THE PRESERVATION OF NIAGARA FALLS.

To the EDITOR OF THE SCIENTIFIC AMERICAN:

At the head of the editorial columns of your publication I note that it is declared that "The purpose of this journal is to record accurately and in simple terms the world's progress in scientific knowledge and industrial achievement." Immediately following this declared purpose, in your issue of May 27, you publish an editorial entitled "Niagara Falls again threatened."

The writer has resided a lifetime in proximity to the great Falls of Niagara, has witnessed the electrical power development from the beginning, is familiar with every detail of it, and confidently asserts that the diversion of the waters of the Niagara River for power-development purposes has made absolutely no perceptible difference in the flow of the river. The only difference that has been seen in the river has been caused by the changes in the direction of the wind, by ice jams for a few hours in the winter, and by high and low water conditions that are periodical and are common to all lakes and streams. Sometimes Lake Ontario washes its banks and sometimes there are many yards of beach. In corroboration of my statement that the power development has made no perceptible difference in the flow of the river, I bring official testimony. In the early summer of 1908 the two power company plants in this city were entirely shut down for several hours, and a test was made by United States engineers to ascertain the effect upon the flow of the river over the Falls. In a letter to the Engineering News of July 2, 1908, Maj. Charles Keller, Corps of Engineers, United States Army, officer in charge of lake survey, said that during the period of the shutdown “the rise shown by the gauge set by the lake survey close to the crest of the American Fall was about an inch, and was fully as much as anticipated." Another test about the same time was officially reported by G. Edward Wilson, secretary of the American section of the International Waterways Commission, as forty-six one-hundredths of an inch. The Burton law was in effect then, it is in effect now, and Niagara Falls is not "threatened" any more now than it was then. In fact, a treaty between the United States and Great Britain has since been ratified which permits the diversion of 20,000 cubic feet per second of water on the American side and 36,000 cubic feet per second of water on the Canadian side. This provision was in accordance with the recommendation of the International Waterways Commission, which thoroughly investigated the subject. The present diversion on the American side of the river is 15,600 cubic feet per second of water, so that there is still a leeway of 4.400 cubic feet per second of water under the limitations of the treaty. Before the present permits were granted under the Burton law that went into effect June 29, 1906, William H. Taft, then Secretary of War. came to Niagara Falls and gave a hearing to all parties interested. In granting the power permits Secretary Taft promulgated a lengthy opinion, in which he said: "The International Waterways Commission, a body appointed under a statute of the United States to confer with a similar body appointed under a statute of Canada, to make recommendations with reference to the control and government of the waters of the Great Lakes and the valley of the St. Lawrence, have looked into the question of the amount of water which could be withdrawn on the American and the Canadian sides of the Niagara River without substantial injury to the cataract as one of the great natural beauties of the world, and after a most careful examination they have reported, recognizing fully the necessity of preserving intact the scenic grandeur of the Niagara Falls, that it would be wise to restrict diversion to 28.600 cubic feet per second on the American side of the Niagara River and to restrict the diversion on the Canadian side to 36,000 cubic feet per second."

Later the British-American treaty provided for a diversion of 20,000 cubic feet per second of water on the American side and 36,000 cubic feet per second of water on the Canadian side. My information is that the present diversion is 27,000 cubic feet per second of water. Your statement is that it is 34,000 cubic feet per second of water. In the opinion referred to above Secretary Taft continued:

"I have already said that the object of the act is to preserve Niagara Falls. It is curious, however, that this purpose as a limitation upon the granting of permits by the Secretary of War is only specifically recited in reference to his granting permits for diversion of additional amounts of water over 15.600 cubic feet on the American side, which are to be limited to such amount, if any, as in connection with the amount diverted from the American side, shall

not interfere with the navigable capacity of said river or its integrity and proper volume as a boundary stream or the scenic grandeur of Niagara Falls.' This peculiarity in the act is significant of the tentative opinion of Congress that 15,600 cubic feet of water might be diverted on the American side and 160,000 electrical horsepower might be transmitted from the Canadian side without substantial diminution of the scenic grandeur of the Falls." And then Secretary Taft gave his decision that "acting, however, upon the same evidence which Congress had, and upon the additional statement made to me at the hearing by Dr. John M. Clark, State geologist of New York, who seems to have been one of those engaged from the beginning in the whole movement for the preservation of Niagara, and who has given close scientific attention to the matter, I have reached the conclusion that with a diversion of 15,600 cubic feet on the American side and the transmission of 160,000 horsepower from the Canadian side the scenic grandeur of the Falls will not be affected substantially or perceptibly to the eye."

