No. 22.

IN SENATE, FEB, 4, 1851.

REPORT

Of the committee on claims on the several petitions of Cicero Collins, and Charles W. Woolston, Erastus Hughes, Henry Pardee, and Jemima Barber, administratrix of the late Asahel Barber, deceased.

Mr. Schoonmaker, from the committee on claims, to which was referred the several petitions of Cicero Collins, and Charles W. Woolston, Erastus Hughes, Henry Pardee, and Jemima Barber, administratrix of the late Asahel Barber, deceased,

REPORTS:

That the committee have had such petitions under consideration, and have examined the same, together with the affidavits and papers relating thereto, and find it alleged in said papers substantially, that in the month of December, 1847, after the closing of the canal for the winter, the water in the canal in the town of Perinton, Monroe county, was raised by a rain of several days' continuance. Such rise of water occasioned a breach in the canal near Bushnell's basin in said town. It is further alleged, that at the time such breach occurred, and for some days before and after, there was no person in the employ of the State on the canal in the vicinity. And it is further alleged, that at the time the breach occurred, the two waste wier gates in the vicinity of Pittsford and Fairport, the one two and the other six miles from the place of the breach, were closed, and [Senate, No. 22.] [u. n.]

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after the occurrence of the breach they were opened by some citizens. It is then further alleged that such breach has occasioned considerable damage to said petitioners respecting the owners of several farms in the vicinity, except the petitioner, Mr. Pardee, who was the owner of a saw mill. By the affidavits the damages to Mr. Pardee's mill, including loss of profits on running of the mill, is estimated at $150. The damages to the farm of Asahel Barber, deceased, are estimated in one of the affidavits at $100. The damages of the petitioner Cicero Collins are estimated in one of the affidavits for carrying off two sheds, fences, undermining barn, and damaging the land, $598. The damages of the petitioner C. W. Woolston, are estimated in one of the affidavits at $240, and the damages of the petitioner Erastus Hughes, are estimated in one of said affidavits at $270.

Upon such statements of the petitioners, your committee have come to the conclusion that there is no liability on the part of the State to respond for damages. Even upon the principle of holding the State liable as individuals, the committee suppose that an individualcannot be held responsible for damages occasioned by his mill dam being torn away by a flood, and that is a case precisely similar to a breach in the banks of a canal. As to the allegation of negligence on the part of the public officers, your committee do not conceive that that is sufficiently sustained, and even if it was, and it was evident that the breach was occasioned by such negligence, your committee are unwilling to recognize the principle of imputing laches to the government. They believe that the principles laid down by them in their report in the case of Robert Axon, made a few days since, are correct, and they are unable to report in favor of these claims under considera'ion, without an entire violation and disregard of such principles. They have as yet seen no reason to dissent from their views expressed in that report, but on the contrary are becoming daily more and more convinced of their correctness.

Your committee have therefore come to a conclusion unfavorable to the prayer of the said several petitioners, and propose the following resolution for adoption by the Senate:

Resolved, That the prayers of the said several petitioners be denied.

No. 23.

IN SENATE, FEB. 7, 1851.

REPORT

Of the minority of the committee on claims, on the Assembly bill to provide for the payment of canal damages to Josiah S. Kellogg.

Mr. Schoonmaker, from the minority of the committee on claims, to which was referred the Assembly bill entitled "An act to provide for the appraisal and payment of canal damages to Josiah S. Kellogg,"

REPORTS:

A bill, the same in all respects as the one now under consideration, was referred to your committee at the last session. A written unanimous report was then made by the committee through the undersigned, as chairman, adversely to the passage of such bill, and concluding with the recommendation that the bill be not passed into a law. Such report is contained in No. 85 of Senate documents of 1850. The undersigned still agrees with the adverse report made on this claim by different committees in 1847, 1848, and 1850, and has heard or seen nothing additional sufficient to change his views in relation to such bill. He therefore does not concur with the majority of the committee in reporting the bill for the consideration of the Senate, but adheres to his former position adverse to the passage of the bill, and recommends that it be not passed into a law. M. SCHOONMAKER.

[Senate, No. 23.]

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[u. n.] j