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CORRESPONDENCE
OF
THE WATERING COMMITTEE
WITH THE
SCHUYLEILL NAVIGATION COMPANY.,
alſº
IN RELATION TO
The Fair Mount Water Works:
TO GETHER WITH
The Reports of the Watering Committee f
*
TO COUNCILS,
Made Dec’r. 11, 1832, and Feb’y. 11, 1833.
PHILADELPHIA:
PRINTED BY LYDIA R. BAILEY,
No. 26 NoFTH FIFTH STREET.
1833.

Transportation
Library
To
$3.5
. Sº, i-
W 5 #
| $33,
In Select Council, December 13, 1832.
Resolved, That the Watering Committee be, and they hereby
are, authorized and empowered to take all such measures as they
may deem expedient, to secure and protect the possession and
interests of the City in the Locks, Canal, and other property at
Fair Mount—to prevent injury to the same—and to seek redress
for any encroachments which may have been already, or may
hereafter be made thereon.
Common Council concurred. **
Eactract from the Minutes.
ARCHIBALD RANDALL,
Clerk of Select Council.
John P. WETHERILL, Esq. #
Transportation
Library
;
REPORT
OF
THE WATERING COMMITTEE,
&c., &c.,
To the Select and Common Councils
of the City of Philadelphia:—
The Watering Committee respectfully report—
That the annexed documents will exhibit a state of things
which renders an appeal to Councils expedient: and the Com-
mittee respectfully ask for such instructions as the case requires.
Shortly before the election of the present Councils, a letter
was addressed to the then Chairman of the Watering Committee,
(William J. Duane, Esq.) by the President of the Schuylkill
Navigation Company, which is annexed, dated October 2d, 1832.
After the present organization of the Committee, a reply was
sent to the above, by the Chairman, dated the 15th November
1832.
To this the President of the Schuylkill Navigation Company
answered, by his letter dated November 27, 1832.
An interview took place in consequence of the suggestions
contained in this last letter. But the persons respectively repre-
senting the different interests, finding that a difference of opinion
existed between them, which discussion was not likely to recon-
cile, separated without coming to any conclusion, and agreed to
consider each other mutually free to adopt such course as might
be directed by their several constituents. ~3
The Committee then called for the opinion of the City Soli-
citor, upon the points of controversy which are likely to arise .
between the City and the Navigation Company, and it was
promptly communicated in writing, and is annexed.

( 4 )
It appears that the Navigation Company are actually engaged
in constructing works, of which the effect will be to appropriate
to their use a larger supply of water than, by the existing con-
tracts they are entitled to. Measures appear thus to be called for,
which will at the same time protect the important interests of
the City, and put to rest questions which (whatever may be their
merits) cannot fail to be injurious as long as they remain unde-
termined. For the character of these measures, and the general
course which ought to be adopted, the Committee beg leave re-
spectfully to refer themselves to the wisdom of Councils.
JOHN P. WETHERILL,
Chairman of the Watering Committee.
Attest. SAMUEL W. RusH, Register.
December 11, 1832.
AGREEMENT. $
I do hereby engage and agree, under the directions of the
Watering Committee, or their agent, to attend to the locks and
other works connected therewith, situated on the west side of
Schuylkill opposite the Fair Mount water works, and in all
cases use my best exertions in opening and shutting the said lock-
gates with care and expedition, whenever required by the mas-
ters of boats or other persons passing with rafts or any other
kind of articles; and also engage to keep the canal and locks
clear from impediments of fishing boats, filth, or any other thing
not privileged by the laws of the Schuylkill Navigation Com-
pany, and will also use my best exertions to keep in order, and
protect the walls and other parts of said works, from being in-
jured by persons trespassing on said grounds, and further agreč,
that in case I shall not give full satisfaction in the performance
of the duties as above mentioned, to remove forthwith, when- .
ever required by the Watering Committee or their agent, from
the premises, and give full and peaceable possession of the same,
which I engage to keep in good order while under my charge.
It being understood that in consideration for the above duties
to be promptly performed by me, that the said Watering Com-
mittee or their agent shall pay to me, as a full compensation,
( 5 )
twelve dollars per month, during the period of time that I shall
remain in the employ of the said Watering Committee.
Signed and sealed this second day of
November, eighteen hundred and twenty-five.
* John GOTWALT, (SEAL.)
Witnesses present. ***
John RUSSELL.
Joseph BoslER.
FREDERICK GRAFF, (SEAL.)
*. in behalf of the Watering Committee.
I furthermore agree to enter into the book of account to be
prepared for me, all sums received for the toll for boats passing
through said locks which are entitled to pay, and to give a regular
account of the same monthly, to the Treasurer of the Schuylkill
Navigation Company, whose receipts for the payment of the
same shall be exhibited to the Watering Committee or their agent,
for inspection, at all times if required.
JOHN GOTWALT, (SEAL.)
Office of the Schuylkill Navigation Company,
Philadelphia, February 4, 1832.
DEAR SIR, -
The board of managers deem it necessary to the public accom-
modation, that additional wickets should be put into the lock
gates at Fair Mount, upon a plan which I pointed out to Mr.
Graff. As it is necessary this should be done before the naviga-
tion opens on 1st March next, may I beg the favour of your
early direction in the matter.
I am desired also to mention, that the lower end of the lock,
and the head of the outlet canal, are very much choked with a
deposite of mud or other materials, and that this also should be
taken out before 1st March.
In calling your attention to this matter, I beg leave to mention
that it is under the provisions of the agreement of 14th June, 1824.
$ I am, very respectfully,
Dear Sir, your obedient servant,
JOSEPH S. LEWIS, President.
WILLIAM J. DUANE, Esq. *
Chairman of the Watering Committee of Philadelphia.
( 6 )
DEAR SIR,
Your letter has been submitted to the Watering Committee;
and, although it is their duty and desire to observe scrupulously
the faith of the City with your Company, they entertain a doubt
whether the City is bound to do any “additional” work, such
as you mention. The agreement specified what the City was to
make, the Company accepted what was made as an execution of
the agreement, and the City seems to be bound only to keep in
order what was made and accepted. To make “additional”
wickets, the Committee doubt their obligation; and will thank
you to consider the question yourself. If your Company insist
on the obligation on the City to make “additional” work, the
matter shall be forthwith submitted to the decision of Councils.
Respectfully, yours,
W. J. DUANE, Chairman.
February 16, 1832.
JosłPH S. LEwis, Esq. President, &c.
Office of the Schuylkill Navigation Company,
Philadelphia, February 17, 1832.
WILLIAM J. DUANE, Esq.
Chairman of the Watering Committee.
DEAR SIR,
Your favour of to-day is received. My note of 4th instant
had reference to another object beside the new wickets, namely,
the clearing out of the upper part of the lower canal, and part
of the lock, much impeded by sand or other deposite.
Will you do me the favour to furnish me with an answer on
this head, previous to my submitting to the board your letter
just received. *
The board meet to-morrow at nine o’clock.
I am, very respectfully,
Your obedient servant,
JOSEPH S. LEWIS, President.
( 7 )
Office of the Schuylkill Navigation Company,
A Philadelphia, October 2, 1832.
WILLIAM J. DUANE, Esq.
Chairman of the Watering Committee.
DEAR SIR,
The very great increase of the trade on the Schuylkill, has
rendered it indispensable to add to the facilities of the naviga-
tion by additional locks, which have already been applied in eight
places.
