way was 5 feet 5 inches lower than the top of the flash boards.

Evidence objected to.

[To Mr. Chase.]-I know nothing about the old penstock. If this is not the old one, I don't know any thing about it. I don't know any thing about this, except as it was shown

to me.

I found the aproning over which the water flowed, 5 feet 51 inches lower than the top of the new Dam flash boards, and 3 feet 3 inches lower than the top of that old Dam. I mean the old Dam, under water, above the new one.

I know nothing about the old penstock referred to. This measurement was in a place where the water now runs for the purpose of supplying the Mills.

The aproning of the guard-lock is 5 feet 51 inches below the top of the flash boards of the new Dam, and 3 feet 3 inches below the top of the Dam of '98. The bottom of the Pond, above the entrance, is 8 feet 3 inches lower than the top of the flash boards of the new Dam. The bottom of the basin is

8 feet 6 inches.

I took the measurements at Faulkner's flume, at different places-one measurement on the apron in the flume-different places on the apron. I found the apron 4 feet 5 inches below the top of the flash board. It is near the entrance to the Pond, at the lock. I measured 12 feet above the lock, towards the Pond, and found it 4 feet 5 inches below. From 12 to 15 -along about that distance.

[To Mr. Chase.]—I did not go any higher up.

1 took the height of the top of the flash board, and then took that of the apron, and compared one with another. I had used iron rods to find hard bottom, trying the depth. I went to the ledge. In some places, there was some gravel; in some places, it appeared to be bare. It was uneven-it varied somewhat. I don't think I found a foot of gravel, where I tried. I can't say but in some places there was; but I endeavored to show where it would go clear. I went through the gravel, so as to

see that it was solid rock, so as to get, as near as I could judge an average, along, of the ledge. I did not find any thing that I considered gravel bottom: I think it was washed in-I don't know about that.

My next measurement was on the Bars,-at Barrett's Bar, and up at the mouth of the Assabet. I took no levels. I have given the measurements at Barrett's Bar, of what appeared to me to be the deepest part of the channel. I, at this time-the 28th of November, went over the same ground. I found the water about six inches deeper; but, by comparison, I could examine the comparative depth of the channel. It was then 6 inches. deeper than the 6th of November, about 4 feet 7 inches, this time, in the same place where it was 4 feet 1 inch before. I examined some, above, and found it the shallowest place. This channel was on the East side of the River. I found the East side was the deepest. The shallowest place was 4 feet 7 inches, this time. I examined along, up, till I found it was a good deal deeper,-some six or eight rods. This appeared to be the shallowest place, and it was some ten or twelve rods, I should think, before it was much deeper.

[To Mr. Chase.]-1 do not know the state of the water on the Dam at that time.

I went up to the mouth of the Assabet, and found the water, there, 5 inches shallower than at Barrett's Bar, the same day-an hour or two, afterward. The channel there, I think, was the shallowest place of any that I found, near the point where the two rivers meet, and I think it was nearer that point than the Concord side. I do not mean, and did not, the shallowest place, but the shallowest place in the channel. The channel is on the West and North side.

Every time I was at the Dam, I found the water running over, -sometimes the same as on the 4th of October, and sometimes deeper.

[To Mr. Chase.]—I do not know how the water is taken from the basin, to carry the Mill. This penstock goes into the basin. [The penstock now in use.]

tion.

CROSS-EXAMINED by Mr. Abbott.

Cross-examina- I made no measurements before October 4th. I cannot tell the distance from the guard-gate at Faulkner's Mill, to the Pond. I measured along, twelve to fifteen feet. I asked no one where the measurements they had taken before were made. I went all over the ground, with a boat, to find the shallowest place, but took no measurements that I made a record of, except as I have given.

The channel on the East side at Barrett's Bar had a shallow place between it and the West side, only a foot or two deep. The East channel might have been four, or five, or six feet wide. I don't know that it was so wide. I took no measurements of the width at the shallowest place, or any such as I could make a plan from.

tion resumed.

DIRECT EXAMINATION RESUMED by Mr. Mellen.

Direct examina. It might have been three, four, five, or six feet deep. It grew deep, gradually. I cannot define it any better. It was, perhaps, a rod, a rod and a half, or two rods wide, where it shallowed off. I went both sides of the stream, so that I was satisfied we had found the deepest place.

