These are believed to be among the great objects which the Legislature sought to effect by this survey; the plan, therefore, which best secures this result must be the most meritorious, and entitled to the preference.

The Canal Board, in their report, Assembly Documents, No. 188, March 7, 1832, page 2, say, "The members of the Canal Board met informally, in the winter of 1830, and at the request of Mr. Seymour, consented to hear the representations of Mr. Trumpbour and Mr. Hutchinson, in relation to their respective plans for surveying and mapping the State canals, and examined rough drafts and sketches which were submitted; but did not, as a Board, express any opinion, take any vote or give any directions in relation to this matter. By referring to the statute authorising this survey it will be seen, that this subject is not properly before the Canal Board, until the Canal Commissioners shall have compiled the maps and field notes, and submitted them for their approval."

It must be observed, however, that the statute requires the Canal Commissioners to cause all necessary surveys to be made for the purposes of the act; hence it would seem to be their duty to provide a plan for the surveys, in conformity with the provisions of the statute; and although the Board of Canal Commissioners did at first agree to, and lay down a plan for that purpose, with sufficient clearness and precision, as appears by the resolution herein before set out from their minutes; yet they seem incidentally to have afterwards lost sight of it, and to have approbated Mr. Hutchinson's plan of surveying the tow-path instead of the boundaries, but without expressing any decisive opinion thereon; this has no doubt occurred through misapprehension or oversight, in relation to the requirements of the statute; or, what is perhaps more probable, from not fully comprehending the nature of Mr. Hutchinson's survey.

This brings us round to the point of departure, where we craved the liberty of stating a few facts before we followed Jacob Trumpbour into the field, for the purpose of seeing the manner of his executing the survey; and for this we submit no other apology than that it seems to be necessary to the ends of justice.

It is sufficiently proved that, at the time of entering into the contract, there was one or more conversations between Jacob Trumpbour and Holmes Hutchinson, respecting the delineation or plan upon which the surveys of the canals should be conducted. There

was not any person present at those conversations, who has been examined as a witness, except the parties themselves; and they disagree respecting it. Mr. Hutchinson asserting that Mr. Trumpbour agreed to adopt such plan as he should thereafter mature and pursue ; and Mr. Trumpbour alleging, that Mr. Hutchinson agreed to adopt the plan upon which he has executed his survey.

However this may be, it appears that after the contract was made for dividing the survey between the memorialists, sometime before commencing the work, probably in the month of May, Jacob Trumpbour, when on his way to the west, called on the SurveyorGeneral and consulted him respecting the manner of surveying the canals; and explained to him the principles of his plan, and received his approbation; the Surveyor-General being one of the Commissioners of the Canal Board, and as the committee think, the proper officer to be consulted, subject to the authority delegated by the act to the Canal Commissioners to cause the necessary surveys to be made. The plan which he then made known to the Surveyor-General was the same upon which he performed his survey of that part of the canals so set off to him.

In proceeding on he met with Henry Seymour, acting Canal Commissoner, at Rochester, and returned with him from thence along the line of the Erie canal, to Port Byron, and shewed him the above agreement made by him and Holmes Hutchinson; and he then received from Mr. Seymour his instructions in relation to the lands to be set apart for the use of the canals. He also explained to Mr. Seymour the plan of survey which he intended to pursue, to which Mr. Seymour made no objections. Afterwards, when he had just begun the survey, Mr. Seymour, who was superintending the canal, passing along for that purpose, came where Jacob Trumpbour was actually engaged in surveying the boundaries of the canal, saw him at work there, and was again informed by Mr. Trumpbour as to the nature of his plan of survey, and approbated the He also gave Mr. Trumpbour further instructions for the performance of the work.

same.

The authority to make the surveys, being delegated by the statute to the Canal Commissioners, the directions given by them for that purpose before the work was begun, must therefore be regarded as within their legitimate authority under the act; and as a sufficient guide for the surveyor in the performance of the work. This di

rection Mr. Trumpbour received, and performed his work accordingly.

After Mr. Trumpbour had performed about eight miles of the survey of the Erie canal, he having commenced at Port Byron on the twenty-fourth day of June, 1829, he fell sick, and his survey was suspended thereby until some time in the month of August in that year. During the time of that suspension, Mr. Hutchinson came to see him on the canal at Port Byron, and while there, they entered into conversation on the subject of the survey of the canals. In this conversation Jacob Trumpbour explained to Holmes Hutchinson his manner of making the survey. He drew a sketch upon paper to show the manner, and with that explained to him, that he run a line on both sides of the canal. He also stated to Mr. Hutchinson that whenever he came to buildings encroaching upon the line of the canal, he noted them, and marked the number of feet they stood on the line he run. He explained to him how much he took on the tow path side, and also on the berm side, and stated to him that he took a check line across the canal to the station opposite as often as convenient; so as not to let one survey run ahead of the other, to keep the survey in check on both sides, and prevent mistakes. He also stated to him that he took an observation to a more permanent object than the stake itself, as often as he found such an object sufficiently near to the line, and noted the course and distance of those objects in his field book, to which Mr. Hutchinson did not make any objection, nor suggest any other method of survey. Sec William C. Trumpbour's deposition, No. 9, where it is also stated that Jacob Trumpbour pursued this plan throughout his whole survey, and finished his proportion of the canals sometime in or about the month of August, 1830.

