AFTER RECESS.

The committee reconvened, pursuant to the taking of recess, at 2 o'clock p. m.

STATEMENT OF RICHARD B. WATROUS.

The CHAIRMAN. Mr. Watrous, you can proceed. Do you want to put that document in the record as part of your remarks?

Mr. WATROUS. Yes, sir. As part of the remarks of Mr. McFarland.

Mr. Chairman and gentlemen, by reason of the fact that we have had access to House Document No. 246, only after the closing of the hearing held on Tuesday last, we find it necessary to present to you, in summarized and easily understandable form, the exceedingly important information contained in that document, entitled "Preservation of Niagara Falls," which has a vital bearing on the legislation before you.

1. In this document there has been collected and presented for the first time, by the engineers of the lake survey, authoritative information to show exactly the conditions prevailing at Niagara Falls up to the comparatively recent date of June, 1911. On pages 15 and 16 of this Document 246 are given details as to power produced from Niagara water, on both sides of the international border.

It appears that the two power plants operated on the United States shore were producing in June, 1911, a total of 165,010 electrical horsepower, and that the three power plants operated on the Canadian shore were producing, at the same time, 133,000 horsepower. The aggregate represents a total production of 298,010 horsepower, from water abstracted from the glory of Niagara, as of June, 1911.

It further appears that while of this total there is produced on the Canadian side nearly 47 per cent, the use of Niagara-generated electric power in Canada is but 16.6 per cent of the total production.

That is, the three Canadian plants (two of them owned and operated by citizens of the United States) make nearly half of the total power taken from the glory of Niagara, but sell for use in Canada barely one-sixth of the total. In fact, it is probable that but one of the so-called Canadian plants-and that the smaller one-could operate upon the load furnished within the Province of Ontario. Thus the much-vaunted increase in Canadian manufactures, said to have been brought about by the availability of electric power, proved before your committee on Tuesday last to be obtained at barely half the price charged consumers in Buffalo for the same power, has amounted to but 49,500 electrical horsepower.

It is interesting in this connection to call your attention to the prospectus of the hydroelectric power commission of the Province of Ontario, which in its first report, published April 4, 1906, says, on page 7:

"They are satisfied that a market for at least 50,000 horsepower could be obtained within a reasonable radius of Niagara Falls as soon as transmission lines can be constructed, and this could be increased to at least 100,000 horsepower within five years thereafter."

The actual development, concerning which the Canadian company, most desirous of sending increased power into the United States, has given you alarming reports, has not proved equal by any means to the optomistic view had of it in 1906.

It is obvious that it is the practically unrestricted and completely doubled prices charged consumers in the United States that have made the American producers of power in Canada so anxious to have your committee aid in extending, at 100 per cent advance, the beneficient opportunity to further deplete the beauty and impressiveness of Niagara Falls, from which effort they are now restrained by the provisions of the Burton bill.

2. It is in point to call your attention to the fact that at the average prevailing efficiency-namely, 12 electrical horsepower per cubic foot of water taken from Niagara Falls-the combined treaty diversion would produce 672,000 horsepower. This is more than double the production as reported in House Document 246, which document, on page 13, again reiterates the conclusions of all the engineers who have impartially studied this problem, to the effect that

"The artificial diversions of the power companies have materially added to the injury or interference with the scenic grandeur of Niagara Falls. Additional diversions now contemplated will increase this damage."

The increase to the treaty permissions, which are in no sense obligatory, would mean the development of two and one-quarter times as much power at Niagara Falls as was being developed there in June, 1911, and it is not improper to assume that interference with the scenic integrity of Niagara Falls, which it was the plain and only purpose of article 5 of the Canadian treaty to preserve, would be in that proportion. Again we quote from page 12 of House Document 246:

"On the depth and volume of flow over the cataracts, and on the continuity of the crest lines depend largely the character of spectacle that it is

desired to preserve."

3. On page 16 of House Document 246 may be found significant data on the prevailing efficiency of the use of the water by all the power plants operating at Niagara Falls. Taken into account with the admittedly deficient operating heads now in use, the efficiency is given as but 63 per cent, or not two-thirds of the available power which might be obtained.

But on the basis of using the full 220-foot head which is said to be practicable, the total efficiency of all the plants is but 48 per cent, or less than half that suggested as possible.

As we had the honor to insist on Tuesday before your committee, the water of Niagara is precious water; it belongs to all the world and is of immeasurable value, both from the scenic, the patriotic, the financial, and the conservational points of view, to the people of the United States and Canada. Every foot abstracted from the productive and God-given glory of the Falls ought to be made to produce the utmost possible amount of power, and not the easiest possible amount.