That is the diversion that is taking place to-day. It was the judgment of the International Waterways Commission and the men who framed the BritishAmerican treaty that an even greater diversion would not be injurious. It was the opinion of the Congress of the United States and Secretary Taft that the present diversion would not be injurious. A test made by engineers of the United States Lake Survey Corps proved that the diversion is not perceptible, and we who see Niagara River daily say that no effect on its flow is seen as the result of power development. There is now being developed from the Falls of Niagara 350,000 electrical horsepower. Their total power-producing capacity is estimated at from 5,000,000 to 7,000,000 horse. Do you think the cataracts as a spectacle are seriously threatened?

NIAGARA FALLS, N. Y.

The SPEAKER OF THE HOUSE OF REPRESENTATIVES,

C. T. WILLIAMS,

City Industrial Agent.

JUNE 27, 1911.

Washington, D. C.

SIR: I have the honor to invite attention to the situation with respect to the legislation for the protection of Niagara Falls. The act of June 29, 1908 (the Burton Act), as extended by joint resolution of March 3, 1909, by which the supervision of the operations of the power companies at Niagara is placed in the hands of the Secretary of War, will expire by limitation on June 29, 1911, two days hence, and unless some action is taken by Congress the authority of the War Department in the matter will then cease, and the existing permits issued by the Secretary of War, in conformity with the terms of the act, will become void.

The treaty of May 13, 1910, with Canada fixes a maximum limit for permissible diversions of water at Niagara, but does not vest in any person or commission the power to control such diversions nor place upon any person or commission the duty of seeing that these diversions do not exceed the limits fixed by the treaty. The importance of early action in the matter by Congress is therefore apparent if the dangers of a partial or complete lapse of the supervision now exercised by the War Department are to be avoided.

I therefore urgently recommend that the matter be laid before the House, and that the importance of the early passage of Senate joint resolution 3 or of a substitute acceptable to the House be emphasized.

Very respectfully,

H. L. STIMSON,
Secretary of War.

WHAT THE AMERICAN CIVIC ASSOCIATION IS AND DOES.

The American Civic Association for the past eight years has been a recognized national organization for the making of better living conditions for all America, especially in the improvement of the physical and structural growth of communities. Its purpose is briefly stated as being "the cultivation of higher ideals of civic life and beauty in America, the promotion of city, town, and neighborhood improvement, the preservation and development of landscape and the advancement of outdoor art."

The general offices of the American Civic Association were established in Washington in January, 1910, and from that city there has been conducted a

vigorous propaganda by correspondence and distribution of printed literature extending to all parts of the United States and Canada. The association maintains a department for the rental of lantern slides, which may be used by local speakers, and which are descriptive of the changes that may be effected in towns and cities.

These are particularly valuable because they illustrate, in picture form, conditions "before and after" in scores of communities where definite work has been done. Under the patronage of the association sectional meetings have been held in various sections and during the year to come it is proposed to arrange several important territorial meetings where representatives from a group of States may be brought together to hear the practical talks given by experienced men on many phases of the work of the association.

The American Civic Association is supported by a membership of individuals and affiliated societies, the annual fee being $5, with special classes of sustaining members at $10, life members at $50, and contributing members at larger

sums.

The principal officers of the association are J. Horace McFarland, of Harrisburg, Pa., president; Clinton Rogers Woodruff, of Philadelphia, first vice president; William B. Howland, of New York, treasurer; and Richard B. Watrous, of Washington, secretary. These are assisted by five vice presidents-George B. Dealey, of Dallas, Tex.; Dr. John Wesley Hill, of New York; Mrs. Edward W. Biddle, of Carlisle, Pa.; George W. Marston, of San Diego, Cal.; and J. Lockie Wilson, of Toronto, Canada. In addition there is a general executive board made up of 18 prominent men and women from various cities all over the country.

