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.

A pretty good statement from a recognized business man. You can not say it is sentiment. The other day we were alleged to be suffering from neurasthenia. I hope not; but the sentiment of the people as it has come to us, as it came to us in 1906 when we first took up this matter, and as it has been renewed, caused us to lead in the effort to get the Burton bill renewed.

Mr. FLOOD. Is it a fact that they are using 34,000 feet?

Mr. WATROUS. He says 34,000; I should think it would be 26,000. He may have stretched that a little. Whatever they are using it has been sufficient to do more or less damage to the Falls.

Mr. FLOOD. Less than half what they proposed to use?

Mr. WATROUS (reading):

I am forced to state that existing diversions have already seriously interfered with and injured the scenic grandeur of Niagara Falls at the Horseshoe, and that this injury and interference will probably be soon emphasized by the effects due to the prevalence of lower stages on Lake Erie and the upper lakes. The CHAIRMAN. Who made that report?

Mr. WATROUS. The Chief of the Army Engineers.

The CHAIRMAN. What is his name?

Mr. WATROUS. I am not sure. I think at that time the Chief of Engineers was Gen. Marshall. It was that statement that led us to make such an urgent appeal for the renewal of the terms of the Burton bill a year ago, and last June and last August. That is the statement of an expert. I believe in the service of experts. Understand, we are carrying on a wide range of good work, we think. We are urging cities to do comprehensive city planning; we are proposing a bureau for our national parks, and we believe in the service of experts. In the handling of Niagara Falls we believe in experts, and believe we have those experts in our regular department of the Army.

If you want someone to whom you could put more detailed questions, I ask you to await the appearance of Mr. McFarland, who is in a position to answer those more adequately than I can hope to. I know and you know, gentlemen, because you have had expressions from them, that the sentiment of the people at large is growing more and more in favor of recognizing the value of these scenic wonders and particularly of Niagara Falls.

There are other ways of getting power that I can cite you if you do not know of them already. There is the wonderful power development going on in North Carolina where they are developing power from small mountain streams without working any great injury to any number of people from the scenic standpoint. Do not think that we are attacking all power propositions. We are not. We have been standing steadfastly for the preservation of Niagara Falls, notwithstanding the demands of these great companies who wish to make money from them. Only recently we were urged to lend a hand to the preservation of certain falls down in Georgia. It did not seem to us that it was a national undertaking of sufficient importance to enlist our attention. We have realized that Niagara

is the one great thing. You do not need to be told by me that the people of foreign countries know only of Niagara Falls when they think of scenic wonders in the United States.

The CHAIRMAN. Did your civic association oppose the ratification of the treaty when it was under consideration?

Mr. WATROUS. We were in consultation-I was not; it was not my good fortune to be secretary at that time-with the Secretary of State and with the ambassador. We were called upon for our views, and we were given to understand that the treaty would very fully recognize the demands of the people for the preservation of the beautiful. I am going to tell you frankly that I am not well satisfied with the treaty. I do not think the treaty comes up to the demands at all.

Mr. CHAIRMAN. It is the supreme law of the land, is it not?
Mr. WATROUS. I believe that it is.

The CHAIRMAN. We ought to carry out the treaty.

Mr. WATROUS. We can do it. There is nothing mandatory about the water that may be taken from the American side. It says there may be a diversion of 20,000 cubic feet a second, and Congress certainly has the power to decide how much of that may be used.

Mr. FLOOD. That is a right that is given to American citizens which we need or need not exercise as we choose, as we see fit.

The CHAIRMAN. You are firmly of the opinion that the diversion of the water is injuring the Falls?

Mr. WATROUS. Yes, sir; I am firmly convinced of that.

Mr. COOPER. New York is preserving the Palisades, is it not simply as a matter of scenic beauty?

Mr. WATROUS. Yes, sir.

Mr. COOPER. They were blasting them down to secure stone for paving purposes.

Mr. FLOOD. Do you think the diversion of 26,000 feet of water has already injured the scenic beauty of the Falls? I understand that at this time they are diverting 26,000 cubic feet a second; 15,000 or more on this side and 11,000 on the Canadian side. Do you think that has already injured the scenic beauty of the Falls?

Mr. WATROUS. I do; yes, sir.

Mr. FLOOD. Then to divert 56,000

Mr. WATROUS. Would be, I think, very, very injurious. I think there is only one way to stop it on the Canadian side. We can not tell them what they can do, but we can say that there shall be a limit on the importation.