At no place, however, has any improvement been so obviously
required as at Fair Mount, in consequence of which the Board
have deemed it necessary forthwith to build an additional lock
there, between the old locks and the bank.
In doing this, it will be necessary to remove the present lock-
tender's house, and measures are taking to erect another of larger
dimensions in lieu of it.
When the original agreement was made with the City, it was
stipulated that the locks should be so built as to allow a depth of
three feet at all times. In every part of the old locks plenty of
water is to be found, except at the outlet lock, where, although
there are three feet of water on the mitre sill, it is not, in the
present state of the coal trade so important to the City of Phi-
ladelphia, found to be enough. The Board wish, therefore, that
this lock should be deepened at least one foot, but they are by
no means of opinion that the City is bound to do this, under our
agreement of 14th June, 1824.
The clashing of jurisdiction in the management of the works
at Fair Mount, has suggested a consideration whether a different
arrangement cannot be made, and upon this head they will be
happy to confer with you at such early period as may suit your
convenience.
I am, very respectfully,
Your obedient servant,
(Signed) JOSEPH S. LEWIS, President.
( s )
Office of the Watering Committee,
City Hall, October 16, 1832.
DEAR SIR,
At the last meeting of the Committee, Messrs. Toland, Lewis,
and Gowen, were appointed a Committee, in conjunction with
John K. Kane, Esq. City Solicitor, and Mr. Graff:
To consider the enclosed communication from Joseph S.,
Lewis, Esq. President of the Schuylkill Navigation Company,
and to examine the agreements between the City and the said
Schuylkill Navigation Company, to ascertain the rights and pri-
vileges of the City in relation to the locks, &c. opposite Fair
Mount: and also to meet the Managers of the said Company,
to hear their suggestions and offers in relation to the enclosed
communication, and to report to the Committee.
Very respectfully,
Your obedient servant,
SAMUEL W. RUSH, Register.
HENRY ToI.AND, Esq.
}
Office of the Schuylkill Navigation Company,
Philadelphia, October 24, 1832.
DEAR SIR,
On the 2d instant I had the honour to address a note to Mr.
Duane, the former Chairman of the Watering Committee, to
which no reply has been received, doubtless owing to the change
of the Committee.
As, however, the papers have probably been transferred to
you, I take the liberty of calling your attention to my note:
And am, respectfully,
Your obedient servant,
JOSEPH S. LEWIS, President.
- J. PRICE WETHERILL, Esq.
Chairman of the Watering Committee of Philadelphia.
--- ( 9 )
Office of the Schuylkill Navigation Company,
Philadelphia, October 31, 1832.
John P. WETHERILL, Esq.
Chairman of the Watering Committee.
DEAR SIR,
Your favour of 25th instant has been received, mentioning
that a Committee had been appointed to meet a Committee of
this Board, in reference to my letter of 2d instant.
'Dr. Preston and myself, on behalf of this Board, will be
happy to meet your Committee at this office, at as early a day
as will suit them—of which be pleased to inform me.
I am, respectfully,
Your friend,
JOSEPH S. LEWIS, President.
SIR,
Your letter of October 2d was received by Mr. Duane imme-
diately before he ceased to be a member of the City Councils,
and it is of course only since the new organization of these bo-
dies that it has been placed before the present Committee. It has
met their early attention, and I am instructed to acknowledge its
receipt, and reply to the suggestions it contains.
It is very possible that both the Schuylkill Navigation Com-
pany, and the City of Philadelphia, may derive advantage from
a change in the arrangements now subsisting between them. The
City certainly has not reaped the benefit which was anticipated
from the last contract: and the Watering Committee will be pre-
pared at any time to communicate the terms on which they will
recommend a modification to the Councils. If they should be
able to meet the views of the Schuylkill Navigation Company,
by granting facilities to the increasing coal trade,-correspond-
ing facilities will be expected, to meet the increasing demand for
water power arising from the rapid growth of the City and the
neighbouring districts.
I am directed to say that the Committee cannot consent, with-
out further explanation, to an additional lock at Fair Mount, be-
tween the old locks and the bank, which your Board deem itne-
B
( 10 )
~$$.
cessary to build forthwith. It is very possible that you may
satisfy the Committee that such an arrangement is compatible
with the interests of the City. But having been put “in posses-
sion of the locks and canal at Fair Mount, and of the toll-house
and ground thereto adjacent and annexed,” with a corresponding
control over them, certainly not less" than that which the Com-
pany enjoys, the City is believed to have rights which would be
invaded if you should proceed without its previous assent. I do
not mean to impute an intention to proceed without such assent,
but as your letter might bear a construction by which the rights
of the City would be compromised, it was deemed proper to
make this suggestion distinctly, in order that all misapprehension
may be avoided. If you will at any time communicate the altera-
tions which the Company desires, they shall be submitted to the
City Councils; and we will in return apprize you of the changes
which we deem important to the interests we represent. But I
beg leave to repeat, that until these modifications are mutually
approved and adopted, neither the one party nor the other is at
liberty to vary in any respect the existing state of things.
(Signed) JOHN P. WETHERILL, Chairman.
Joseph S. LEwis, Esq.
November 15, 1832.
Philadelphia, November 27, 1832.
John PRICE WETHERILL, Esq.
Chairman of the Watering Committee.
SIR,
Your letter of the 15th instant has been laid before the Mana-
gers of the Schuylkill Navigation Company, who instruct me to
make the following reply.—The Board do not suppose that their
right to use the water and water power of the river for the pur-
poses of navigation to the extent they may deem necessary, is
subject to any question, nor that the alterations in the use of it
at Fair Mount, are such as makes it proper for them to commu-
nicate those alterations to the City Councils for their approbation.
They are not aware that the management of the locks and canal
at Fair Mount is to be classed among the rights of the City, but
( 11 )
rather that it is a duty which, in relief of the Navigation Compa-
ny, the City covenanted to perform.
This Company and the City have hitherto acted in perfect har-
mony with each other, and it is not thought that any interrup-
tion of the harmony is either necessary or expedient; and if in a
personal interview between the Committees of both, a frank com-
munication can be made of the changes which you deem import-
ant to the interests of the City, it is highly probable that this
Company may be able to extend to the City the desired accom-
modation, and they will be happy to do so if they can. The im-
provements now in progress are indispensable to the growing use
of the navigation, in which the City has so great an interest; and
the Company, it is believed, have not entered upon these im-
provements, until the public convenience most manifestly called
for them. The present locks are wholly insufficient for the
trade.
I am, very respectfully,
Your obedient servant,
(Signed) JOSEPH S. LEWIS, President.
Our Committee propose to meet your Committee to-morrow
(Wednesday) evening, at 7 o'clock, at our office.
(Signed) J. S. L.
Office of the Solicitor, Philadelphia, Dec. 3d, 1832.
The Watering Committee have submitted to me the agree-
ments, made between the City of Philadelphia and the Schuylkill
Navigation Company, on the 3d of June 1819, on the 20th of
July 1820, and on the 14th of June 1824; and they require me
to express an opinion as to the rights and obligations of the
parties.
By the first of these instruments, the City engaged to con-
struct such a dam at Fair Mount as would raise the water of the
Schuylkill to a certain height, and always to keep it in repair;
to complete a canal and locks of given dimensions and character,
under the Company’s inspection, and in such manner as should
be approved by them, to accommodate the navigation at the
dam ; to provide ground for a toll-house near the locks, and to
*.
