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As you are aware, there are unexpended balances of two appropriations made by Congress in 1881 and 1882 for the improvement of the water-power pool (see my letter to you of the 29th ultimo recommending that these appropriations be continued by Congress to prevent their being covered into the Treasury).

The Moline Water-Power Company is also interested in this work.

For the purpose of settling finally all controversies with the Moline Water-Power Company and satisfying all the claims of that company, I respectfully recommend that application be made to Congress for appropriations for the work above described; that is, both for deepening the canal and putting in the new water-ways for the Moline Company, as requested, on condition that the Moline Company agrees that if Congress makes these appropriations and the work is done by the United States as requested by the company, and, also, that Congress reappropriates the unexpended balances of the appropriations of 1881 and 1882 for the improvement of the water-power pool, and that this money is expended in pursuance of my plans submitted to you February 4, 1876, and approved by you February 17, 1876, that then the Moline Water-Power Company shall agree to deepen its own tail-race as they propose, and to accept this as a full.and final discharge of all the obligations of the United States to that company for the development of the water-power.

I also urgently recommend that in applying to Congress for the continuance of the unexpended balances of the appropriations of 1881 and 1802, that an additional sum of $30,000 be asked for for the improvement of the water-power pool. The reasons for this recommendation are as follows:

Although the unexpended balances mentioned will probably make the capacity of the water power all that is necessary for the Moline Water Power Company and for the immediate wants of the United States for water power, it is highly important that provision be made at the same time for the future wants of the United States, and this additional $30,000, if expended, in connection with the other work, when the coffer-dams are in and the water drawn off, and the bed of the pool bared, would accomplish more than twice as much as it would at some future time, when all the work of coffer-dams and baring the bed of the pool would have to be done over again, and it would also save shutting up the water power again for several months at some future time to permit this work. spectfully, your obedient servant,

D. W. FLAGLER, Lieut. Col. of Ordnance, Commanding Rock Island Arsenal.

WASHINGTON, D, C., April 3, 1882. General $. V. BENÉT,

Chief of Ordnance : SIR: Referring to our'conversation in reference to the water power at Rock Island Arsenal, and in compliance with your suggestion that the Moline Water Power Com; pany should reduce to writing its requests in regard to the further development of said water power, on behalf of said company I have the honor to submit the following:

The United States to deepen the caval tail-raco at an average of at least 3 feet at its present width throughout its entire length, and the canal so deepened shall be er. tended at its western end until it reaches a point in the river bed not higher than such increased depth of said canal, and at the eastern end of the canal the deepening shall extend to the natural bed of the river in the tail-race.

That six openings 6 feet apart for water-ways of the usual size of those heretofore made for the use of said company be made and placed for the use of said company in the wall or dike at or near where it abuts upon said company's land at the upper end of said canal, at such point as said company may indicate, completed with iron gates and suitable in all respects for use.

That the unexpended balances of the two appropriations of $50,000 each heretoforə made, and the further sum of $30,000, to be appropriated, shall be expended in the improvement of the water-power pool in substantial compliance with the recommendation of Col. D. W. Flagler, contained is his letter of February 4, 1876, to the Chief of Ordnance and transmitted to Congress.

The present wing-dam at the head of Rock Island"to be extended not less than 300 feet, and of the same general character of work as the last extension,

That upon the completion of said work, and improvements by the United States, said company will regard the same as a development of said water power. Very respectfully,

CHAS. ATKINSON, President of the Moline Water Power Company.

1st Session.

No. 164.

AWARDS FOR FLOWAGE OF LANDS ON LAKE WINNEBAGO.

LETTER

FROM THE

ACTING ATTORNEY-GENERAL,

IN RESPONSE TO

A resolution of the House of Representatives, transmitting a report of

awards for florage of lands on Lake Winnebago.

April 10, 1882.–Referred 'to the Committee on Expenditures in the Department of

Justice and ordered to be printed.

DEPARTMENT OF JUSTICE,

Washington, April 8, 1882. SIR: Referring to the House resolution of the 27th ultimo asking for information in relation to the amount of awards, &c., by reason of flow. age of lands upon the borders of Lake Winnebago, I have the honor to transmit a copy of a report of Hon. O. B. Thomas, special assistant attorney-general, in relation to this matter.

The amount of money paid by this department for services of special counsel is $21,312.50. Very respectfully, your obedient servant,

S. F. PHILLIPS,

Acting Attorney-General. The SPEAKER

of the House of Representatives.

PRAIRIE DU CHIEN, WIS., April 3, 1882. Hon. BENJAMIN HARRIS BREWSTER, Attorney-General of the United States,

Washington, D. C.: Sir: Herewith inclosed please find the report required by yours of the 28th ultimo.

The only information asked which I am unable to give definitely is as to the amount paid out by the United States for legal services in contesting claims of persons who allege that their lands have been injured by flowage caused by the Menasha dam.

My compensation was not by the case, but by the year. I can find nothing in the papers or documents in my possession showing what Mr.

Gill was paid or what Mr. Potter was paid. I am quite sure, however, that Mr. Potter was paid by the year.

There are many more cases than those referred to in the resolution; many other duties were necessarily performed by the attorneys so employed; for these reasons I am unable to state what amount has been paid by the United States for legal services in these particular cases referred to in the resolution. Very respectfully,

0. B. THOMAS, Special Assistant Attorney-General.

PRAIRIE DU CHIEX, Wis., April 3, 1822. Hon. BENJAMIN HARRIS BREWSTER,

Attorney-General of the United States : Sir: I have the honor to submit the following report, called or by your letter of March 28, 1882, transmitting the following copy of a resolution of the House of Representatives :

“ FORTY-SEVENTH CONGRESS, FIRST SESSION.

