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truth. Unless the plan shall be materially changed, the cost will, in all probability, exceed the last estimate, by

Making a total of

It is obvious, that the benefit of this improvement cannot be fully realised until the canal is enlarged throughout its whole extent. At the rate at which the work has thus far progressed it will occupy full ten years. There should, therefore, be added to the above sum the interest on money expended from year to year, until it is completed, which cannot well be estimated at less than

$5,000,000

$30,000,000

$10,000,000

Total cost of the enlargement,

$40,000,000

To which add the original cost of the canal, which is merged. in the enlargement as above stated,

$10,000,000

Gives a total of

$50,000,000

which the Erie canal will cost the State when the enlargement is completed on the plan contemplated.

By the aid of the steamboat tax, the auction tax and the salt tax, the original cost of the Erie canal has been provided for. Without this extraneous aid, the canal, with its boasted business and revenue, would barely have paid the interest on its cost, repairs and superintendence, and the State would now have been in debt for an amount equal to its cost. This assertion will doubtless surprise many, but it is nevertheless true, that if the Erie canal had depended upon its own revenue for the liquidation of its debt and payment of the expenditures necessary to keep it in operation, it would now have been in debt to an amount equal to its original cost. For the proof of this, see the report of the comptroller, January, 1839.

It is now the intention to add to the cost of the Erie canal nearly $40,000,000, in effecting an enlargement of its channel, which expenditure we shall demonstrate is not required by any reasonable anticipations of the increase in trade, which will necessarily pass upon it; and not warrented by any other advantages which are likely to accrue from it.

From the completion of the Erie canal to the period when the enlargement of its channel was contemplated, viz:-in 1835, the increase in the amount of transportation had been rapid, exceeding very greatly all previous calculations. Upon the eastern portion of the canal where the press of business was the greatest, the number of lockages were very nearly equal to the capacity of the locks, and hence the apparent necessity of some further provision for the anticipated increase in the business either by doubling the locks, or by an enlargement both of the locks and the channel of the canal.

This anticipated increase in the trade has not since been realised. By the comptrollers report, above referred to, it appears that the number of tons

of freight coming to tide water on the Erie canal for the four past years is as follows:

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From which it appears, that the tonnage for 1838 is about one-sixth lers than for 1835.

The preponderance of the trade on the canal is in the direction of tide water, in the ratio according to the report just referred to, of 4 tons descending, to one ton ascending. There is consequently no necessity for an enlargement of its channel to accommodate the ascending trade or that going west.

The descending trade is composed mainly of the productions of the "forest" and "agriculture."

ag

The number of tons of the former coming to tide water in 1835 was 540,202, in 1838 it was 400,877. showing a decrease of 139,325 tons-the number of tons of the latter in 1835 was 170,954, in 1838 it was 182,142 showing an increase of only 11,188 tons. That is, the increase in the ricultural products for the four years mentioned was only one fourteenth part of the decrease in the products of the forest for the same time. In this proportion it will require, at least, fifty years for the increase in the agricultural products to equal the falling off in the products of the forest in four years! Should therefore the latter continue to decline in the same or even a less ratio than heretofore the canal, instead of being more, will for some years to come, be less crowded than it has hitherto been.

That there will be a considerable falling off in the product of the forest, there is little doubt. The whole number of tons of every description of freight coming to tide water in 1838, was 640,481, of which 400,877 tons or nearly two thirds was from the forest and composed almost wholly of timber, boards, scantling and ashes. These, therefore, so far as tonnage is concerned, are now the prominent items of transportation upon the canal.

All of the more valuable timber within reach of the canal is nearly removed, and will not be replaced any considerable portion of it, by a seccond growth. This is strictly true of the pines, hemlock, spruce and tamarack, which constitutes the bulk of the timber conveyed to market.

In addition to this, lumber of various descriptions has already attained a price in market, owing to its scarcity, which brings it in competition with the timber from the Carolinas, Georgia, Maine, and New Brunswick. From the first named States is now obtained a large portion of the more valuable timber used in house and ship building in the City of New York. Much of the timber used in the construction of railways in the northern States is also obtained from the same source. The portions of the State of New York in which any considerable amount of timber is to be found are the northern and south-western. That from the former finds a

very direct route to market through the Champlain canal. That from the latter, in consequence of the cheap descending navigation of the Alleghany and Ohio rivers passes off in that direction-and what will surprise many who are not conversant with the course of business in that section of the country, is used to a very considerable extent in the construction of buildings in Indiana and Illinois.

Those who are acquainted with the business upon the Erie canal know that there is a very great difference in the tonnage or transportation on its eastern and western divisions. From Albany to Buffalo, the tonnage may be said to decrease almost in an arithmetical ratio. The extreme western portion of the canal is in fact in a similar condition as it regards business. with the lateral canals, compared to them, it is like the spindle-top of a tree compared to its branches. Much has been said of the unproductiveness of the lateral canals,but the fact seems to have been overlooked that the western portion of the Erie canal is open to the same objection. The Oswego branch, terminating at Lake Ontario, is 38 miles in length. The esti mates of cost and reports of the Comptroller show that the nett receipts from this branch from the business passing upon it, are greater, compared with its cost, than the corresponding receipts, from an equal extent of the extreme western portion of the Erie canal terminating at lake Erie. By this statement we do not mean to be understood to say that the business is the greatest on the Oswego canal, but that relatively to its cost, the nett receipts are the greatest and hence the most profitable. That the business upon the Erie canal is much the greatest on its eastern than upon its western sections is evident from the fact already adduced, that two thirds of the tonnage descending to tide water, is the product of the forest, nearly all of which, by reference to the Comptroller's report, is brought to the canal east of the Seneca river. The points where most of the lumber is received are at the junctions with the Cayuga and Seneca and Oswego canals and with the Oneida Lake canal near Rome.