( 12 )
deliver the canal, locks, and ground for the toll-house, into the
possession of the Navigation Company, on or before the 1st of
January 1822, to be their property for ever. The City also en-
gaged to pay for all damages which might be occasioned by the
construction of these works, and the expenses of any suits which
might in consequence of them be brought against the Company.
The right was secured to the Navigation Company of drawing
off from the dam as much water as they might deem necessary
for the purpose of the navigation, and the City was authorized,
for the purposes of the public works, to use the remainder of the
water, under a limitation that it should never reduce the level
ºbelow the top of the dam. In this agreement it was carefully
expressed, that nothing contained in it should “be understood
to affect or impair the exclusive authority and control over the
canal and locks, and the exclusive possession and ownership
thereof, by the Navigation Company.”
The agreement of the 20th of July, 1820, authorized the City
to raise the dam eighteen inches above the line before fixed, but
in other respects left the agreement of the 3d of June, 1819, un-
changed.
The agreement of the 14th of June, 1824, recites the former
agreements—that the City has constructed the dam, locks, and
canal, and that the Navigation Company have accepted the locks
and canal, and have received the stipulated ground for their toll-
house—and that the parties have come to a new arrangement
in regard to the water power of the dam at Fair Mount; it being
intended that the City, for the consideration afterwards mention-
ed, shall have the full, absolute, and uncontrouled use and enjoy-
ment of all the water power at the dam, except so much as may
be necessary for the navigation of the river, without any other
restriction or reservation, and shall also have charge of the locks
and canal, under the superintendence of the Navigation Com-
pany. *
The Navigation Company, then, in consideration of $26,000,
covenant that the City shall have the whole water and water
power of the Schuylkill at Fair Mount, that shall remain after
drawing off from the dam so much as shall be necessary for the
navigation of the said river, canal, and locks, without any other
*s
( 13 )
reservation whatsoever, or any restriction contained in former
agreements; and in formal words, they sell to the City all such
remaining water power; but they declare it to be the true mean-
ing of the parties, that the City shall have only such use of the
water, as, with the use thereof for the purpose of the navigation
aforesaid, will not reduce it below the level of the dam. The
agreement then witnesses, that the locks, canal, and ground for
the toll-house, have been placed in the possession of the Naviga-
tion Company, and the Company make certain covenants, relating
to the tolls chargeable at Fair Mount, and for the preservation
of the purity of the water. A covenant between the parties fol-
lows, that the City “shall and will have and take charge of the
locks and canal at Fair Mount, and cause the same to be well
and faithfully attended, and kept in good order and repair for
ever at its own expense,” and the proper tolls collected; reserv-
ing to the Navigation Company the right of superintending both
the collection of the tolls and the management of the canal and
locks, and authorizing them, at the City’s expense, to remove
any obstructions, and make any repairs, which the City shall,
after reasonable notice, have neglected, and to fasten up the gates
or openings used by the City for drawing off the water, in case
at any time the head shall be reduced below the level of the
dam. In conclusion, the Navigation Company covenant to put
the City forthwith in possession of the locks, canal, toll-house,
and ground adjacent at Fair Mount, so that it may enter upon
the execution of its covenants.
It is understood, that in pursuance of the covenants of this last
agreement, the City was, immediately after the 14th of June
1824, placed in possession of the locks, canal, toll-house, and
ground adjacent—and that it has remained in possession of them
ever since.
After a careful examination of the subject, I am of opinion,
1. That the City is entitled to the use of all the water of the
Fair Mount dam, except so much as may be required for the
navigation of the river Schuylkill, and of the canal and locks
constructed by the City under the agreement of 1819; provided
that by such use the water is not reduced below the level of the
dam —and as a consequence, *
&
º,
y-
( 14 )
2. That the Navigation Company is not entitled to the use of
the water at Fair Mount, for supplying any other canal or locks
than those so constructed.
3. That the City is lawfully in possession of the said canal and
locks, and of the toll house and ground adjacent:—and that it has
charge of them for the purpose as well of protecting its own in-
terests, as of performing its covenants with the Company.
4. That the Navigation Company has the right of so using the , ,
canal, locks, toll-house, and ground adjacent, as may be conve-
nient and proper for the purposes of the navigation; but,
5. That the Navigation Company, except in the case of a ne-
glect by the City, after reasonable notice, to make repairs or re-
move obstructions, has no right to alter the condition of the
locks, canal, toll-house, and ground adjacent thereto, at Fair
Mount.
(Signed) J. K. KANE.
1MR. John GoTwALT,
DEAR SIR, §
The navigation will be closed on the 20th December, at which
time it is determined to go on without delay, in forming the new
passage to the new locks, in doing which, our house, in which
you now reside, will have to be removed immediately. I think
it most friendly to make this communication, so that you may
remove in due season, and therefore mention the 22d December,
instant, as the latest period you can occupy the premises.
Your friend,
JOSEPH S. LEWIS,
President of the Schuylkill Navigation Company.
December 8th, 1832.
SIR,
In my note of November 15th, you were informed of the
views taken by the Watering Committee of the intention which
you had stated to exist on the part of the Schuylkill Navigation
Company, to construct an additional lock at Fair Mount. These
views have since been fortified and confirmed by the official opi-
( 15 )
nion of the City Solicitor. Under these circumstances, it would
have been satisfactory to the Committee, if the operations of the
Company had been suspended until the relative legal rights in
question could have been placed beyond the reach of controversy.
But as you are now actually proceeding in the contemplated
work, which we deem altogether unauthorized, contrary to the
spirit and letter of subsisting contracts, and calculated greatly to
interfere with the interests of the City if it should be persisted
in, I am directed to give you formal notice to desist.
The steps already taken by the Company are regarded by the
Committee as a clear invasion of the rights confided to their care
—as such they are protested against in their earliest stage—and
the further prosecution of them will be decidedly opposed, as it
is now unequivocally objected to.
Yours, respectfully,
JOHN P. WETHERILL,
Chairman of the Watering Committee.
Joseph S. LEwis, Esq.
President of the Schuylkill Navigation Company.
December 8th, 1832.
MR. JoHN GoTwALT,
DEAR SIR,
Until you shall have received instructions from the Watering
Committee, or their agent, to remove from the premises which
you now occupy, you are hereby requested to hold possession of
the same, and continue to perform the duties required of you ac-
cording to the agreement made between Frederick Graff, in be-
half of the Watering Committee, and yourself, dated 2d day of
November 1825.
Very respectfully,
FREDERICK GRAFF,
Jägent in behalf of the Watering Committee.
Philadelphia, December 10th, 1832.
SIR,
Since writing my note of Saturday, I have received yours to
Mr. John Gotwalt, and have laid it before the Watering Com-
( 16 )
mittee. I am instructed to say that they unite in regarding your ,
call upon the gate keeper as altogether unauthorized, and that he
will be directed not to comply with it.
The whole affair being of more than usual importance, the
Watering Committee will lose no time in submitting it to the
Councils for their especial instructions. *
Respectfully, * }
JOHN P. WETHERILL, Chairman.
JosłPH S. LEwis, Esq. tº.
President of the Schuylkill Navigation Company.
Becember 11th, 1832.
->“
Philadelphia, December 13, 1832.
MR. JoHN GoTwALT,
SIR,
I repeat my request to you, which is, that until you shall re-
ceive other instructions from the Watering Committee, or their
agent, that you will continue as formerly to perform your duties
of attending to the locks, and remaining with your family in the
house in which you now live, according to your agreement.