In the mean time, about the middle of September, 1829, Mr. Hutchinson employed Edwin F. Johnson to survey the Champlain canal, and that part of the Erie canal which lies east of Canastota, who commenced the survey about the middle of October in that year. See the deposition of Edwin F. Johnson, No. 6, in the first part of it. Mr. Johnson being inquired of in regard to the plan upon which Mr. Hutchinson's survey was projected, whether it was suggested to him, or he first suggested it to another? see interrogatory 12, he answered. It was devised I believe, principally by my. self, at the request of Mr. Hutchinson; and in the answer to the

next question he states the time when this plan of survey was adopted not to have been later than the 15th or 20th of September.

It also appeared that, at the time this new plan was adopted and made known to Mr. Trumpbour, he had surveyed about fifty miles of the canal on both sides of it; so that he had made a hundred miles of his survey of the boundaries, the labor and expense of performing which equalled that of two or three hundred miles of survey on the plan of Mr. Hutchinson.

Mr. Hutchinson having at this stage of the business determined, (whether inadvertently or otherwise, the committee suggest no opinion,) not to run out the boundary lines, and that fact being made known to Mr. Trumpbour, occasioned the present controversy between them.

As soon as Mr. Hutchinson had adopted the plan of surveying the towing path instead of the boundaries, and had ascertained that the majority of the Commissioners were disposed to approve of that plan in preference to the boundary survey, he required Mr. Trumpbour in like manner to change his plan, and to adopt the tow-path survey. To this Mr. Trumpbour could not be brought, neither by the authority of the Commissioners, nor by the influence or kind offers of Mr. Hutchinson to be at half the expense of the re-survey of that part of the canal which Mr. Trumpbour had already gone over, which at the time of this offer amounted to about one hundred miles of the canal, and for that distance the lines were run out on both sides. This being refused by Mr. Trumpbour, it was deemed necessary to dismiss him, as appears by the letter of the Board of Canal Commissioners to the chairman of the committee on canals and internal improvements, adopted, or rather referred to, by the Canal Board as part of, or sustaining their report; (Assembly Doc. No. 188, pages 6 and 9, for 1832,) where it is said, "The u.emorialist, (Jacob Trumpbour,) has, with great assurance, condemned Mr. Hutchinson's plan of surveying and describing the canals. His plan, as well as Mr. Trumpbour's, was submitted to the consideration of the Canal Board in the winter of 1829 and '30, and although there was no distinct opinion expressed by the Board, it is believed that a majority of that body gave a preference to the plan adopted by Mr. Hutchinson."

"The Commissioners have been anxious for a long time to adjust this controversy, and have made every effort for that purposeR [A. No. 334.]

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which they thought consistent with the interest of the State, and the rights of the other parties. And Mr. Hutchinson, in the winter above mentioned, generously offered to be at one-half of the expense of a re-survey of the work done by Mr. Trumpbour, in order to produce uniformity; but this has all been to no purpose; the memorialist has been stubborn and unreasonable, and has been determined to force his services upon the State, and to do his work in his own way; and even after the written notice from one of our number, given with our entire concurrence, that he must discontinue his labors upon the public works. For the services which he performed before this notice, he has received from Mr. Hutchinson $500, including the amount of the note taken by Mr. Seymour, which Mr. Hutchinson now holds, and intends to apply in his settlement with Mr. Trumpbour. With what propriety he can ask compensation for services not required, but expressly forbidden, we leave to the opinion of the committee, and the decision of the Legislature."

The written notice above mentioned to have been given by one of the Commissioners to Jacob Trumpbour, requiring him to discontinue his labors on the public works, and which had the entire concurrence of the other Commissioners, the committee understand to be the following letter, written by Henry Seymour, in the month of May, 1830.

"JACOB TRUMPBOUR, ESQ.

"Your letter of the 20th inst. has been duly received. After having been so often informed that your difficulties with Mr. Hutchinson must be arranged before the Canal Commissioners would enter into any contract with yourself, I am not a little surprised that you should now announce your intention of recommencing the surveys of the canals without reference to those indispensable preliminary conditions. The Commissioners consider Mr. Hutchinson as the sole contractor for the survey of the canals, will hold him responsible for its due performance, and will pay him, and him only, for the expense of its completion. Your having failed to make such an agreement with Hutchinson as was contemplated and required, before the Commissioners could contract with you for any part of this work, you must consider yourself entirely unauthorised to enter upon the execution of it, and must abstain from any further proceeding in relation to it.

"Respectfully, your obedient serv't,

"HENRY SEYMOUR,

"In behalf of the Canal Commissioners.