The scope of the association is not limited. It stands for better living conditions, and that takes in almost everything. It stands for clean streets and solicits the aid of every citizen; it advocates germ-free drinking water, and is doing what it can to educate the public to see that economy and health are both on the side of good water; it espouses underground wires for electric lines, and is striving to impress the public with the importance of such a program; it believes in playgrounds for the children and parks for grown-ups, and is lending aid to every agency that would bring them about; it believes water fronts free from filth are essential to public health, and therefore advocates adequate systems of sewage. Public-comfort stations, garden schools for children, grouping of public buildings, care of the trees and planting of new ones-these are some of the planks in the platform of the association. And it has more effective means of campaigning for the public good than are usually at the disposal of uplift workers. Its members are enthusiastic believers in the promotion of the public welfare, and are moved by humanitarian instincts; it has hundreds of affiliated organizations which work to further its purposes; it has an efficient publicity system for commanding the public attention and a system of distributing its literature where it will count. Thus equipped, it expects to do its part toward making the ensuing year notable for the promotion of the welfare of all classes and conditions of society.

IN THE CIRCUIT COURT OF THE UNITED STATES WITHIN AND FOR THE DISTRICT OF COLORADO, SITTING AT PUEBLO.

The Cascade Town Company, complainant, v. The Empire Water and Power Company et al., defendants. In equity. No. 413.

Leander A. Bigger, complainant, v. The Empire Water and Power Company et al., defendants. In equity. No. 353.

I. THE FACTS.

Complainant, The Cascade Town Co., owns several hundred acres of land up Ute Pass, about 11 miles from Cololrado Springs. Fountain Creek flows through Ute in an easterly direction, and as it passes the lands of the complainant company its waters are augmented by those of Cascade Creek-short in length of flow but precipitous-which come down from the watershed on the northerly slope of Pike's Peak to the westerly.

The said complainant company and its predecessors in title have owned these Jands for many years, and they began improving them as a summer resort more

than 20 years ago and have maintained them as such ever since and have not sought to utilize them otherwise. For that purpose they have constructed hotels there and built cottages, roads, and trails on its lands extending up through Cascade Canyon, through which the stream of the same name flows, and on beyond into the mountains, laid out, dedicated to the public, and improved a small park in said canyon, made a lake and fountain, built a pavilion or auditorium for conventions, and otherwise improved its grounds, thereby adding to the attractions of the place as left by nature. The complainant company and its predecessors are not, and were not, municipal corporations but business ventures created for the purpose of maintaining their property as a resort for tourists during the summer rseason. The place is known as Cascade. The Midland Railway, which traverses Ute Pass, has a station there. The complainant company has sold some of its property to persons who desired to improve the same as summer homes, and the complainant Bigger has spent about $15,000 in improving his home on land bought from the company, lying on both sides of Cascade Creek just below the canyon. The company obtains an income from those who stop at its hotels and enjoy other accommodations which it offers. It has spent a large amount of money in improvements. The roads and trails up Cascade Canyon and on into the mountains were constructed at an expense of fifteen or twenty thousand dollars. It also built a small waterworks to supply the cottages and its hotels. It advertises the place for the purpose of inducing the public to go there, and for the past quarter of a century it has been visited annually by twelve or fifteen thousand people. It has a permanent population of 50 or 60 people.

Among other attractions held out in its advertisements are Cascade Canyon and the falls of Cascade Creek through the canyon. The canyon and falls are rare in beauty and constitute the chief attraction. Without them the place would not be much unlike any other part of Ute Pass. The canyon is about three-quarters of a mile long and very deep; its floor and sides are covered with an exceptionally luxuriant growth of trees, shrubbery, and flowers. This exceptional vegetation is produced by the flow of Cascade Creek through the canyon and the mist and spray from its falls. Some of these falls are as much as 30 feet in height, but the difference in elevation between the foot and the head of the canyon is so great that the falls are almost continuous from the head down. The volume of water is the greatest during the summer season. It comes from the melting snows and on the north slope of Pikes Peak. But the flow is fairly even, due to the fact that the upper stretches of the watershed are composed of disintegrated granite, into which the water first sinks and gradually percolates until gathered into the bed of the stream. The volume is said to be equivalent to a stream about 8 feet wide and 6 to 8 inches in depth. The vegetation in the canyon and up its sides consists, in part, of pine, spruce, fir, balsam, aspen, black birch, Japanese maple, thimbleberry, wild cherry, chokecherry, and aster columbine, larkspur, wild rose, the red raspberry, wild gooseberry, ferns, mosses, and many other kinds of trees, shrubs, and flowers. The stream is annually stocked with trout. The birds which are found in the canyon-some grouse, a few squirrels, and perhaps a few wild animals there are protected by the complainant company. The complainant called a florist of 25 years' experience and a landscape gardener of 25 years' experience as witnesses. They tell us that the native flora of the country is quite extensive in Cascade Canyon; that the evergreen features are perfect; that there are three or four varieties of pines, three of juniper, and three of spruce, probably 25 varieties of native perennials, and several varieties of moss growth and a large variety of wild flowers and flowering shrubs; that the waterfalls create a spray and mist which, together with the underground seepage down the sides of the canyon, produce this very luxuriant growth, there being at least 200 varieties of vegetation; and that it is far superior in that respect to any other canyon in the neighborhood, and exceptional. The seepage and the mist and spray give life to the foliage.