West of Montezuma or Syracuse the Erie canal is far, very far indeed from needing enlargement to accommodate any anticipated increase in the trade upon it. This part of the Erie canal embraces an extent of about une hundred and ninety miles, or more than one half of the whole extent of the canal.

The estimated cost of the enlargement of this portion, not having the report at hand to refer to, cannot be stated with precision, but it can not, it is imagined, vary much from about three-eighths of the whole cost, or according to what is shown above, about fifteen millions of dollars. The expenditure of this sum will not, as in the case of the construction of a new work enhance the value of real estate, and other property in its vicinity. It is in fact, a work most completely of supererogation, not needed for the purpose designed, and will, if persisted in, serve only as a monument of the folly of its projectors and advocates, and prove a cause of deep and lasting regret. Other reasons may be adduced why the enlargement of the Erie canal

Legal opinion in relation to the right of the Common Council 45

is not required, to accommodate the prospective business upon it. These with our remarks upon the effect of the enlargement, in reducing the cost of transportation, will be reserved for another communication.

FULTON.

The following legal opinion, as to the right of the Common Council to permit the laying of rails in the streets, will be found both interesting and useful.

CASE FOR COUNSEL.

The Board of Aldermen of the city of New York, at their meeting on the 30th December, 1839 passed the following resolution :

By Alderman Purdy-Resolved-That the Counsel of the Corporation report to this Board, his opinion upon the right of the Common Council to permit the Harlem Railroad Company, or any other chartered company, to use the centre of the public streets for private purposes and individual gain, so as in any respect to abridge the use of the public therein.

The resolution passed by the Board of Aldermen upon which I am desired by the Harlem Railroad Co. to give my opinion, purports to inquire whether the Common Council have a right "to permit the Harlem Railroad Company, or any other chartered Company, to use the centre of the public streets for private purposes and individual gain, so as in any respect to abridge the use of the public therein."

If I should confine myself to answering this inquiry in the shape in which it is put, I should probably say that the Common Council have no such right. But it is obvious that the language of the resolution does not reach its own purpose and such an answer would therefore be illusory in respect to the inquiry really meant.

This resolution by coupling the Harlem Railroad Company with "any other chartered company," assumes that in respect to using the centre of the public streets, the privileges of all chartered companies might be alike, which neither follows as a matter of course nor is legally true; and by designating that use to be for private purposes and for individual gain, it begs the very question upon which the determination of the matter rests.

I presume the object of the resolution was to test the right of the Com, mon Council to permit the Harlem Railroad Company or any other chartered Railroad Company, to lay rails and run cars over the centre of any public street; and in this view of the subject I have no hesitation in saying not only that the Common Council have such right, but that if (all things considered) they should deem that public convenience would be promoted by such permission it is their duty to grant it.

The character of a chartered railroad company in respect to the public or private nature of its purposes admits no longer of a question. Those companies belong to that class of corporations, such as turnpikes, ferries, canals and bridges, when the uses are all public, although individuals may be benefitted. The general principle that all such enterprises are for public use and accommodation, although undertaken and conducted by pri

46

Legal opinion in relation to the right of the Common Council. vate corporations, or even by individuals, has been repeatedly decided both in the State Courts, and the Supreme Court of the United States; and in this State that principle has been extended to chartered railroad companies by the Court of Chancery in the case of Beekman vs. Saratoga Railroad Co., 3d Paige, Rep. 45, and by the Supreme Court in the case of Bloodgood vs. Mohawk and Hudson railroad Co., 14th Wendell, Rep. 51. In those cases the right of railroad companies to take private property on making just compensation against the will of the owner, was fully and ably discussed; and that right was established on the ground that such companies are incorporated for public convenience. The question of private or individual gain (or possibly loss) has nothing to do with the subject. It is merged in the consideration of public benefit.

I therefore take the following grounds:

1st. Railroads are made and conducted by chartered railroad companies for the purpose of affording better accommodation to the public for travelling and transporting property from place to place, than they could otherwise enjoy.

2d. The very end for which streets are laid out, is that the public may have the greatest facility for such travel and transportation of property, by such modes of conveyance as may best answer the purpose.

3d. The power of regulating the use of the public streets of this city rests with the Common Council, and they are bound so to exercise that power as that the public may derive the greatest amount of benefit from such use.

From which I draw this conclusion; that if the public will derive a greater amount of benefit or convenience from having a railroad in operation through any street, than they could enjoy without it, the Common Council have clearly a right to allow a chartered railroad company to make and conduct one through such street. It is within the compass of

their duties so to do.

The resolution supposes that such use of a street by the railroad company may in some respect abridge the use of the public therein.

This is a point upon which any one may from observation or experience form his own opinion; but be it as it may, it cannot effect the question of the right of the Common Council although it might influence their discretion in the exercise of such right.

carries with it the power of abridgWhat is the effect of the ordinance

The power of regulating, necessarily ing an indiscriminate use of the street. requiring carriages, &c., to keep on the right hand side, but to abridge and limit the use of the street? If the Common Council have no authority to restrict the public in the use of the streets, what right have they to lay off side-walks for the exclusive use of foot passengers and prevent carts and carriages from coming therein?

The answer to all this is, that the convenience, comfort and safety of the public is protected and promoted by such restrictions. The greatest good

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