" CONGRESS OF THE UNITED STATES,

House of Representatives, March 27, 1882. Resolred, That the Attorney-General be, and he is hereby, directed to report to this House the aggregate amount of the awards made for damages against the United States, prior to 1878, by reason of the flowage of lands, upon the borders of Lake Winnebago, Wolf River, and Fox River, occasioned by the maintenance of the dam at Menasha, in the State of Wisconsin, in aid of the government improvement, so called, of the Fox and Wisconsin Rivers.

“Also to report the amount of money paid out for legal services by the United States in contesting the claims of persons who allege their lands have been injured by such flowage.

“Also the number of suits now pending against the United States by reason of such flowage.

“Also whether any of the judgments or awards in favor of persons injured by such flowage have been paid. "Attest:

"EDW. MCPHERSON, Clerk." First. The aggregate amount of the awards made for damages against the United States prior to 1878, by reason of the flowage of lands claimed to be occasioned by the maintenance of the dam at Menasha, is one hundred and two thousand nine hundred and forty-seven dollars ($102,947).

This amount does not include interest on the awards and does not include claims for such flowage made since January 1, 1978, and does not include the awards made for damages claimed to be occasioned by the maintenance of other dams in aid of said improvement.

Second. It will be impossible for me to give the exact amount by itself paid by the United States for legal services in contesting the particular claims referred to in the resolution, on account of the difficulty of apportioning the same, such services having been paid for at a certain rate per year and not by the case.

Hon. Charles R. Gill was the attorney first eriployed by the government, who was followed in the same employment by Hon. R. L. D. Potter, and I followed him, commencing May 1, 1878. Besides amounts paid to Mr. Gill and to Mr. Potter for legal services, I have received from the date of my employment to January 1, 1882, for such legal services at the rate of $1,500 a year.

Including the cases referred to in the resolution, 233 cases in all have been commenced against the Uuited States by the land-owners along the line of the improvement, wherein damages were claimed amounting in the aggregate to the sum of one hundred and sixty thousand and sixty-seven dollars ($160,067), besides the amount hereinbefore mentioned, making in all the sum of two hundred and sixty-three thonsand and fourteen dollars ($263,014). Of that number 116 cases have been commenced since I was appointed.

In addition to these 233 cases, proceedings on the part of the United States have, from time to time as became necessary, been carried on for the condemnation of lock sites, and for procuring the title to land for canal cut-offs and a canal basin ; and a great

many other duties were performed in connection with such employment too numerous to mention here. As my compensation for such legal services was by the year, and as I understand the compensation of Mr. Potter for like services was also by the year and not by the case, I am unable, as before stated, to give an estimate of what would be the proportion or amount paid for legal services in the particular cases referred to in the resolution.

Third. The number of suits uow pending against the United States by reason of the flowage alleged to be occasioned by the Menasha dam is forty-six, three of which have been commenced recently. Fourth. None of the awards or judgments in favor of persons injured by flowage' claimed to be occasioned by the Mepasha dam have been paid.

The reason why the same have not been reported for payment is that none of these cases have been finally determined.

Serious questions have arisen as to tbe proper measure of damages, the liability of the United States under all the circumstances, the jurisdiction of the courts assuming to try and determine the same, and many other important questions, especially the question as to the proper construction of that part of the act of Congress entitled "An act to aid in the improvement of the Fox and Wisconsin Rivers, in the State of Wisconsin," approved March 3, 1875, which provides in substance that compensation sball only be ascertained when in the opinion of the officer in charge it is not prudent that the dam or dams causing the towage be lowered.

Col. D. C. Houston, the officer in charge of the improvement, is of the opinion that, so far as navigation is concerned, this dam could be lowered and even dispensed with.

Report of Col. D. C. Houston to the Chief of Engineers, dated May 1, 1876.

In this report Colonel Houston says: “In regard to the lowering of the dams, while, so far as navigation is concerned, they can be lowered and even dispensed with, as a practical question they will not be lowered, as the interests of the two thriving towns of Neenah and Menasha, and other interests, are too great to permit it.” Colonel Houston bas, in substance, testified to the same in some of these cases.

As will be seen, this dam is not required for the purposes of navigation; it is kept up by the owners of the water-power; who claim the right to maintain it for hydraulic purposes, aod claim, as I am informed, that the government has not the right to take down or lower the dam for the reason that they bave become lawful owners of the water-power, with the right to protect and preserve the same. It has been established in court, that since the government became the owner of this line of water communication it has not kept up, repaired, or maintained this dam in any way. These facts being established, it becomes a serious question whether under the act of Congress aforesaid the opinion of the officer in charge of the improvement that the dam is not necessary for the purposes of navigation, and that it is prudent to lower the same, and even dispense with the same, is not a bar to further proceedings.

One of these cases is now pending in the Supreme Court, which, when decided, will settle some of the questions above referred to.

It is claimed by the land-owners that by reason of the Menasha dam the lands on the borders of Lake Winnebago, and the lands for 20 or 30 miles back on the Fox and Wolf and other streams running into Lake Winnebago, have been greatly injured and damaged, the amount claimed for which, if the liability of the United States is established and the proofs sustain the claims, will aggregate a very large sum, and to recover which proceedings, except in a few cases, have not yet been commenced, but are waiting, as I understand, the decision of these questions.

Therefore it has been considered a matter of importance, not only in relation to the cases referred to in the resolution, but in relation to the cases that are contemplated, that the foregoing questions be settled and determined, and the liability or non-liability of the United States known or defined, before the determination or payment of any awards or judgments referred to in the resolution. Very respectfully, your obedient servant,

0. B. THOMAS, Special Assistant Attorney-General.

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