Mr. MELLEN stated that a certain record desired by the Complainants, being that of the Middlesex Canal Company, had missing from it the record of the addition to the height of the Dam at Billerica in 1828; and on that ground asked for a delay.

[Recess.]

Benjamin F.
Butler sworn.

BENJAMIN F. BUTLER called and sworn. Examined by
Mr. Mellen.

Question.-Have you had any paper in your possession, like the one that is inquired for privately? Answer. I have a copy of a leaf in Mr. Eddy's memorandum-book, which is the only paper like the one which you inquire of, that I know I have. I have every paper that I know

I had, relating to the Canal, but that mentioned. At the trial of Whipple vs. The City of Boston Water-works, brought for taking the Concord water and diverting it to Boston, Mr. Eddy, who had been the Canal-Agent for many years, was called as a witness, by the City. He spoke of certain measurements, and of certain heights of water, and dam, and was cross-examined by me. At the time of that cross-examination, he produced a memorandum-book-being a book about like the one which the Secretary has, to take minutes in, -and there seemed to me to be some measurements which were quite material to the case, as I then understood it,-and not only to that case, but which might be material hereafter, in some investigations of the Meadow matters. I asked to have the book, and had my associate copy it into his book; and I have some faint impression that he made me a copy on a half-sheet of paper. That sheet of paper I cannot find, if ever I had it; and I have only impression about that. But I know I had the copy made, at noon-time, while the examination was pending, during the intermission; Mr. Eddy having been called morning and afternoon. That paper I have, and that is the only paper I ever had, like that which you ask for. I never had any other paper about that matter, than that. I believe I have, here, every paper that ever I have had, about the Middlesex Canal. And I am the more certain, because I find the original papers I first had, bear an unfortunate mark of genuineness, having been through the fire. Therefore, I did not lose them. They have been wet, and have been dried. At your request, I took from my file of filed-away papers, at Lowell,-the rule in my office, there, being that, when a case is ended and done, the papers in the case are done up in a brown paper wrapper, and put away in a closet, to await any further action. I had that book in my possession; and other than the book, I had no original paper belonging to the Canal-not separate from it.

Cross-examina

tion.

CROSS-EXAMINED by Mr. Abbott.

That little memorandum-book I had in my possession only during that trial-some portion of the

trial, and I don't know but all of it.

The proposed ex- Mr. MELLEN stated that in November the Comperiment at the

Dam. Complain

ants allege their plainants had applied to Mr. Abbott, as Counsel for

compliance with the Respondents, to have the water drawn off at

Respondents'

terms, and fail

Respondents.

of Counsel.

ure on part of the Dam, upon the terms offered by the ResponCorrespondence dents, with a pledge that $200 damages per day should be given them, for each day that the water should be drawn off after the length of time specified. At the time when the Respondents' first offer was made, a large reservoir above was about to be drawn off, which, the Petitioners were aware, would have prevented any useful result from the experiment. To the application made in November, Mr. Abbott returned a reply,

Mr. Abbott's re

as to proposal of experiment a Dam.

Introduction of Which Mr. MELLEN read, [Appendix V], and stated ply to Mr.Mellen his understanding of the first offer made in regard to the experiment, on August 24th [recorded by the Secretary of the Committee, p. 64], and desired to introduce further correspondence in reference to the experi

ment.

Some discussion ensued as to the facts in relation to the Respondents' previous proffers [See pp. 64, 89, 95, 119, and Appendix U.*] Objection was made, by the Petitioners' Counsel, to the admission of the correspondence on the subject; which objection was not sustained.

called.

DAVID HEARD recalled. Examined by Mr. Mellen.

David Heard re- I went to Boston, with Mr. Edward Gleazon, ten or fourteen days before the date of Judge Abbott's letter to me ten days, certainly. Mr. Gleazon and I called at Judge Abbott's office, and I remarked to him that we had come to see about the offer he had made. He made some remarks, -whether jocose or otherwise,-that they couldn't draw it off, then. We said we would accede to his offer, and give him $200 for each day that the gates were open after the three days.

* The motion in relation to this experiment, offered, on the first day of the hearing, by Mr. Child, [p. 89], was not placed in the Reporter's hands till after that portion of the work had passed through the press. It will be found as Appendix U.