tracts for making this survey, and the disbursements necessary to be made under the contracts, were assigned to the charge of Mr. Seymour.

It further appeared in evidence, that Mr. Hutchinson, with the above letter of introduction and power, proceeded to the residence of Jacob Trumpbour, in Kingston, where they, under the authority of that letter, entered into the following written agreement, being the same set out in the memorial of Jacob Trumpbour, page 17 of Assembly Documents, No. 188, of 1832.

To the Canal Commissioners.

We agree to divide the survey of the canals at Canistota. Mr. Hutchinson to take the eastern part of the Erie canal and the Champlain canal, and Jacob Trumpbour to take the western part of the Erie canal, and the Cayuga and Seneca and Oswego canals; each to be entitled to one-half of the $5,000, or the one-half of the proposition as made by Mr. Hutchinson.

JACOB TRUMPBOUR,
HOLMES HUTCHINSON.

The committee are of the opinion that the signing of this instrument consummated the contract between the State and Jacob Trumpbour; and that with this agreement in his hand, he was authorised to commence the survey of that part of the canals set off to him in it. It is fully proved that he proceeded in the survey with an honest fidelity and diligence; but before following him thither, it is deemed expedient to set out some few facts touching the construction and performance of the contracts, which have been placed in evidence.

First-The statute must be regarded as the substratum; to the principles of which the agreements and the execution of the work ought reasonably to conform. 1 Rev. Stat. page 218, section 4, requires a complete manuscript map and field notes, of all the lands to which the State have a separate title, adjacent to the canals, and appropriated to the use thereof, to be compiled; on which the boundaries of every parcel of such lands shall be designated, and the names of the former owners, and the date of each title be entered. The fifth section requires the Canal Commissioners to cause all necessary surveys to be made for that purpose.

Second-The preceding extract from the minutes of the board of Canal Commissioners placed in evidence by the testimony of Col. Bouck, one of the acting Canal Commissioners, and secretary of the board, the following resolution:

"Resolved, That said survey and maps shall include all feeders and their appendages. The boundaries of the canal shall extend from the foot of the outside slope of the banks; and where there is no embankment the lines are to include a space of five feet on the berm side, and twelve feet on the tow-path side; to include all basins and slips made at the expense of the State, and also those made by individuals; all lands purchased by the State, and edifices, artificial channels for conducting water from culverts, waste-weirs and weigh-locks, streams passing the line of canal, and all lands flowed by water are to be included on the map, and all hydraulic erections which are supplied with water from the canal, and the owners names."

This resolution shews the construction which the board of Canal Commissioners raised upon the statute at the time they accepted Mr. Hutchinson's proposition, as the basis of the agreement for the performance of the duties enjoined by the act. The committee, after a careful examination of the act, and a comparison of it with the terms of the above resolution, cannot perceive any material difference between them, except, that the resolution enumerates in details, what the statute seems to comprehend in more general terms. Neither have they been able to discover any distinction between the things to be included within the surveys, and those to be comprehended in the maps, but on the contrary the same descriptions and requirements are made with respect to both.

If it be admitted that the maps must include the boundaries of the property, then it must be also conceded that they must be ascertained by an actual survey, on the ground; for what other purpose could the Legislature have directed the Canal Commissioners to cause all necessary surveys to be made, but that the boundaries to be exhibited on the map might be designated on the ground itself, by proper visible landmarks. This is the object of every survey of boundaries. For how else can encroachments be discovered and prevented. The committee think therefore, that they incur no hazard in saying, that both the statute and the above resolution require the actual survey and designation of the boundaries of the public [A. No. 334.]

3

lands along the canals appropriated to the use thereof, by courses and distances, and visible and permanent monuments, on the ground itself, as has been heretofore used and approved in this State.

The investigation of this prominent point, naturally engrossed much of the care of the memorialists, and many facts have, by their diligence, been placed in evidence.

SIMEON DE WITT, Surveyor-General, was produced as a witness on the part of Jacob Trumpbour; his deposition, No. 3 of depositions, among other things, contains the following:

1 Q. Did Jacob Trumpbour call on you some time about May 1829, and consult you on the plan of surveying the canals to be adopted?

