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March 11, 1833.
Of the committee on claims, on the petition of Uriah
Shearer, praying compensation for the destruction of his fishery, occasioned by the erection of the Saratoga dam.
Mr. Russell, from the committee on claims, to which was referred the petition of Uriah Shearer, of the county of Chautauque, praying compensation for the destruction of his fishery, in the town of Northumberland, in Saratoga county, occasioned by the erection of the Saratoga dam, REPORTED:
The petitioner alleges, that previous to and at the time the Saratoga dam was erected across the Hudson river, to improve the navigation at the north, he owned a farm lying above said dam, upon each side of the said river, a portion of which was intervale, and was flowed by the erection of that dam; that upon this farm was a fishery which added much to the value of the farm; that it was mostly situated in the town of Northumberland, in the county of Saratoga; that in 1829, the canal appraisers came on to ascertain his damages, and he presented his claim for the injury occasioned by the inundation of his land, as well as for the loss of his fishery. But the appraisers solicited him to withdraw his claim for the destruction of his fishery, upon the ground that a question involving the same principle was then pending before the court for the correction of errors; and until that was decided, they were unwilling to appraise damages for injuries of this description; in consequence of which, the claim was withdrawn, and his damages appraised for the injury to the intervale lands above, and a receipt given in full, except for the damages to the fishery, which is ex[Assem. No. 238.]
pressly excepted in the receipt. These allegations have been fully sustained by the testimony introduced before the committee.
The question then which presents for consideration is, was this fishery the private property of the petitioner? It was situated upon the Hudson river, above where the dam was erected, and above the navigable waters, and the petitioner was the owner of the land upon each side of the stream. Under these circumstances, the committee are of opinion that he was the owner of the whole river to the extent of the length of his land upon it; subject, however, to the right of way which the public had over it; this right drew to it every appurtenant connected with the use of the farm, of which the exclusive right of fishing was one. It may well be asked, who had a right to appropriate this fishery to his or their own use, but the owner of the land? If this then was a right appurtenant to the farm, should it not be held as sacred as that of any other private property? If, in the course of the vast improvements which characterise the present age, artificial erections become ne. cessary, by which private rights are infringed, it would seem to be an obvious dictate of justice to provide a means of remunera. tion; and the committee have not been able to discriminate between the case now presented, and such as arise from an appropriation or destruction of any other property.
Under these impressions, the committee have come to the conclusion that this claim ought to be sent to the canal appraisers, and have prepared a bill for that purpose, and now ask leave to introduce the same.
March 12, 1833.
COMMUNICATION From the Governor, transmitting a copy of a pream
ble and resolutions passed by the Legislature of Ohio.
TO THE ASSEMBLY.
I herewith transmit to you a preamble and resolutions passed by the Legislature of the State of Ohio, on the subject of the South Carolina Ordinance. Also a resolution of the same Legislature, expressing its opinion of the inexpediency of calling a convention to amend the Constitution of the United States. Also a resolution of the same body approbatory of the proclamation of the President of the United States, of the 10th of December last.
W. L. MARCY. March 11, 1833.