Should any letters be handed to you, or any verbal propositions
be made on the subject of your removing from where you now
reside, (except by the Watering Committee, or their agent,) you
will please communicate the same to me immediately. Mean-
time I flatter myself that you will strictly comply with my re-
quest.
Yours, respectfully, º
FREDERICK GRAFF,
For and in behalf of the Watering Committee.
MR. JoHN GoTwALT,
SIR,
The Watering Committee have been furnished with the note
received by you from the President of the Schuylkill Naviga-
tion Company, and with a copy of Mr. Graff’s note to you of
the 10th of December. I am instructed to say, that the Water-
ing Committee ‘entirely approve of the course taken by Mr.
§ ( 17 )
Graff, and do not admit that the President of the Navigation
Company has any authority or right whatever to require your
removal from the premises which you occupy. Your contract
was made with Mr. Graff, representing the City of Philadelphia,
and you are requested not to give possession to any person ex-
cept its representatives. Any further communications which you
may receive on this subject, you will immediately forward to
Mr. Graff, and be governed by the instructions of the Watering
Committee through him.
EPHRAIM HAINES,
Chairman, Pro Tem.
December 14th, 1832.
SIR,
I am instructed by the Watering Committee, to remonstrate
earnestly against the course which the agents of the Schuylkill
Navigation Company are pursuing at the Fair Mount canal. We
do not suspect the sincerity of your conviction as to the rights
of the Company, and we will ask a return of the same confi-
dence in the sincerity of ours as to the rights of the City. The
questions between us must at last be settled by judicial autho-
rity, and we are perfectly willing to meet and abide by such a
determination. Mutual respect for each other, and for the laws,
would (we trusted) have prevented a resort to measures of force
in the meantime. Yet you have taken the law into your own
hands, and are proceeding as if the points in controversy had
been yielded by the City, or adjusted by competent authority.
The irregularity of this must be apparent, on reflection, to your-
selves. Should you persist, after our repeated notices to the con-
trary, we shall be compelled, however reluctantly, to oppose
your measures on the ground.
Yours, respectfully,
(Signed) *, JOHN P. WETHERILL,
Chairman of the Watering Committee,
J. S. LEwis, Esq.
December 29th, 1832.
G
( 18 )
Office of the Schuylkill Navigation Company,
Philadelphia, December 31, 1832.
John P. WETHERILL, Esq.
Chairman of the Watering Committee.
SIR,
I received late on Saturday evening, your note of 29th in-
stant, which I shall lose no time in laying before the Board.
Yours, respectfully,
JOSEPH S. LEWIS, President.
Office of the Schuylkill Navigation Company,
Philadelphia, January 1, 1833.
SIR,
Your note of the 29th ult, has been laid before the Board of
Managers of the Schuylkill Navigation Company, and they have
directed me to make the following reply. You do but justice to
the Board in giving them credit for the sincerity of their con-
viction as to the rights of the company. This conviction is not
the result of their unaided judgment. Besides examining the
matter themselves, with great attention, they have submitted it
to counsel, by whom they are advised that their rights are not
subject to doubt. While, therefore, the Board most readily re-
ciprocate the fullest confidence in the sincerity of the respecta-
ble gentlemen who compose the Watering Committee, they can-
not but feel that their duty is to be measured, in relation to
themselves, by their own conviction of their rights, sustained as
before stated, by professional advice they confide in, and that
they would justly incur censure if they should permit them-
selves to be prevented from doing what the public accommoda-
tion most manifestly requires, by an intimation that legal or other
resistance will be offered to them. They have not undertaken
the present work until they were convinced that it was necessa-
ry. They cannot suspend it, without causing a delay, of per-
haps a whole season. If they should be stopped by legal mea-
sures, it will be their duty to submit. If an overpowering force
should be employed against them (as seems to be hinted) they
will have no choice. In either case they will be justified to the
Company and to the public, and besides, the Company will have
( 19 )
the means of seeking redress, which might perhaps be waived
by a voluntary submission. Their recourse will be against the
City for damages.
The Board are not aware, however, that any such extremity
is necessary. They are sure it is not desirable; and as an evi-
dence that they are disposed, (however confident in their rights)
to avoid any unpleasant collision, they propose that a conference
be held between the counsel on both sides, in order that if they
cannot agree in opinion upon the merits, they may arrange some
mode of bringing the points in controversy to an early decision.
In the meantime, they expect to be permitted to go on, the
rights of the City being reserved by the protest of the Commit-
tee so as to receive no prejudice, until the final adjudication.
Yours, respectfully,
JOSEPH. S. LEWIS, President.
JoHN P. WETHERILL, Esq.
Chairman of the Watering Committee.
Fair Mount, January 3d, 1833.
MR. FREDERICK GRAFF,
DEAR FRIEND,
The Schuylkill Navigation men have commenced digging close
by the steps at the house I live in. I think it necessary for you
to come out and view for yourself.
Your friend,
JOHN GOTWALT.
LAwkENCE LEwis, Esq.
DEAR SIR,
You will observe by the note above received, quarter before
ten o’clock this morning, that the Navigation Company have
commenced depredations immediately at the foot of the steps of
the toll house. As Mr. Wetherill is out of town, will you
please say what shall be done.
Very respectfully,
In haste,
FREDERICK GRAFF.
10 o’clock, January 3d, 1833.
( 20 )
f
SIR,
My absence from town delayed the receipt of your letter of
the 1st of January, which I have now the pleasure to acknow-
ledge. The object of the Watering Committee is merely to per-
form a public duty in which they have no personal interest ex-
cept that which is common to many, and perhaps all of the
members of your Board. In the discharge of this duty, they
cheerfully receive any suggestion which may tend to bring “the
points in controversy to an early decision.” And they have
accordingly instructed the City Solicitor to unite with the Coun-
sel of the Navigation Company, in preparing a case for the opin-
ion of the Court, or in any other feasible mode of procuring an
opinion which will be binding on all parties. The present ses-
sion of the Supreme Court will no doubt afford an opportunity
for the argument in the course of a few days: as I understand it
is the practice of the Judges, to give to cases of public concern,
which require it, an early hearing.
Permit me to urge anew the strong conviction which is felt
by the Watering Committee, that while our controversies are,
(as in a country of laws they necessarily must be), submitted to
the tribunals of justice for determination, it would be manifestly
irregular in the Company to proceed in a course of violence,
which assumes the power while the right is undecided.
Yours very respectfully,
(Signed) JOHN P. WETHERILL, Chairman.
Joseph S. LEwis, Esq. *
January 12, 1833.
GENTLEMEN,
The gates belonging to the chamber locks to the canal oppo-
site to Fair Mount, were put in at the cost of the City, in 1825;
they now require repairs, having become much broken at the
belt pieces, against which the bows of the boats strike.
In order to prevent injury to those parts of the gates most ex-
posed, I take leave to recommend that strong cast iron facings
be screwed on them to secure their future safety.
As the gates must be repaired for the early spring trade, I
await the instructions of the Committee on this subject.
( 21 )
Mr. Erdman, who made the gates, will repair them under the
directions of the Superintendent, provided the repairs as propo-
sed shall be approved by the Committee.
Very respectfully,
Jan. 12, 1833. 3: FREDERICK GRAFF.
The Gentlemen of the Watering Committee.
Office of the Schuylkill Navigation Company,
Philadelphia, January 15th, 1833.
SIR,
Your favour of the 12th inst. I had the pleasure to receive
late on Saturday evening.
