of Letchworth Park; and the representative of several property

owners.

The report, after a brief statement of the physiography of the Genesee valley, reviews the facts concerning the fluctuations in the volume of the flow and their effect on riparian properties, particularly the properties in Rochester using water power; and recalls the futile attempts at regulating the stream by private initiative beginning in 1890 and including the organization of the Genesee River Company for that purpose. The petition of the Board of Supervisors of Monroe County, dated September 5, 1908, for regulation under the River Improvement Act, is given in full. Under that act, the Commission made surveys and prepared plans for a storage reservoir with a dam 152 feet high just above the uppermost of the Portage Falls and partly in Letchworth Park. The reservoir was designed to cover an area of thirteen and onehalf square miles and impound 19,000,000,000 cubic feet of water. The topmost nineteen feet of depth of the reservoir was calculated to catch the flood waters; and the remainder was designed to maintain a minimum flow of 1,240 cubic feet per second during the summer. This regulated flow, diverted through the power tunnels around the Falls, was estimated to be capable of developing 30,000 horse power below the Falls and to add 18,000 horse power to the resources of plants at Rochester utilizing the regulated flow. The total cost of building the reservoir (but not including the tunnel or plant for utilizing the power) was estimated at $4,588,000. If the proposed improvement were made, this amount would be assessable upon the lands benefited. The Commission therefore made a tentative assessment, by which 7.2 per cent. of the cost was laid upon various counties, towns, villages and cities, and 92.8 per cent. upon individual properties, including corporations and power plants.

In order that the complications of the situation may be more readily understood, the Commission recalls the act of the Legislature of 1907 (chapter 569), directing the Commission to investigate the water power possibilities of the whole State, and the studies and reports of the Commission under that law. The Commission came to the conclusion that a bill for the systematic development of the water powers of the State was necessary and

that it would be unwise to attempt to regulate the Genesee River under the River Improvement Act. Unless the regulation could be justified on the ground of public health and safety, therefore, the Commission felt that it would be constrained to deny the application. The Commission refers to the testimony given concerning floods and sewage and says that the greater part of the evidence given supported the justification of interference upon those grounds, but notes the contention of the opponents that the menace to public health and safety was not such as to warrant interference under the law under which the proceedings were brought.

But assuming that action was warranted on those grounds, the question arose whether the improvement could be carried forward under this law; and the answer was complicated by the existence of Letchworth Park. The report recites some of the facts connected with the gift of the park to the State and its acceptance by chapter 1 of the laws of 1907. The report continues:

"The American Scenic and Historic Preservation Society, and owners of property near Portage, arrayed themselves against the project upon the ground that to build a dam across any part of Letchworth Park would be a violation on the part of the State of the contract made with Mr. Letchworth when it accepted the deed of his property for park purposes. The deed conveying this park to the state contains the condition that the property shall be forever dedicated to park and reservation purposes, and the act accepting the park ratifies and confirms the conditions."

The Commission says that the proposed dam, if built, would cross the river about 500 feet above the Erie Railroad bridge, and would submerge a narrow strip of park land about 500 feet long,* the value of which to the park the report disparages.

The report then continues:

"It must be conceded that in order to justify the execution of the proposed plan, and the assessment of a large proportion of the cost thereof upon power that might be developed at the falls, the stored water, except a minimum flow of 150 cubic feet per

* These measurements are evidently inadvertences. Letchworth Park stretches along the river for a distance of 3,500 feet or more up-stream from the Erie Railroad bridge, lying on both sides of the stream for a distance of about 1,200 feet and on only one side for the remainder of the distance. The so-called "Rafter site" for the dam is a little over 1,200 feet up-stream from the bridge, and would flood a strip of parkland about 2,300 feet long.

second during the daylight hours, must be diverted from the natural river channel into a conduit carried around the park, to be used in developing electrical power below the falls. Such a diversion of the water of the river, it is claimed by those opposing this project, is a direct violation of the provisions of the Letchworth deed and also that such a diversion could be prohibited by injunetion proceedings.

"It is clear that the dam could be so built and the face of the wall so finished and decorated as to make it a thing of massive grandeur, the reservoir created above the park made an attractive lake and as much water permitted to flow over the falls during the daylight hours as usually flows over them during the summer and fall months.