The defendant was incorporated for the purpose, among other things, of generating electricity by water power, and to dispose of the same as a commodity; and to execute that purpose it sent its agents on to the watershed of Pike's Peak, above the head of Cascade Canyon, and located a reservoir site and did some acts, at small expense, looking to the execution of that purpose, whereby it intended and expected to impound the waters in such reservoir and later conduct it in pipes down the mountain to and beyond the property of the complainant company. And thereupon complainants filed their several bills

asking that the defendant be enjoined from so doing as a threatened injury to their vested rights.

It is found as a fact that if the defendant do impound the waters of Cascade Creek above the falls and conduct it therefrom in pipe as aforesaid, the falls in the canyon and the vegetation on its floor and sides will be largely if not wholly destroyed and the canyon hence become a dry gulch, and that all the waters flowing in said stream are needed by complainant company, and are necessary for the aforesaid purpose to which they have been applied by said complainant.

II. THE LAW.

1. The first contention of both complainants is that the Government, while it was the owner of the lands on which the canyon and the falls are situated, had riparian right in the stream and that those rights were conveyed by patent from it, through mesne conveyances, to the complainants.

This contention can not be accepted. There are no riparian rights in Colorado as against a valid appropriation of water.

In Sternberger v. Eaton Co. (45 Colo., 401, 404), it is said:

"The doctrine in this State that the common-law rule of continuous flow of natural streams is abolished is so firmly established by our constitution, the statutes of the Territory and the State, and by many decisions of this court, that we decline to reopen or reconsider it, however interesting discussion thereof might otherwise be, and notwithstanding its importance."

And again, page 403:

"The Supreme Court of the United States in several cases has approved and indicated its satisfaction with the decisions of the State courts which hold that the common-law doctrine has been abolished, and has said that each State, without interference by the Federal courts, may for itself, and as between rival individual claimants determine which doctrine shall be therein enforced." In Coffin v. Left Hand Ditch Co. (6 Colo., 443. 446), it is said:

"It is contended by counsel for appellants that the common-law principles of riparian proprietorship prevailed in Colorado until 1876, and that the doc trine of priority of right to water by priority of appopriation thereof was first recognized and adopted in the constitution. But we think the latter doctrine has existed from the date of the earliest appropriations of water within the boundaries of the State. The climate is dry, and the soil, when moistened only by the usual rainfall, is arid and unproductive; except in a few favored sec tions, artificial irrigation for agriculture is an absolute necessity. Water in the various streams thus acquires a value unknown in moister climates. Instead of being a mere incident to the soil it rises when appropriated to the dignity of a distinct usufructuary estate, or right of property. It has always been the policy of the national as well as the Territorial and State governments to encourage the diversion and use of water in this country for agriculture, and vast expenditure of time and money have been made in reclaiming and fertilizing by irrigation portions of our unproductive territory. Houses have been built and permanent improvements made; the soil has been culti vated and thousands of acres have been rendered immensely valuable, with the understanding that appropriations of water would be protected. Deny the doctrine of priority or superiority of right by priority of appropriation and a great part of the value of all this property is at once destroyed.

"The right to water in this country by priority of appropriation thereof we think is, and has always been, the duty of the National and State governments to protect. The right itself, and the obligation to protect it, existed prior to legislation on the subject of irrigation. It is entitled to protection as well after patent to a third party of the land over which the natural stream flows as when such land is a part of the public domain; and it is immaterial whether or not it be mentioned in the patent and expressly excluded from the grant. "The act of Congress protecting in patents such right in water appropriated, when recognized by local customs and laws, was rather a voluntary recognition of a preexisting right of possession, constituting a valid claim to its continued use, than the establishment of a new one. (Broder v. Notoma W. & M, Co.. 11 Otto, 274.)

"We conclude, then, that the common-law doctrine giving the riparian owner a right to the flow of water in its natural channel upon and over his lands, even though he makes no beneficial use thereof, is inapplicable to Colorado. Imperative necessity, unknown to the countries which gave it birth, compels the recognition of another doctrine in conflict therewith. And we hold that,