It shall have immediate attention, but a short delay will be
caused by the departure yesterday morning of Messrs. Sergeant
and Binney for Washington.
Yours, very respectfully,
JOSEPH S. LEWIS, President.
John P. WETHERILL, Esq.
Office of the Schuylkill Navigation Company,
Philadelphia, January 19, 1833.
SIR, Tº
I am directed by the Board to reply to your communication
of the 12th instant, as follows:
Adverting first to the latter part of your note, the Board desire
me to say that they are not aware of having, in any respect, pro-
ceeded “in a course of violence,” or of having intimated an in-
tention to do so. They have, on the contrary, acted peacefully,
in the way of their duty, observing at all times the most careful
respect for the City authorities, and deprecating the use of force,
which, as heretofore intimated, they understood to be intended
to be employed against them. In this understanding, nothing
has yet been said to convince them they were in error. Your
last note seems rather by its silence to admit they were right in
their construction of your former communication, and were jus-
tified in the notice they gave of what they considered to be the
legal consequences of force employed on the part of the City.
( 22 )
In the next place, they have to remark, that there is a mate-
rial part of the last note addressed to the Watering Committee,
to which they do not perceive that you have made any reply.
They will restate it now, because they deem it essential to the
right performance of the duty of the Board, that the basis they
have proposed should be assented to, before they proceed fur-
ther. Referring, then, to that note, they now repeat their pro-
posal, as a preliminary, that the Company are not to be in any
manner obstructed in the prosecution of their work, until a de-
cision. For greater precision, they add, that it is indispensable
that the possession of the toll house should be given up, as the
work in its immediate neighbourhood will necessarily endanger
the house, and its tenants, if any there should be. Besides, the
ground the house stands upon must be occupied by the Company.
This basis being assented to, (without prejudice to the rights
of the City, which may be reserved in the fullest manner,) they
will be ready to enter into arrangements for the earliest possible
decision of the questions between the City and the Company.
If they had not great confidence in the legal rights of the Com-
pany, (and they certainly have the greatest,) still they should
have no thought of attempting either to evade or to resist a legal
determination, being desirous to have an authentic decision to
inform them authoritatively, and desirous also to conform to it
when made.
They again suggest, that our counsel confer upon and make
the needful arrangements. *.
I am, very respectfully,
Your obedient servant,
JOSEPH S. LEWIS, President.
JoBN P. WETHERILL, Esq.
Chairman of the Watering Committee.
John P. WETHERILL, Esq.
Chairman of the Watering Committee.
DEAR SIR,
The absence of Mr. Erdman from the City has prevented the
repairs being made to the lock gates opposite to Fair Mount.
**
****
( 23 )
Mr. Erdman promised the Superintendent, previous to his leav-
ing the City, that immediately after his return the work should
be attended to.
On Friday last some person or persons unknown to the Su-
perintendent, opened the guard gates at the locks opposite Fair
Mount. This morning the Superintendent found the gates still
open. Heretofore it has been the usual custom, that so soon as
the navigation trade for the season was finished, for the gate
keeper to have the guard lock gates closed for the winter, in
order to prevent all accidents by inundations or otherwise.
Those gates having been opened without the gate keeper’s
consent, although under his charge, induces the Superintendent
to recommend to the Committee, that he be authorized to have
those gates shut and chained fast, in order to prevent accidents
by a sudden rise of the river. Should the water freeze in the
lock when the gates are open, serious injury may be done to the
works, as they then could not be shut.
Very respectfully,
FREDERICK GRAFF.
January 21, 1833.
SIR,
It is very possible that we may differ in the meaning to be
imputed to the word “violence.” We deem it to consist in the
invasion of another’s legal possessions, and the prostration of
his house, and forcing his tenant from the ground occupied by
him. Such we understand to be the design made known to us in
several of your communications. Referring for the present to the
last received, we find not merely danger threatened to “the
house and its tenants,” but an unqualified determination that
“the ground the house stands upon must be occupied by the Com-
pany.” These are declarations in which there is nothing equivo-
cal. The English language contains no terms more clearly in-
dicative of an unbending determination to commit acts of disturb-
ance on an unquestioned possession, in disregard of the wishes
of its occupants. A fulfilment of such a threat would amount to
( 24 )
violence. Indeed, without wishing to dispute about words, we
cannot but regard the course pursued by you for several weeks
as one of force and violence. To its continuance in the manner
threatened, you have been informed that resistance would be op-
posed ; and the information is now repeated. It surely cannot
be necessary to exhibit to the public these corporations in the
attitude of personal combatants. We have offered to submit the
whole matter to an immediate decision, and have stated our be-
lief that the result can be reached, if both parties consent, before
the Supreme Court now in session. It seems you decline any
arrangement for a decision, except on terms which would involve
the actual abandonment of every thing claimed by the City. We
are asked to agree that the supply of water now secured should
be relinquished, and all the evils apprehended from it be actually
sustained, and then to trust to some undefined measure of re-
dress, if we can show that wrong has been suffered. The usual
mode of conducting a negotiation or reference, is to permit the
subject of controversy to remain unchanged until its termina-
tion. If your necessities are really pressing, it is not our fault
that they were not anticipated, or earlier provided for. Should
we acquiesce in the proposed surrender of our alleged rights, the
mischief might be irreparable. We do not mean to foretell the
issue of the controversy. But for its determination we rely both
upon possession and agreement.—While you advance the argu-
ment that would at the best take advantage of your own wrong
in asserting that the agreement was beyond the scope of your
authority. A few days would probably be sufficient to reach a
decision in the way which we propose. If you have any substi-
tute equally effectual, we are not tenacious of this. But we learn
from you merely, that on our absolute surrender at present, you
“will be ready to enter into arrangements for the earliest possi-
ble decision of the question,” &c. Then if no arrangements be
suggested of a nature perfectly satisfactory to you, the City is
still to be at your mercy for an indefinite period.
To bring the controversy, if possible, to a point that is sub-
stantial, the City Solicitor will submit to your counsel a case
for the opinion of the Court. Of course it will be open to mutual
*:::
( 25 )
3.
.* xt. #.
& six,
*
*
modifications, such as justice and a reciprocal regard to each
others rights may require.
Respectfully,
(Signed) JOHN P. WETHERILL, Chairman.
Joseph S. LEwis, Esq.
January 22, 1833.
Office of the Schuylkill Navigation Company,
Philadelphia, January 24, 1833.
SIR,
Enclosed I hand you a copy of Resolutions adopted by the
Board this day, and I hereby give you notice accordingly, as in
the said Resolutions expressed—and beg the favour of a speedy
reply. -
Very respectfully,
Your obedient servant,
THOMAS HARPER, Treasurer and Secretary.
John P. WETHERILL, Esq.
Chairman of the Watering Committee.
Office of the Schuylkill Navigation Company,
Philadelphia, January 24, 1833.
Whereas it is deemed necessary for the navigation of the river
Schuylkill, that another lock and canal should be made at the
Fair Mount dam, and for this purpose it is necessary to remove
the lock house at that dam from its present position, therefore,
Resolved, by the President, Managers and Company of the
Schuylkill Navigation Company, that the Mayor, Aldermen and
Citizens of Philadelphia, be and they are hereby discharged from
the present care and attendance of the locks at Fair Mount, and
the collection of tolls thereat; and that the said Mayor, Alder-
men and Citizens of Philadelphia, be and they are hereby re-
guired forthwith to deliver up the possession of the house, office
and land occupied by them in the care, attendance and collection
aforesaid, according to the provisions of the 10th Section of the
Act of the 10th April, 1826.