"The question then arises, will the use of the land in this manner and a diversion of the greater part of the water from its natural channel through the park be a violation of the trust and contract? If it would, then the building of the proposed dam is prohibited, unless the state is willing that the park and gift of Mr. Letchworth shall revert to his heirs, or be subject to an action by the American Scenic and Historic Preservation Society, the present custodian of the park, to permit such use.

"The American Scenic and Historic Preservation Society and other persons insist with much force and learning, that it would defeat the trust, while the petitioners contend with equal force and ability that the building of the dam at the point proposed, although it will completely cover the north part of this narrow strip of land, will not defeat the conditions of the trust. These opposing parties also made the following other objections, to wit: "First, that no menace to the public health and safety has been satisfactorily shown, and therefore the Commission has no jurisdiction to proceed.

66

Second, that the main purpose of the petition was to bring about the development of water power, and that the Commission has no authority to issue bonds or lay assessments upon property for that purpose.

"Although the River Improvement Law as passed, and this application as presented, are for the preservation of the public health and safety, the fact remains that both the purpose of the law and the application have linked these proceedings with water power development. This point is emphasized by the fact that the admitted costs of the enterprise make its execution impossible without the payment of the major per cent. of the total cost by water power owners.'

The report proceeds to give calculations as to the value of the water-power possibilities of the Portage proposition and then dis

cusses the question of what proportion of the cost should be borne by the farm lands and city property benefited and what proportion by the power owners. This phase of the subject is complicated by the fact that while the metes and bounds of the real estate benefited can be ascertained, the water power rights which would be benefited and upon which a proper proportion of the assessment should be laid were elusive. The Commission found itself in doubt as to the respective interests of the owners of water power in the City of Rochester, as to the water rights of the Genesee River Company, and even as to the water rights of the State itself, which latter should bear their due proportion of the assessThe Commission therefore asks itself:

"Can we afford to stretch the River Improvement Law to such an extent? Can we afford to permit the rights of the State to the water power on the river to be wiped out? Can the City of Rochester afford to have the value of the regulated flow of the river which has contributed so much to its prosperity pass from the State to the corporation which now controls 8712 per cent. of the water rights on the river? We think not. Cannot the farmers in the Genesee valley, the real property owners in the City and the City itself well afford to await the passage of a law as recommended by the State Water Supply Commission or a wiser one that will provide for a general and systematic development of the water powers of the State for the general welfare?

"Nothing short of State ownership and control of the undeveloped great reservoir sites to be used for the present and to preserve for the future that which belongs to the future, measures up to the demands of this generation. This Commission has spent a great amount of time and a large amount of money in studying the subject; it has expressed its opinion upon the economical importance of real State conservation and the value of such a step to the prosperity of this commonwealth.

"To give its consent to the application of the petition in this matter, surrounded as it is with so many objectionable questions, would be a disregard of our previously expressed opinion and to overlook the demands which the conservation movement has made upon our age.

"On account of the impracticability of regulating the flow of the Genesee river and making the assessments for the cost thereof under the River Improvement Act, and the wider objection that an attempt to conserve the water powers of the State under such narrow limits will impede the greater movement in behalf of a

1234

general systematic development of such power for the general welfare, this application is denied."

The late Water Supply Commission is to be commended for the immense amount of painstaking work which it has performed on the general subject of water storage and also for the clearness with which it has defined two or three of the main issues in the Portage Dam case. If the Genesee River problem were simply one of conserving the public health and safety, it has been shown by the reports of engineers that those ends can be attained by the construction of a dam in the gorge between Letchworth Park and Mount Morris, which will in no way injure Letchworth Park. As a matter of fact, the location at Portage turns entirely on its power resources, and it is doubtless a satisfaction to the parties on both sides of the question to have the proposition thus clearly defined and not longer continued under the guise of a public health and safety measure. The issue now is the balance of public interests involved in Letchworth Park and in power development at Portage. It is our wish that this question may be fairly determined on the side which will conduce most largely to the public welfare.

Financial Statement.

Following is a statement of State Funds disbursed on account of Letchworth Park up to April 1, 1912.

(Appropriation, Chapter 811, Laws of 1911, $4,000.)

C. Bishop, Superintendent, October, and disbursements..

Chaffee, Rowe & Kennedy, oats, etc...

Frederick Carlson, labor

Castile Hardware Co., bathroom installation.

Carried forward

$73 20

38 90

50 90

166 88

$329 88