So long as the companies producing power at Niagara Falls are found by impartial Government engineers to be operating under an efficiency of only 48 per cent, it is respectfully, but insistently, urged that they have absolutely no right to ask for further diversions, depletions, and injuries to this, our principal American scenic asset.

4. The specious character of the plea made for the free and unrestrained admission from Canada of power produced there, we have outlined to you. With the known fact that the three large companies operating in the United States and in Ontario draw from the upper pool, equally depleting the whole cataract, and that the two remaining companies draw directly and entirely from the much endangered Horseshoe Fall, which is as much American as Canadian, we are confident that no member of this committee will be found to assume that it is a matter of indifference as to what Canada may do-when the doing in Canada is by American citizens, and so overwhelmingly for possible American consumption.

The guilt of the Federal Government is as great in respect to the proceeding destruction of the glory of Niagara Falls for every horsepower admitted from Canada as for every horsepower developed in the United States.

It is further obvious that if proper restraint is had upon the importation of electrical power from Canada, it will be many years before the damage will become more serious. With loss of 50,000 horsepower in use now of the 432 000 horsepower it is expected to produce under the treaty diversion on the Canadian side, there will be time for sentiment to form in Canada, which will inevitably be formed and will prove as effective in demanding the scenic preservaton of the Falls as it has so far proved in the United States.

Gentlemen, if you so act as to hold down the spoliators of Niagara to the amounts which have been given them to protect their investments, with a fair profit to all enterprises going at the time the will of the people was manifested in the United States, you will be doing justice, and full justice, to every honest interest represented, and respecting as well the overwhelming desire of the American people to have, see, enjoy, and hold in reserve, no further damaged, the scenic glory of Niagara Falls. Respectfully submitted.

AMERICAN CIVIC ASSOCIATION,

By J. HORACE MCFARLAND, President.
RICHARD B. WATROUS, Secretary.

Mr. WATROUS. Following Tuesday morning, when we adjourned, I might say, Mr. Chairman, that this statement is a paper presented

upon the reading by Mr. McFarland of the latest report returned to the House-Document No. 246, which includes the figures of diversion up to the expiration of the present bill.

I would like to ask, Mr. Chairman, if you have any knowledge when the committee is going to have the benefit-when this is going to be delivered to you?

The CHAIRMAN. We expect to close the hearings to-day. Just so soon as the reporters can have the minutes transcribed they will be corrected by the various speakers and sent to the Public Printer.

Mr. WATROUS. You expect, of course, to use these documents?
The CHAIRMAN. Yes.

Mr. Cohn desires to be heard further.

Mr. Coun. The statement was made here that the companies at the present time are utilizing but 13,800 cubic feet of water. That statement was based upon a report of some officials of the War Department made in June, made as on June 11, in which it was stated that the Niagara Falls Power Co. was using 7,870 cubic feet of water per second, whereas it has a permit for 8,600 cubic feet; that the hydraulic company was using 3,350 feet per second, whereas they were allowed 6,500 feet, and the other company was using 400 feet per second. whereas it has a permit for 500 feet per second.

The suggestion was made, I think by Representative Cooper, that that might have been with the same purpose. That the full amount was not used as that other company could not under the existing law get any power beyond 16,600 cubic feet, although the law allowed the Secretary of War under certain conditions to grant permits in excess of those, either under the Burton bill. I wish to say there is no such purpose on the part of anyone that the use of the water is fluctuating, and that permits in excess of 16,600 cubic feet, the extent of the bill, they must, under the terms of that act, be granted to the existing companies. I just state that to answer any argument of that character.

I wish to say, in the second place, that our company, the hydraulic company, has at no time professed to waive its common-law riparian right, or the rights under its grant from the State of New York, but it accepts the permit from the Secretary of War because the whole subject of permits under the Burton bill was assumed to be a temporary affair.

The third statement I wish to make is in respect to one matter this morning, with reference to the water of the Niagara River, that was used for domestic purposes at the city of Niagara Falls.

The city of Niagara Falls is now installing and will have completed by June a suitable filtration plant so that the question of the water of the Niagara River used for domestic purposes does not enter into this affair in any way. I would like to have the chairman call upon the representatives of the War Department present to give the actual user in cubic feet per second of water for power purposes by the companies, according to its last report.

The CHAIRMAN. Mr. Brown, is there anything further you desire to say?

Mr. BROWN. Nothing orally, Mr. Chairman, except possibly this, that the position of the Niagara company is the same in regard to this last matter stated by Mr. Cohn for the hydraulic company. We took the permits as a temporary matter, never having waived our right, and as said here the other day we have called your attention

to our legal rights, not for the purpose of telling you what we are going to do, or what you have got to do, but just to emphasize the equities that should be considered in our favor.

Under the chairman's permission given the other day, I shall ask at the close of these hearings to file a brief summary, including possibly answers to propositions that have been made as they occurred

to me.