Resolved, That the preceding Resolution be communicated to
# D
3.
K
( 26 )
the Mayor of the City of Philadelphia, and also to the Watering
Committee of the City Councils; and that notice be given to
them, that unless possession shall be given to this Company ac-
cording to the same, the Company will proceed as in the said
section is directed.
By order of the Board of Managers,
THOMAS HARPER, Treasurer and Secretary.
Jon N P. WETHERILL, Esq. *
Chairman of the Watering Committee.
SIR,
Your communication of this day is received. You have been
already fully apprized of the views of the Watering Committee,
and it seems to them a needless repetition now to say, that the
proceedings contemplated by your Board are decidedly objected
to, and can not be allowed.
Yours, respectfully,
(Signed) JOHN P. WETHERILL,
Chairman of the Watering Committee.
THoMAs HARPER, Esq.
January 24, 1833.
#.
*.
Office of the Schuylkill Navigation Company,
Philadelphia, January 26, 1833.
GENTLEMEN,
By order of the Board, I enclose to you a copy of two Reso-
lutions, and a notice, a copy of which has this day been served
upon John Gotwalt. f
In making this communication, the Board are governed by a
desire to observe the same courtesy and respect for the authori-
ties of the City, which they hope has marked all their conduct.
Whatever differences may arise, they wish the City at all times
to be informed, and in the most respectful manner, of every pro-
ceeding of theirs which may be supposed to have any bearing
upon the questions between them, under any possible view of
the case. In the present instance, being well assured of their
right, they have no motive for the present communication, but
r
*
( 27 )
to evince the continued wish to observe this respect and cour-
tesy. -
I beg at the same time to confirm and repeat the notice to the
City in my note of the 24th, and the Resolutions enclosed therein.
By order of the Board,
THOMAS HARPER, Treasurer and Secretary.
To John P. WETHERILL, Esq.
Chairman of the Watering Committee.
Office of the Schuylkill Navigation Company,
Philadelphia, January 26, 1833.
Resolved, That John Gotwalt be and he hereby is discharged
from his employment as a lock keeper and toll collector at the
Fair Mount locks.
Resolved, That notice be given to the said John Gotwalt of
his discharge, and that he be required forthwith to deliver up
the possession of the house, office and land occupied by him as
lock keeper and toll collector as aforesaid, according to the pro-
visions of the 10th Section of the Act of the 10th April, 1826;
and in case of neglect or default, that he be proceeded against,
as in the said section is directed.
By order of the Board of Managers,
THOMAS HARPER, Treasurer and Secretary.
Office of the Schuylkill Navigation Company,
as " Philadelphia, January 26, 1833.
MR. John GoTwALT,
SIR,
Enclosed you will find a copy of two Resolutions adopted by
the President and Managers on the 26th instant.
In obedience to the second of those Resolutions, I now give
you notice that you are required forthwith to deliver up to
Michael Towers, the possession of the house, office and land,
occupied by you as lock keeper and toll collector at the Fair
Mount locks, and that in case of neglect or default, you will be
proceeded against, as by the said section is directed.
By order of the Board,
THOMAS HARPER, Treasurer and Secretary.
“sº
( 28 )
:** *
MR. FREDERICK GRAFF,
DEAR SIR,
The constable has been here, with directions to move out im-
mediately, and to take possession without delay, so that I can’t
stay against them all.
Your friend,
JOHN GOTWALT.
February 4, 1833.
Office of the Schuylkill Navigation Company,
Philadelphia, February 5, 1833.
DEAR SIR,
Your communication of the 31st January, enclosing a state-
ment of a case, was duly received.
This statement has been submitted to the counsel of the Com-
pany, and you will be informed of the decision of the Company
as soon as they can have the advice of their counsel.
I am, respectfully,
Your obedient servant,
JOSEPH S. LEWIS, President.
EDw ARD OLMSTED, Esq.
(A.)
MR. John GoTwALT,
I wish you to put away all your former instructions, and
be guided by this letter.
If any magistrate or constable calls on you and demands you
to give up the house you now occupy, say to him that you will
not unless instructed so to do by the Watering Committee of the
Fair Mount Water Works, as it was by them you were placed
there, and without their express orders you have determined not
to leave it. Be determined, and hold possession if you can until
the Watering Committee can find out the magistrate who prose-
cutes, in order that they may have a hearing on the subject.
Yours, truly,
FREDERICK GRAFF.
Monday, February 4, 1833.
Let me know the name of the magistrate, and where he lives,
as soon as you can ascertain it.
( 29 )
To any magistrate or constable who may be employed by the
Schuylkill Navigation Company to take possession of the toll
house at the canal opposite to Fair Mount—
GENTLEMEN, or SIR,
Before you attempt to displace Mr. John Gotwalt from the
toll house at the canal opposite to Fair Mount, I am instructed
to inform you that the said property is in possession of the May-
or, Aldermen, and Citizens of Philadelphia, who hold it as theirs
under special agreements.
Mr. Gotwalt being the gate keeper of the said canal, and em-
ployed and paid by the city, the orders under which you act
cannot have effect upon him, or the said property.
I therefore warn you to desist from making encroachments,
with a request that all matters of proceedings by you be set aside,
until the Mayor, Aldermen, and Citizens of Philadelphia shall
be permitted to have a hearing before the magistrate who may
be employed in this case, which will be duly attended to by the
City authority, so soon as the magistrate shall be known.
As the City has much at issue, it is expected that this impor-
tant matter will not be hastily forced, particularly as the laws
of the Schuylkill Navigation Company have no control or bear-
ing on the said toll house, or on the removal of the toll gate keep-
er, who was placed on said premises by the said Mayor, Alder-
men, and Citizens of Philadelphia.
By order,
FREDERICK GRAFF.
Monday, February 4, 1833.
Joseph Faulkner, of the district of Spring Garden, in the coun-
ty of Philadelphia, being duly sworn according to law, doth de-
pose and say, that he is employed by the City, at the Fair Mount
Water Works, in part to take charge of the Works, &c.; that he
has been so employed for the last six years. That on the 23d of
January 1833, the guard lock gates were found open in the morn-
ing: that Deponent and John Gotwalt the gate keeper, employed
by the City, at the guard lock gates, by direction of Mr. Frede-
( 30 )
rick Graft, the Superintendent of Fair Mount Works, fastened
the guard lock gates by placing an iron chain around the gate
posts, and secured the same by padlocks. On the same day about
noon, John Dunlap and Thomas Brown, two individuals in the
employ of the Schuylkill Navigation Company, cut the chain
and let it fall into the canal, and then opened the gates.
That on the 4th day of February, Deponent and John Gotwalt
were in the toll house (said Gotwalt having lived in the toll
house for the last eight years as toll keeper): that between nine
and ten o’clock in the morning, Joseph S. Lewis Esq., President
of the Schuylkill Navigation Company, a constable, by name
William Simpson, John Towers, and Michael Towers, and about
fifteen or twenty individuals, all of whom were in the employ of
the Schuylkill Navigation Company, entered the toll house; the
constable walked around a counter to John Gotwalt, showed him
a warrant, and told him to deliver up possession of the house.
Gotwalt showed a letter (a copy of which is annexed, marked
A) to Mr. Lewis, who, after having read it, threw it on the
counter, and told the constable to proceed to execute his warrant.
