DEAR SIR: Representing the Erie & Ontario Sanitary Canal Co., I offer to pay one-sixth of the cost of diffusing the waters above the Horseshoe Falls, according to plans of Isham Randolph, explained heretofore to President Taft and the engineers of the Canadian Government, provided the grant asked for by the company of 6,000 cubic feet per second is made under the terms of the treaty between the United States and Great Britain signed January 11, 1909. Maj. Keller has recommended, in Senate Document No. 105, page 15, that similar diffusion works be paid for by the power companies, and it is to carry out the spirit of that recommendation that I make this statement. Yours, truly, ERIE & ONTARIO SANITARY CANAL Co., By MILLARD F. BOWEN, President. LA SALLE, N. Y., January 4, 1912. Hon. Wм. SULZER, M. C., Washington, D. C. DEAR SIR: Since the inclosed letter was written the Burton Act has been extended to March 31, 1912, thus making it doubly certain that the next session of Congress will be called upon for some solution of this great problem. In the preparation of the accompanying letter I have made use of the reports of United States engineers, the published records of hearings before the Committees on Rivers and Harbors at Washington, and my own personal knowledge of the power situation on the Niagara frontier. I have no financial interest in or connection with any existing or prospective power company, and only desire that, with just and proper regard for vested interests of great value that can not be ignored, such legislation may now be had as will most surely promote the public welfare. It certainly is true that the conservation and proper utilization of the nation's water power takes rank in importance with the great reclamation prospects of the West in which the Government is now wisely engaged. If in your estimation I can be of any further use in connection with the Niagara situation, I shall be glad to be considered at your service. Very respectfully, yours, JOHN W. WILLIAMS. Hon. WILLIAM SULZER, Washington, D. C. 730 ELLICOTT SQUARE, January 9, 1912. DEAR SIR: I hear that the State conservation commissioners are to be heard before your committee next Tuesday; is that a fact? Now that the international joint commission is organized, I wish that the whole subject of the Niagara River waters could be referred to that commission; I talked with Chairman Tawney last Sunday here about it, and he was not sure of their jurisdiction; but if all agree upon a reference and join in the hearing there is no doubt of jurisdiction. As soon as rules of procedure are adopted hearings will be held, and I hope that we can get to work without delay. Yours, very truly, Hon. WILLIAM SULZER, MILLARD F. BOWEN. WERTHEIMER & DUFFY, 302-304 Broadway, New York, February 6, 1912. Chairman Foreign Relations Committee, Washington, D. C. MY DEAR SIR: As a citizen interested in the event, I write to bespeak your active and favorable interest in behalf of the bill which is now before your committee affecting the amount of the water which may be diverted at Niagara Falls for the purposes of power. My understanding is that this bill is intended to make effective the conditions of the recent treaty between the United States and Great Britain, and it is highly desirable that the present anomalous condition shall not be permitted to continue, but that the State of New York shall have the right to its just proportion of water, which means increased manufacturing facilities and the further development of the industries of our State. It is needless to suggest that your committee will properly protect the national interests and by proper provision secure the supervision of the War Department as to the due and proper exercise of the rights which the bill would confer. The writer trusts that your committee will promptly report the bill out, and feels that your record for disinterested public service will be enhanced by the vigorous championship of this fair and reasonable measure. Very truly, yours, JAS. KING DUFFY. CLIFFORD B. HARMON & Co. (INC.), Hon. WILLIAM SULZER, Chairman Committee on Foreign Relations, Washington, D. C. DEAR SIR: I understand that your committee is preparing to report out a bill determining the amount of water which may be diverted from Niagara River above the Falls for power purposes, thus making effective the recent |