No. 318, it appears that the petitioner then claimed to be the son of Henry Kane, and that his said father enlisted in the year 1777, into Capt. McKean's company. Accompanying the petition in 1830 was an affidavit of Christian House, and another of David Hinmore, both of whom testified that they were acquainted with one Henry Kane in the years 1778 and 1779, who was then a soldier in Capt. McKean's company, and that he died about fifteen years after the close of the war, in the county of Montgomery. The committee then state, "that they have examined among other documents the register of the New-York regiments, now in the Secretary's office, but they cannot find the name of this soldier in the register of McKean's company; but they do find that a man by the name of Henry Cain enlisted in Capt. Copp's company in the year 1777, and was taken prisoner in 1779;" that from the circumstance that "the name of the petitioner's father is spelled different from that of the soldier in Capt. Copp's company, and from his having been in Capt. McKean's company, that committee came to the conclusion that the soldier returned was not the father of the petitioner.

But this difficulty upon the face of the present petition and the accompanying documents, seems to be overcome, for it is now stated that the name of the petitioner's father was Cain, and that he enlisted into Capt. Copp's company in 1777, and was taken prisoner 1779, corresponding therefore in all the important particulars with the soldier named in the said report of 1830; but how this soldier came to be described in 1830 in the manner in which he was, and now differently, has not been explained. The committee are of the opinion that the doubts which the committee entertained in 1830 are strengthened now, rather than overcome. And until satisfactory explanation shall be given, and the doubts removed which appear to have been reasonably entertained, the committee are of opinion that the claim cannot be entertained.

It is a fact worthy of notice, that the name of Henry Kane is not registered among the soldiers of the revolution; and hence the legal and reasonable conclusion that there was no such soldier. This idea, too, is strengthened by the fact that no claim is made for the bounty land or services of this man, who is now claimed to have been a soldier, until after his death, and that of most others who might have given information in relation to this demand. It appears, too, that the father of the petitioner was poor, and in des

titute circumstances, and that he lived in the county of Montgomery continually, after the close of the war, until his death, in 1811. It is thought quite extraordinary, that one so circumstanced, having a right to the demand now set up, should have so long toiled in penury, while there remained for him in store, and so near at hand, a munificent reward for his eventful services. But yet all these conclusions are liable to be overcome by testimony; and when they are, the committee apprehend no one will be disposed to withhold the promised reward.

It does not appear from any testimony before the committee that Henry Kane, who, in 1777, was a soldier in Capt. McKean's company, was the same Henry Cain, who was the soldier at the same time in Capt. Copp's company. If the allegations now made, and also those which were advanced in 1830, are to be relied on, and it would be quite uncharitable to say they were not, then it follows that in 1777, there was a soldier in Capt. McKean's company by the name of Henry Kane, who, 1779, was taken a prisoner by the Indians, and carried into Canada, where he remained until the close of the war, and then returned to the county of Montgomery, where he continued to reside until his death, in 1811. And also, that there was a soldier in Capt. Copp's company the same year, by the name of Henry Cain, who was also taken a prisoner by the Indians in 1779, and carried to Canada, where he, too, remained until the close of the war, and then returned into Montgomery county, and died there in 1811.

Under all the embarrassments attending this claim, it is quite obvious then, that further explanation is due from the petitioner, before he can be entitled to the relief sought for. Entertaining the views herein before stated, the committee offer for the consideration of the House the following resolution:

Resolved, That the prayer of the petitioner, John Kane, ought not to be granted.

IN ASSEMBLY,

March 11, 1833.

REPORT

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 refer red 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.]

1

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 becomẹ necessary, by which private rights are infringed, it would seem to be an obvious dictate of justice to provide a means of remuneration; 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.