380 REPORT OF THE COMMISSIONERS OF 



In the United States it has been almost universally held that when the State exercised 

 the right of eminent domain the compensation could not be in kind but must be ii. 

 current money of the realm. In 185 1, however, when considerable volumes of water 

 were diverted from Black River for the supply of Black River and Erie Canals, the 

 Legislature passed an act providing for the construction of storage reservoirs on upper 

 Black River in order to compensate in kind for water diverted from that stream for the 

 supply of the canals. Successive acts relating to the same subject have been passed 

 from time to time, until at the present there are a series of compensating reservoirs on 

 the head waters of the main river and its two principal tributaries, Beaver and Moose, 

 making a total storage of over 3,600,000,000 cubic feet. This particular case must be 

 considered as to the advantage of the water powers and is merely cited as illustrating 

 the curiously diverse and illogical practices which have governed the relation 

 of the Commonwealth to the inland waters of this State. Its significance is 

 accentuated when we consider that on Genesee River, where a considerable diversion 

 for canal purposes has taken place ever since 1825, the riparian owners have not been 

 compensated either by money or in kind, and State authorities have taken the ground 

 that the State is entitled to the water of that stream by reason of a paramount right 

 on the part of the State, which exists independent of and superior to the rights of the 

 riparian owners. These various diverse practices have, undoubtedly, on the whole 

 operated to the disadvantage of water power development in New York. 



NO GENERAL MILL ACT IN NEW YORK. 



Without special legislation private enterprise has been unable, by reason of there 

 being no method of obtaining control of lands to be flooded for reservoirs, to develop 

 power at any point where large areas were to be flooded, or where reservoirs were 

 desired to be created. In the New England States, Virginia, Wisconsin and several 

 others there are a series of enactments known as Mill Acts which, founded in the 

 extension of the doctrine of eminent domain, have as their object the encouragement 

 of the erection of mills. In Massachusetts, manufacturing has always been a chief 

 occupation of the people, hence that State was one of the first to embody in its 

 statutes a Mill Act, under the provisions of which manufacturers may exercise the right 

 of eminent domain, acquiring by due process of law private property for the con- 

 struction of storage reservoirs. The exercise of the prerogative of sovereignity for 

 this purpose is justified on the ground of the common public good. But in New 

 York, by reason of the State going into the transportation business, and consequently 

 adopting the policy of conserving the inland streams for the use of its internal navi- 

 gation system purely, it has resulted that no general Mill Act has ever been enacted. 



