How far the language of this letter could be legally addressed to Jacob Trumpbour, after he had been regularly contracted with and employed to survey the portion of the canals set off to him in the contract; after he had been permitted to enter upon the execution of the work; after the plan which he had adopted for the performance of the survey had been approved by the Surveyor-General, by the acting Canal Commissioner, superintending the works of the canal on the ground itself, at the time when Mr. Trumpbour was actually engaged in running out the boundary lines, and after the plan had been fully explained to Mr. Hutchinson and acquiesced in by him, is a question which the committee respectfully submit to the house; but for themselves, they are unanimously and decidedly of the opinion, that that letter ought never to have been written under the circumstances of this case, as they stood at the time.

The agreement which it is alleged in the latter part of the pieceding letter, Mr. Trumpbour had failed to make with Mr. Hutchinson, as was contemplated and required before the Commissioners could contract with him for any part of this work; and for the not doing of which, he was required to consider himself entirely unauthorized to enter upon the execution of it, after he had done the greater part of the survey, was relative to the plan upon which the survey had been and was to be conducted. If he would have abandoned the survey of the boundaries, and adopted, in concurrence with Mr. Hutchinson's requisition, the survey of the tow-path, this letter would not have been written to him. The difficulties with Mr. Hutchinson, which it is said must be arranged, is the same question about the plan.

There is also a statement in the letter of the Canal Commissioners above cited, page 8, that "the two acting Commissioners, with a desire to gratify the memorialist, agreed to such a division, provided Mr. Hutchinson could be induced to relinquish a share of his contract, and would agree with Mr. Trumpbour upon a uniform plan of executing the work. It was with this understanding, and with the further condition that the maps should be made on a uniform plan, at Utica, under his immediate direction, that Mr. Hutchinson consented, on the request of the acting Commissioners, to allow Mr. Trumpbour to take one half of the contract."

In reference to the conditions above mentioned, the committee remark, that Mr. Hutchinson did agree to divide the contract with Jacob Trumpbour, the proof of which has been set out. In the next

place, Mr. Hutchinson is required to agree with Jacob Trumpbour to a uniform plan of executing the survey. This the committee think Mr. Hutchinson did, when he acquiesced in the plan of survey disclosed and explained to him in August 1829, by Mr. Trumpbour, as stated in the deposition of William C. Trumpbour, above cited. The remaining condition, "that the maps should be made on a uniform plan, at Utica, under his immediate direction, that Mr. Hutchinson consented, on the request of the acting Commissioners, to allow Mr. Trumpbour to take one half of the contract."

The committee think that Mr. Trumpbour is to be considered as having actually conformed to the two first of these conditions; and as to the third, he has been prevented from accomplishing it by the obstacles which have been cast in his way, for the purpose of compelling him to change the plan of his survey; so that his maps have not yet been made, and he therefore is not to be considered as in default in this case. It is understood that he did agree to make his maps at Utica; but Mr. Hutchinson has directed his maps to be made at Middletown in the State of Connecticut. The map of the Champlain canal, made by or under the superintendence of Mr. Hutchinson, was made at Middletown, and not at Utica; so that, in the opinion of the committee, there is no reason to set up these points against Mr. Trumpbour, nor indeed any of them.

It has also been urged that Mr. Trumpbour ought to have given security, and to have made a written contract. There is no evidence that Mr. Hutchinson was required to enter into any other contract than that which has been before set out. It does not appear that either he or Mr. Trumpbour, in making the original contract, was required to give any security, or to enter into any more formal contract than is herein before specified and proved to have been entered into: And the committee are constrained to believe, that the requirement of a written contract, and the giving of security, would never have been made a question, if difficulties had not subsequently arisen about the plan of surveying the canals; and that these points became questions only after Mr. Hutchinson had thought of a different plan for the survey, from that upon which Mr. Trumpbour, with the approbation of the Surveyor-General, the acting Canal Commissioner on the ground, and finally of Mr. Hutchinson himself, had previously began his survey.

The committee think that these facts sufficiently appear in the depositions; and that the deposition of Holines Hutchinson, No. 30,

taken in connection with the memorandums mentioned in it, shews on what ground the offer of Mr. Hutchinson to be at half of the expense of making the re-survey, was made.

The contract about which so much has been said with regard to the means of enabling Mr. Trumpbour to obtain, after he had performed a hundred miles of the survey under his contract already made, seems to be a contract for re-surveying, on the tow-path plan, that part of the canal which he had previously surveyed on the actual boundaries; and which he refused, notwithstanding the offer of two hundred dollars made by Mr. Hutchinson, as appears by the deposition last cited, and the memorandum X. therein mentioned.