Mr. FLOOD. They raised the vested rights question six years ago, did they?

Mr. WATROUS. The question as propounded by Mr. Brown as to the vested rights of the companies was very, very thoroughly considered, I am told, by the waterways commission and the others who drew up the Burton bill, and it has always seemed to us that if the companies, believing they had such a vested right, were so thor-, oughly convinced of it they ought to have put it to the test right then and there. They might have saved themselves a great deal of money-surely much peace of mind and relief from the attacks on them. Now, for their peace of mind, why don't they put it to the test?

Mr. BROWN. Those rights were recognized not only by the Burton law but by the treaty.

Mr. WATROUS. It should be borne in mind, Mr. Chairman, that when the Burton bill was drawn it was recognized that there were existing power companies that had put up large amounts of money for their plants, and it was for that reason that we mentioned in the Burton bill who was to receive the permits. I am going to read a paragraph written by our president.

Mr. FLOOD. What is the extent of the life of a power company? Mr. WATROUS. It is a perpetual charter, as far as the companies are concerned. The life of the treaty was to be five years.

Mr. SCOVELL. The law of the State of New York provides for corporate existence by allowing certain certificates whether you are chartered by act of the legislature or incorporated under State law.

Mr. WATROUS. I am not prepared, Mr. Chairman, to speak very definitely of the New York phase of this proposition. It does occur to me, though, that as between the States and the Nation we have the old-fashioned idea that when the Federal Government is back of a proposition it is back of it a little stronger than when it is backed by a State. I presume now that I am getting off onto questions of law that I have not a right to talk on. You know. how our State policies change. They are likely to be changed very often. I do not see any particular reason why Congress should give up that jurisdiction. You would have the question of jurisdiction always before you.

Mr. BROWN. Mr. Watrous, on what do you base this right of Federal control to protect scenic beauty?

Mr. WATROUS. They have got the right up there; it is a navi

gable stream, and it is a boundary line.

Let me read this extract from the decision which is cited in that Colorado case:

We say that the creation of a summer resort is a beneficial use. Is it no benefit to the public to spend money in making a beautiful place in nature visible and enjoyable? Is it not in line with public health, rest, and recreation? If a person takes a stream and, after putting in waterfalls, ponds, bridges, walls, shrubbery, and blue-grass sod, works it into a beautiful home, that is a beneficial use. It is a benefit to the weary, ailing, and feeble that they can have the wild beauties of nature placed at their convenient disposal. Is a piece of canvas valuable only for a tent fly, but worthless as a painting? Is a block of stone beneficially used when put into the walls of a dam and not beneficially used when carved into a piece of statuary? Is the test dollars, or has beauty of scenery, rest, recreation, health, enjoyment something to do with it? Is there no beneficial use except that which is purely commercial?

It would seem that parks and playgrounds and blue grass are benefits and their uses beneficial although there is no profit derived from them; if not, then the contention of the defendant corporation must be maintained that nothing but money-making schemes are beneficial. The world delights in scenic beauty, but must scenic beauty disappear because it has no appraised cash value? If this defendant corporation takes the water out of Cascade Canyon, it can take the water out of the Seven Falls and Cheyenne Canyon, and Glen Eyrie, and the beautiful parks, and homes and summer resorts of the State. We feel compelled to say that there are beneficial uses of the fall of water than the mere production of commodities in competition with others now existing. When the defendant company says the complainants are putting the fall of the water to no beneficial use, it means that the complainants are not ruining the beautiful scenery for cash.

Mr. BROWN. Did you bear in mind when you cited the Colorado decision that in Colorado there is no law of riparian rights? There

are no riparian rights in Colorado; but there is in New York and every State east of the Mississippi.

Mr. WATROUS. Those are matters which the States regulate for themselves.

Mr. BROWN. You are right. Each State regulates for itself, and that is why in Colorado there is no riparian-rights law and in New York there is.

Mr. WATROUS. Colorado changed the situation at one time

Mr. BROWN. Colorado did not change it. The law of appropriation grew up from the custom which prevailed upon the lands before ever the State was organized. That custon evolved into a law, and that local law was against riparian rights and in favor of appropriation, and as such local law is recognized by the Federal courts. This case you cite is purely one as to rights by prior appropriation. It has nothing to do with riparian rights.

(Thereupon at 5.30 o'clock p. m. the committee adjourned until tomorrow at 2 o'clock p. m.)