Gotwalt then desired time to remove his things. This Mr. Lewis
refused, and told him to deliver up possession immediately, that
if he gave him time, a day’s time to move his things, somebody
else might obtain possession and give him more trouble. Got-
walt then commenced moving his furniture out of the house, and
went out himself. Deponent still kept possession of the house
by remaining in it. Between four and five o’clock in the after-
noon, Mr. Graff and Mr. Olmsted came out to the toll house and
entered it. Mr. Graff told Deponent to keep possession of the
house, until he and Mr. O. could see the magistrate who issued
the warrant; Messrs. Graff and Olmsted then left the house. Im-
mediately, Mr. Lewis urged Deponent to leave the house, and
said if he did not do so peaceably, he would be put out forcibly.
Deponent said he considered he was doing his duty by keeping
possession of the house, and that he would not go out unless
forced. Mr. Lewis then told the constable to put Deponent out,
who put his hand on Deponent’s shoulder and gently pushed him
out of the house. At this moment there were in the house, be-
( 31 )
| sides the constable, Mr. Lewis and about half a dozen men, in
the employment of the Company.
Sworn and subscribed before me, an
Alderman for the City of Phila- || -
delphia, the 6th day of February,
1833, and that the annexed docu- º OSEPH FAULKNER.
ment is the one referred to in the
deposition. *.
G. BARTRAM, Alderman. J
Office of the Schuylkill Navigation Company,
Philadelphia, February 2, 1833.
There has been paid into this Office by the lock keepers of &
the Fair Mount locks, the following tolls, viz:
Amount collected by Henry H. Rodenbaugh, from
27th April to 29th September 1825, tº - $ 100 47
Amount collected by John Gotwalt, from 1st Octo-
ber 1825, to 4th January 1833, tº Ǻ - 2,961 21
$ 3,061 68
THOMAS HARPER, Treasurer and Secretary.
Ea'penses in repairs made to canal, locks, toll house, &c., op-
posite to Fair Mount, since the contract of June, 1824.
Paid Robert Walker, September 11, 1824, for cleans-
ing 1053 yards mud out of the canal, - - $ 399 06
Frederick Erdman, building bridges, repairs to toll
house, and lock gates, December 8, 1824, tºº 346 96
D. Fisher, painting lock gates, bridges, toll house,
&c., December, 1824, - sº gº tº * 90 00
Lewis Passmore, for lock gate stuff, March, 1825, 469 00
F. Erdman, two pair lock gates, and repairs to sills,
&c., May 7, 1825, - - - - - 540 00
Iron work and wickets, prepared by the city, - 300 00
W. L. Norris, building guard walls to canal and
locks, December 15, 1825, sº º º sº 100 00
Amount carried forward, - - $2,245 02
( 32 )
.#
Amount brought forward, gº - $2,245 02
F. Erdman, railing along canal banks, June 1, 1826, 235 00
John Mingle & Son, iron work to the guard lock,
April, 1827, - - - - - - 103 93
F. Erdman, for guard gates and repairs, May 30, -
1827, - - - - - - - - 328 93
Do. rebuilding ice-breaker, west side of Schuyl-
kill, November 6, 1829, * tº sº - 207 00
Do. repairs to lock gates—repairs to toll house
and building fence, October 1, 1830, º º 106 92
P. Henri, painting gates, toll house, bridges, &c., 70 00
John Lamsback, keeping lock gates, began March,
1823, per time book, and up to 1833, 10 years, at
144 dollars, wº $º wº ( ; gº - 1,440 00
$4,736 80
Add lumber, nails, &c., for all the above work, 400 20
tºº
$ 5,137 00
FREDERICK GRAFF,
January 25, 1833.
Office of the Schuylkill Navigation Company,
Philadelphia, February 14, 1833.
SIR,
We duly received, as heretofore acknowledged, your letter of
the 22d January, and on the 31st of that month, the Solicitor of
the City handed to us a project of a case to be stated for the opi-
nion of the Supreme Court. The absence of our counsel has de-
prived us, till within a day or two, of the opportunity of consult-
ing with them. **
We regretted from “the time of receiving your letter, and we
still regret, that upon a question of mere right, upon which we
had taken all pains to inform ourselves, and upon which too we
had studied to observe the utmost respect for all the authorities
of the City, there should have been manifested so determined a
disposition to characterize our conduct as unauthorized and out-
( 33 )
rageous. We regretted, and we still regret, that conduct and
language which between equals would be deemed unexception-
able, should be marked on the part of the Committee as “in-
dicative of an unbending determination to commit acts of disturb-
ance on an unquestioned possession, in disregard of the wishes of
its occupants,” and that we should be charged with using “a .
threat,” the fulfilment of which “would amount to violence,”
as well as with many other wrongs which it is unnecessary to
state in detail, as they will be readily observed on a perusal of
the letter.
To such imputations, we decline to make any reply, being
desirous still to go on in peace, and to continue to observe the
same respect towards the City authorities, which we have hither-
to observed. We are willing to acknowledge the inequality of
our condition in a contest with the representatives of the people
of this great City. They have a power over public opinion and
public feeling, with which we should in vain endeavour to con-
tend, and we have had occasion to perceive, with painful anxiety,
that ifresponsible volunteers have already come to their aid in
the newspapers, and by unfounded anonymous accusations, have
sought to inflame the public indignation against this Company,
as daring invaders of the City’s rights.
To such charges, wherever they may appear, we have nothing
to reply, but that in every step we have taken, we have proceed-
ed according to law, and under the authority of law; and if this
be offensive or deserving of reproach, it must be because, for
some reason that we are unacquainted with, this Company, in
this case, is not entitled to the protection and aid of the law.
Such an allegation we are sure the Watering Committee would
not seriously countenance, and certainly, this Company would
not submit to. But the Company cannot deem it auspicious to
a just decision of their rights, that at the moment when arrange-
ments are under consideration for a legal adjudication, means
should be employed, tending to prejudice the public mind, and
deprive them of a fair hearing.
The Company deem it but just to say, and they wish the
Councils should be distinctly informed, that they do not admit
E
( 34 )
that the measures they contemplate, (founded in their clear legal
rights,) are calculated in any degree to injure the City.
It has been stated, and perhaps many have believed, that the
lock they propose to construct, will endanger the supply of water
to the City. A very simple calculation will show that such ap-
prehensions are entirely unfounded. The mean of several cal-
culations made some years ago, of the quantity of water passing
over the dam in the driest season, is about 500,000,000 gallons,
in twenty-four hours. The quantity required for the proposed
lock would, at the utmost, mathematically estimated, allowing
ten boats an hour, be about 8,400,000 gallons, or less than two
per cent. Practically it would not be more than half that quan-
tity. Again, the quantity used upon one of the wheels, is
45,000,000 gallons, in twenty-four hours. The quantity for the
lock, would be but one fifth of what is there used upon one
wheel. No serious fears can be entertained, from so limited an
use of the water confessed to be surplus by all former calcula-
tions. If it should be intimated, that the Company may hereaf-
ter insist upon constructing other locks, so as finally to interfere
with the supply of the City, we need only answer, that it will
be time enough to guard against this danger, when there shall
be reason to apprehend that it is approaching.
We might add, as a further answer to this unfounded sugges-
tion of fear, that by raising the dam one foot higher, there can
be an addition made of not less than one sixth to the power on
the wheels, whenever such additional power may be wanted,
and this Company have already expressed their willingness, on
reasonable terms, to facilitate such a provision for the supply of
the public wants. Such an increase would counterbalance the
demand of ten locks.