Mr. GARNER. Supposing that Congress should decide not to permit. any water to be taken out of the Niagara River on the American side on the ground that it injures navigation, and upon an investigation of the facts the courts should determine that it did not injure navigation, although Congress on that ground refused to permit water to be taken from it. What would be the result of a contest in the courts? Or, in other words, if I may put the question in this way: If Congress should find that it would injure navigation to permit 20,000 cubic feet per second to be taken, and by legislation should prohibit any portion of it to be taken, and you should go into the courts and contend that the findings of Congress were erroneous and establish that fact to the satisfaction of the court, that it did not interfere with navigation, would you still be entitled to take 20,000 cubic feet per second?

Mr. DIFENDERFER. Under the treaty.

Mr. BROWN. In the first place, let me say if I could predict always what the findings of the court would be, the function of a lawyer would be done away with.

It is the uncertainty in the solving of these problems in these matters before the courts, that we help to bring about a solution. I could not predict, sir, what a court would say, and I can only say what in my opinion they ought to say and what I would advise a client they ought to say under the law as I see it to be.

In that connection I would say to my client that the United States Supreme Court has already held in the drainage case in Two hundred United States that legislation by Congress where it attempts to limit private rights, where it tends to usurp private rights, the function of Congress in legislating or limiting upon personal or private rights, is stated by the United States Court that the exercise of such powers must have a "substantial relation to the public objects which the Government may legally accomplish," and further on the court says that the exercise, or attempted exercise, of any power by the United States Government-or any Government in these matters-must not be" arbitrary or unreasonable, or beyond the necessities of the case." Those are from the United States Supreme Court in Two hundredth United States. On the same principle I should also quote to my client as laid down by the State of New York in a Niagara decision, where they say "not even a State has the liberty to interfere with the riparian rights of the relator arbitrarily, but such interference, if attempted, must be in the interest of some substantial right of the State affected by the exercise of the rights of the riparian to the use of the water of the river." (70 App. Div., 543.)

Such principles as that I should present to my clients and advise them that they had rights which would be protected in the courts. Mr. DIFENDERFER. At that point-supposing there was a tributary branch, we will say, a river supplying a navigable stream, would a company have a right to dam up and divert that water, or

could the United States Government prohibit them from doing that thing?

Mr. BROWN. To get the question clear, Mr. Difenderfer, you mean by diversion to divert it away and have it returned to the stream? Mr. DIFENDERFER. Never returned to the stream. The Government would have a right, would it not, to interfere in a case of that kind?

Mr. BROWN. Not only the Government, but every riparian owner below, because under the law when a man diverts water from a stream-and the same principle applies whether it is navigable or unnavigable-makes any substantial diversion-he must return it to the river. If by not so returning it the lower riparian owner suffers, or if the public suffers, they each and both have a remedy. Mr. DIFENDERFER. I believe there is a Rio Grande decision of the United States.

Mr. Cline. There is a Colorado decision, too, on that point.

Mr. BROWN. Yes, but you must remember that the Colorado decision and in some respects the Rio Grande decision are decisions which are not based upon riparian rights. The decision there is based upon what we call the law of "prior appropriation," that if any man goes in upon a stream and diverts the water, and carries it away for irrigation for instance, he does not have to return it, and he gains a prior right over every subsequent user, whether that subsequent user be a riparian or any other person. That law exists in Colorado.

It is for the same reason that the decision read by Mr. Watrous, the Colorado decision, is all right in its place, but it does not apply here. That Colorado decision read the other day is where a man upon a stream had a waterfall which was attractive, and he had used it in beautifying and developing his place, his summer resort. Afterwards, somebody above tried to divert some of the stream. The scenic-beauty man said that he had appropriated this fall as a part of the beauty of his property and he claimed it by prior appro priation. A subsequent man can not get rights against him, and the courts sustained him.

Mr. CLINE. I don't want to make this tedious. Do you claim that your company is now seeking to exercise all the rights conferred upon them as riparian owners by the common law of the State of New York, or haven't they submitted some of those rights to the jurisdiction of the Secretary of War, or the jurisdiction of the commission of the State of New York?

Mr. BROWN. In answer to your question, sir, speaking for the Niagara company, we have riparian rights, vested property rights, beyond the extent that they have been exercised under any permits or as measured by any permits from the Government. Temporarily, and having regard for scenic beauty, they have submitted to provisions which have limited them to a certain use which is less than their legal rights.

Their taking the permits from the Government did not in any way constitute a submission of their rights to what is claimed-the right of the Government to dictate under the present law. They simply submitted as a temporary matter. For instance, our company had a capacity already developed, which required, for an economical operation, 10,000 cubic feet a second. The present law