With respect to the permanency of the inner edge of the towing path, and its fitness to serve as an immutable monument by which to correct the variation of the magnetic needle, as has been gravely urged against Mr. Trumpbour's plan of survey, and against the stability of all monuments not connected with the canals, the following passage is from the deposition of Col. Bouck, one of the acting Canal Commissioners :

"28 Q. Is the inner edge of the towing path a more permanent line than the division line between the public and private lands along the canal?

"A. The bounds between public and private lands along the canals are ascertained, as I suppose, by measuring from the base line, and are only liable to the same variation that may occur to the base line. When the tow-path is washed or wasted, we repair on the inner edge, so as to preserve the original shape.

"31 Q. What circumstances do you allude to?

"A. The variation or correctness of the compass might be ascertained by the inner edge of the towing path, when that was found to retain its original shape and position."

The following extract is from the deposition of Walter Osborn, a witness sworn on the part of Jacob Trumpbour:

2 Q. Have you had opportunity and occasion to notice the variations of the inner edge of the towing-path, from time to time; and have you noticed any such variations? State particularly.

A. I have had occasion to notice the towing-path particularly, and the variation of it near Buffalo is very great: or rather being sand, it is washed all away pretty much; so that they have in one place moved it back the whole width of it, for a distance of thirty or forty rods at that point. Also on the Tonawanda creek, the towpath is varied and very much washed in places, not being walled or timbered. When the creek rises it soaks the banks, and in many places they are washed away half the width of the towing-path. Also along the Niagara river, not being walled or timbered, it is varied considerably, the banks being washed away. From Black Rock lock to Pendleton, for the distance of twenty miles, there is not to exceed a hundred rods of the banks secured by any wall or covering. The towing-path of this part of the canal is most liable to variation. See his deposition, No. 20. He was not acquainted with the whole line of the canal; and it appears by his statement that in some places the towing path is timbered up to protect it from injury.

In relation to repairs and the preservation of the towing-path in its original position, he stated, in answer to the third question:

"Have the repairs of the towing-path, so far as you have observed, in all cases restored its inner edge to its original shape and position? State particularly your knowledge upor that subject.

A. In timbering the face of the banks, I have been instructed by Mr. Bouck, the Canal Commissioner, to place it as near to the bank as it then stood, as could be well done, to avoid the expense of bringing earth to fill it up as it originally was, which I did.

4 Q. Is the angle of the inner edge of the towing-path generally preserved, or is it worn off by the treading of men and beasts, by rains, and by the wearing of the towing lines, or other causes? State its situation as particularly as in your power.

A. It has worn off, particularly at those places where it has no been walled or timbered.

Here then we see, that if the admission of Col. Bouck, that if the plan of surveying the tow-path renders the boundaries between the public and private property subject to the same variation that the inner edge of the towing-path is liable to be correct, then the bounds of the public and private property along the lines of the canals for a thousand miles, with all their buildings, fences and improvements, would be liable to be rolled backward and forward to keep course

and distance with the inner edge of the towing-path, as it may hap

pen to be varied by the lesions of time, the abrasions of usage, the washings and wastings of floods, or shifted by the casual alluvions which so naturally and frequently occur. Whereas, if the bounds were once fixed upon the plan prescribed by the statute, they would be as immoveable as the bounds of the State itself.

The committee cannot say but that Col. Bouck's opinion above referred to, may be correct, as it regards the variations of the base line; for as no means of accurately locating this line is given but at the locks, which in several instances are at great distances from each other, and in the case of the long level is understood to be sixtynine miles, the intervening distance must be run or re-surveyed by the compass, and consequently the variation of the magnetic needle will be as much felt in running that line as any other. How, then, can a boundary question be settled under such circumstances without a new survey?

It is supposed to be important to explain the transaction respecting the promissory note and receipt which Mr. Seymour took of Mr. Trumpbour when he paid him the two several sums of $250, amounting to five hundred dollars, which receipt, and promissory note, Mr. Seymour afterwards endorsed over to Mr. Hutchinson; as this tends to cast an appearance upon the transaction as if Mr. Trumpbour was subordinate to Mr. Hutchinson. Upon examination, however, this circumstance seems to be sufficiently countervailed and answered; and the reason for this course of conduct towards Mr. Trumpbour, is elucidated and shewn to have arisen from the circumstantial and material difference between him and Mr. Hutchinson, about the plans on which Mr. Trumphour was surveying, and Mr. Hutchinson was about adopting for his survey. The following extract from the above mentioned letter from the Board of Canal Commissioners to the chairman of the committee on canals and internal improvements, documents of the Assembly of 1832, No. 188, page 8, is deemed important in aiding us to understand the nature of the questions raised by Mr. Hutchinson.

"The present difficulty with the memorialist, (Mr. Trumpbour,) has arisen from a disagreement between him and the former gentleAfter Mr. Trumpbour's second proposition had been rejected, he was desirous that the survey should be divided, and that he should be permitted to take one half of it without the consent of Mr.

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