COMMITTEE ON FOREIGN AFFAIRS,
HOUSE OF REPRESENTATIVES,

January 20, 1912.

The committee met at 2 o'clock p. m. Hon. William Sulzer (chair

man) presiding.

The CHAIRMAN. The committee will be in order.

STATEMENT OF MR. J. WINTHROP SPENCER IN THE MATTER OF THE PRESERVATION OF NIAGARA FALLS.

The CHAIRMAN. Mr. Spencer desires to be heard. You may proceed, Mr. Spencer.

Mr. SPENCER. I represent those people who are anxious to know the facts and their direct measurements in favor of the preservation of Niagara Falls. I speak from personal observation on account of having made the investigations myself. In order to save time, I would ask permission of the chairman to read this paper, and as there are a number of figures in this it will be less difficult for the reporter if I hand a copy to the chairman, together with several photographs which ave been taken of the Falls.

The rate of the recession of the Falls, obtained from measurements made by Prof. James Hall in 1842, and my own in 1905, was found to average 4.2 feet per annum for the whole width of the gorge. Mine was the fifth survey. While this figure is the mean rate, there are years of no appreciable retreat, during which the soft underlying rocks are being eaten away; subsequently the hard upper rocks collapse. In 1678 Hennepin showed a cross fall the position of which we have been able to locate. Thus we know the approximate rate for 227 years at an average of 4 feet per annum.

I succeeded in making soundings under the Falls themselves. The depth to the fallen blocks is 72 feet. Here the lower beds are all soft. The rapids above the Falls descend 55 feet. On account of the thickening of the upper hard rocks and the downward slope of the lower rocks the rate of recession is diminishing to an average of 23 feet per year.

You have been told by many gentlemen that the diversion has produced no effect upon the Falls. I have no doubt that they have been honest in their belief, particularly as temporary conditions favored such. A man usually does not see himself growing old until suddenly awakened to the fact, but these gentlemen offer no grounds for their beliefs, nor were they likely to be in a position to give reliable opinions.

The reason for these statements is based upon the fact that between 1903 and 1910 high water prevailed, thus more or less obscuring the effect of diversion. Thus during the five years, 1906–1910, there was a discharge of more than 200,000 gross horsepower per second than during the 15 preceding years. The mean stage of water during 1911 was low and the discharge fell to more than 264,000 gross horsepower below the average between 1891 and 1905, or if we take the average of the month of January, 1911, the diminution was more than 500,000 gross horsepower. Every foot of water from above the upper rapids represents 24 gross horsepower. It is a question, then, how much of this can be used or wasted.

Another fundamental point has not been shown to you. According to the Bruckner law, the cycle of wet and dry years is about 36 years. Niagara appears to have two subcycles. A period of low water ended in 1835; high water prevailed until 1845; low water until 1856; high water until 1864; low water until 1875; high water until 1887; low water until 1902, inclusive; since then high water until 1911. During these periods there has been an occasional abnormal year. Nineteen hundred and eleven may have been such, perhaps due to excessive evaporation, as prevailing low water does not seem to be due for some two years more. But 1911 may be the beginning of a low-water period; then the fallacy of the claim of no effect upon the Falls will be seen. The mean discharge of the river from 1906 to 1910 was 211,000 feet per second; the mean discharge for the 15 preceding years was 204,000 feet per second, and for weeks together it may fall as low as 160,000 feet per second.

The Horseshoe Falls was formerly 2,900 feet in length. On account of the lowering of the water, the Canadians have cut off 415 feet from that end by the construction of the retaining wall. The Chief of Engineers told you that for the lowering by 4 inches on the New York side the equivalent amount on the Canadian side is 9 inches, but many people have forgotten this.

With the full use of the water, as under the treaty, the level will be lowered on the Goat Island side by more than 10 inches, and on the Canadian 23 inches. This includes the diversion by the Chicago Canal. The depth of water for 800 feet adjacent to Goat Island, excepting fissures, varies from less than 6 inches to a foot at the mean stage of the 15 years mentioned. I have often seen it so low that you could walk out on the New York side with perfect safety. With such diversion, as is in sight, the International Boundary Line would be out of water and the remaining portion of the Horseshoe Falls would be entirely within the Canadian domain. Plate 23 of the Engineer's Report shows you how low the water is. For three or four months during 1911 the water was as low, or lower than shown in this plate.

This picture [showing first picture] was taken in 1900. Where these Falls in the picture formerly existed it is now simply black