FISHERIES, GAME AND FORESTS. 389 



The dam is located at Stillwater, on the Beaver River, in a direct line three miles west of the 

 west line of the e^st third of Township 5. 



Township 5 is divided into thirds — the east, west, and middle thirds, so called. The east, and west 

 third of Township 5, the whole of Townships 43, 37, and 38, Totten & Crossfield Purchase; all of 

 Township 42, Totten & Crossfield Purchase, except the middle tier of lots (the James Lots), and 

 the whole of Township 8 (Brown's Tract), were owned by one and the same ownership at the time of 

 the construction of the dam originally. (See abstract of title.) Webb had purchased all, including 

 the James Lots, the middle tier of lots in Township 42, before the building of the second dam. 



The damages occasioned by the dam were not reserved when Webb purchased (see deeds), and 

 hence went to him as part of the land. Damages represent the land, and as between grantor and 

 grantee, go to the grantee unless specially reserved. 

 Sec. 318, Lewis on Eminent Domain; 

 Magee vs. City of Brooklyn, 144 N. Y. 



Part of the James Tract was submerged by the raising of the dam in 1893, pursuant to the 1892 

 legislation. A portion of the rest of the tract was submerged by the first dam, which was increased 

 by the second dam. 



It is to be noticed that the dam is located on the west third of Township 5, near Mrs. Fisher's 

 line. The first dam flooded the water back across the middle third of Township 5 (Mrs. Fisher's 

 land) and upon the east third of Township 5. 



(4.) Area and Dimensions of Reservoir on claimant's Lands. 



{a.) First dam. The first dam flooded an area of 275 acres on the east third of Township 5, and 

 set the water back in the river nearly up to the outlet of the Red Horse Chain. 



(b.) Second dam. By the rebuilding of the dam under the act of 1892, the water is set back in a 

 direct line upon the claimant's land for a distance of five and three-quarter miles (testimony D. C. 

 Wood), and by the windings and turnings of the river, for a distance of ten and one-half miles. 



The first dam flooded an area of 275 acres; whereas, by the rebuilding of the dam, a total area 

 of claimant's land of 1,327 acres is flooded. (Testimony D. C. Wood and C. E. Phelps.) 



((. ) Width pf Reservoir. The average width of the reservoir upon the claimant's land is 1,125 

 feet. (Testimony D. C. Wood.) The original width of the river upon claimant's land was 

 fifty feet. 



(4.) Maimer of the construction of the dam. 



Attention is directed to the manner of the construction of the dam. 



The dam is constructed without any regard whatever for lumbering purposes. The dam is con- 

 structed fourteen feet high. It is 149 feet across. It is supplied with three gates, which are raised 

 from the bottom by means of a screw. It is built of timber laid in tiers like a pair of stairs with the 

 steps outward. It is built without any lumber chutes or aprons whatever, and no means are supplied 

 for taking logs past the dam. This can be determined by any one on inspection. Obviously, logs 

 will not go through gates at the bottom of a dam. Logs naturally float, and to go through gates at 

 the bottom of a dam it would be necessary for them to dive, which is contrary to all experience. 



To meet this obvious difficulty in getting logs past the dam, because chutes and aprons had not 

 been provided, the learned Attorney-General suggested that logs might be floated across the top of 

 the dam ; and some of his cross-examination of claimant's witnesses was upon the theory that logs 

 could be floated over the top of the dam. 



(5.) Impracticable to float logs over the top of the dam. 



JOHN McFARLAND testified that one could not get over the dam with logs. 



WILLIAM McECHRON testified upon cross-examination, as follows: 



Q. You have examined the map. Exhibit 5, showing the cross section of the dam ? — A. Yes, sir; 

 I have looked at it. 



Q. You are familiar with dams for lumbering operations ? — A. Yes, sir. 



Q. And could logs be driven across such a dam, — is it feasible and practicable to drive them 

 without chutes or aprons just as it is? — A. I should think not profitably, allowing the mountainous 

 stream below to be full of obstructions. 