A. I do not recollect the precise time, but I understood it was previous to his entering on that survey. He then explained to me the plan which he meant to adopt, in performing that survey, and requested my opinion about it.

2 Q. What was that plan of survey which he so explained to you?

A. It was to make a survey of the ground which belonged to the canal by taking the courses and distances around it, making minutes of all permanent objects that lay in the way of his survey, or in its vicinity, and by taking cross measurements across the canal from object to object, to check his survey, and ascertain the bounds of private property along the canal; and in his report, to give with the map, written explanations and courses and distances.

3 Q. Did you approve of the plan as it was so explained to you?

A. I told Mr. Trumpbour that I thought his plan of doing the business would be perfectly satisfactory for the purpose for which it was intended.

14 Q. Have you examined the specimen and sample of a field book, presented by Mr. Trumpbour to the committee, marked, Exhibit I. 3d May, 1832, and also the rough draft of his map, to which the said specimen refers ?

A. I have.

15 Q. Do the said specimen and map as far as they go, and so far as you have examined the same, show his survey of the canal to have been substantially according to the plan which said Trumpbour submitted to you previous to his commencing his said survey in the early part of the year 1829?

A. They do. He explained to me in detail the principles upon which he intended to make his survey, and according to which he appears to have gone.

16 Q. Will you look at sec. 4, article 1st, title 9th, of chapter 9th of part first of the Revised Statutes, and state to the committee, whether in your judgment the said survey, map and field book conform to the requirements of the said section?

A. In my opinion they do, if the survey has been made correctly along the bounds of the property belonging to the State, and if the bounds of private property are accurately laid down or noticed.

18 Q. (By the committee.) What was the object of the legislature in directing that survey to be made?

A. It must have been to define the property of the State along the canal, by such means as would afford proper evidence at any time hereafter, if any litigation should arise with regard to the line dividing the property of the State from private property.

19 Q. Was that design coupled with an intention to ascertain private encroachments on the public land along the line of the canal?

A. In my opinion it unquestionably was.

Professor JOSEPH HENRY, was sworn as a witness on the part of Mr. Hutchinson. Mr. Henry was called to testify in reference to the variation of the magnetic needle as connected with land surveying; he is a gentleman of high attainments in magnetic science. The design seemed to be to shew that little reliance can be placed on the designation of boundary lines, run by means of the circumferenter, or surveyor's compass, because of the variations to which the magnetic needle is subject; in order as the committee understood, to draw therefrom the conclusion, that, Mr. Trumpbour's survey could not be relied upon, because he had run out the boundary lines

by the chain and compass, with courses and distances on the ground; notwithstanding he had noted and designated the same with the usual references to permanent visible objects, and setting stakes where they were needed, if no more permanent object was sufficiently near for that purpose; but Mr. Henry's testimony, while on the one hand it fully shows the variations of the magnetic needle, yet on the other, it as clearly shows, in the opinion of the committee, that the usual method of surveying boundary lines by the chain and compass and designating them by proper land marks on the ground itself, is the best method in use among us. The following is from the latter part of his testimony: depositions No. 28.

17 Q. Would it not be more safe in the location of property in different places of the earth, where permanent objects are given to ascertain the variation of the magnetic needle by those permanent objects, than to be dependent upon the true meridian in all resurveys to be made in the neighborhood of such permanent objects?

A. It is best to depend as little as possible upon the magnetic needle, and to be governed by the permanent objects noted in the preceding survey.

18 Q. By the committee: Could the true astronomical meridian be determined without the aid of celestial observations of some body having a determinate place in the heavens ?

A. No.

19 Q. By the committee: Suppose you were to run a new line, how would you do it, by the magnetic needle or the true meridian?

A. If I were to run a line with a common circumferentor, I would run it from point to point as the needle directed, and mark such permanent objects as might be found in its course; if none existed on the line, I would take an angle and distance from each extremity to such permanent objects as were near, and as surveyors generally do, so that it might be retraced without regard to the magnetic variation at any future time. By this means the line would be rendered, independent of the variations of the needle.

These questions were propounded for the purpose of placing in evidence the well known fact, that neither the astronomic meridian,