In addition to what has been stated, by way of obviating un-
founded fears, we beg to recall your attention to the real in-
terest the City has in the measures we are pursuing. We have
deemed it our duty to do what we could to prevent the trade
from being diverted from its destination to the City. We sup-
pose this to have been the general wish and the intention of the
Company’s charter. For that purpose the locks at Fair Mount
were made free. But what signify free locks, if they are not
( 35 )
sufficient, as it must be admitted is now the case. The trade .
will find a deposite above the dam. The City front will be de-
serted, and (which is still worse) all the impurities from the
boats assembled on the east bank of the river, will be thrown in-
to the river above the dam, and pass immediately into the water
from which the City is to be supplied. We think it very plain,
that such a course, while it would be little detrimental, in com-
parison, to the Company, would be inexpressibly injurious to the
City; yet this is what is now actually taking place.
It is a matter of public notoriety, that boats loaded with coal
or produce have frequently, during the past season, been kept
waiting for their turn to pass the locks, sometimes as long as ten
or twelve hours. Such a delay, every one will perceive, cannot
be endured. And therefore the present inadequacy of the works
at Fair Mount, will in a short time have the same effect as if
there were no outlet at all at that point. A boat or two may
pass occasionally, but the general arrangements will not be suf-
fered to depend upon any thing so precarious as the chance of
being able to get through without a ruinous detention. If it could
so happen (as they certainly think it cannot) that the Company
might be limited, as is contended by the Watering Committee,
they would of course submit to the necessity imposed upon them,
but not without endeavouring first to make it apparent, that the
injurious consequences which would follow, were not of their
seeking, but were produced by the coercion of the authorities of
the City, against the wishes of the Company. Circumstanced as
they are, with a conviction that they have the power to furnish
the required facilities, they would be justly held censurable if
they did not furnish them. Under this sense of their duties, as
well as the sense they have of their rights, it will not be deemed
unreasonable in them to have come to the determination, that if
the navigation is to be stopped above the Fair Mount locks,
either by legal or illegal means, it shall be plainly seen that it is
owing to no fault of theirs. They have increased the facilities
throughout the rest of the line, and they are willing, if permit-
ted, to do so at Fair Mount, being persuaded that any diminu-
tion of the channel there, will finally have the same effect as a
total obstruction.
( 36 )
$
º:
It is still the earnest desire of the Company to cultivate the
most friendly relations with the City authorities. They desire,
too, if there should remain a difference of opinion, requiring ju-
dicial interposition, to have an early decision. The terms upon
which they formerly offered to concur in stating a case, have
not been acceded to, and in that respect they are new under no
obligation. Still, they are disposed to facilitate a decision, be-
cause it is wished by the Watering Committee. They have
therefore instructed their counsel to endeavour to concur with
the counsel of the City in stating a case, and they hope that this
will be received as a new proof of their deference for the wishes
of the Committee. 3. &
With respect to the case already handed by the Solicitor of
the City to this Company, the Company is advised that it is in
several particulars defective, and if it be necessary either to ac-
cept or reject it altogether, I am directed to say that the Company
cannot accept it. If, however, this Company shall be informed
that the matter may be submitted to the counsel of the respective
parties to arrange in the usual way, the counsel of this Company,
as before stated, are already instructed to facilitate to the utmost
the preparation of a case for the decision of the question.
Yours, respectfully,
JOSEPH S. LEWIS, President.
John P. WETHERILL, Esq.
Chairman of the Watering Committee.
February 18, 1833.
SIR,
I am instructed by the Watering Committee to acknowledge
the receipt of your letter of the 14th instant, in reply to mine
of January 22d. I beg leave also to inform you, that a report
has been made to “Councils” of the actual state of the contro-
versy with your Company, and they will of course direct what-
ever measures are hereafter to be pursued. ' That communica-
tion became necessary, as we had in vain attempted to bring
the dispute to an amicable termination, and you had, in disregard
of our earnest remonstrances, taken forcible possession of the
*
( 37 )
ground. Whether you “have proceeded according to law, and
under the authority of law,” is (fortunately) for neither of the
parties to decide. We are as strongly impressed with the reverse,
as you can possibly be with the position itself. And we cannot
accede to the justice of your remarks, which would deny to us
the privilege even of complaining to you of what the City has
suffered at your hands. In the inferences to be drawn from your
proceedings, we may, and as it seems we do, differ widely. But
as to the facts themselves, there can be no difference between us.
The wrong complained of is, that preferring your judgments,
and postponing ours, you have taken from the City a control over
the property at Fair Mount, which it has enjoyed uninterruptedly
since the year 1824; and that you have done this without the
sanction of any higher authority than that of parties to the con-
troversy.
“Between equals,” we have always been taught to believe
that mutual deference was due: and all we asked was, that before
the important change contemplated by you should be effected in
our relations, either mutual consent should be obtained, or the
sanction of a judicial decision should be procured. Aspiring thus,
on our part, only to be placed on equal grounds, 3/ow appear to
have discovered some “inequality of condition,” which has
enabled you to dispense, both with the previous consent of the
City, and the sanction proposed. Not satisfied with this, we fear
you smile at our tame submission, when you characterize as “the
representatives of this great City,” those who yielded possession
to your numbers, and confiding in the laws for redress, declined
opposing force to force. We regret to find in your letter an allu-
sion to newspaper publications, and we utterly disclaim any con-
nexion with them. .
We are not sorry that you have afforded us an opportunity to
correct an important error on your part, and if your measures
are in any degree to be ascribed to it, we regret that the oppor-
tunity for correction did not occur at an earlier moment. You
wish the Councils to be informed that you do not admit that the
measures you contemplate are calculated in any degree to injure
the City. It will be easy to convince you, that the injury is se-
rious, extensive, and alarming. A belief to the contrary is owing
( 38 )
entirely to the erroneous data which you have assumed. You
state that “the mean of several calculations made some years ago
of the quantity of water passing over the dam in the driest sea-
son, is about 500,000,000 gallons in 24 hours.” Instead of this,
it has been ascertained that only 162,681,418 gallons flowed
over the dam in 24 hours, when an actual measurement took
place, and the depth of the water at the top line of the dam was
#ths of an inch only. This quantity is insufficient to work six
wheels and pumps, (the buildings at Fair Mount are designed
for eight,) without any allowance of water for purposes of navi-
gation. The relative accuracy of these estimates can at any time
be ascertained. The calculations you refer to as to the flow of
water in the Schuylkill, were presumptive only. No better
proof of this need be adduced, than the fact that the Company
have, during the last year, built a dam across a ravine at the
head of the river, in order to collect the water of a small stream,
and to catch rain water, to supply their works when the river
fails. And the canal at Reading, built on elevated ground; almost
expressly for mill power, is about to be abandoned, having been
found, when applied to use, barely sufficient for canal purposes,
although the gateways had been prepared to supply many mills.
Now we will examine the quantity of water required to pass
150 boats through the present locks at Fair Mount in 22 hours
out of each 24, allowing two hours a day for unforeseen delay.
The locks at Fair Mount, on the west side of Schuylkill, mea-
sure each 80 feet long, 17 feet wide, and 6 feet 6 inches lift.
Each lock contains 8840 cubic feet, equal to 54,302 gallons, ale
In eaSUII’e. *
On the 5th of November last, 95 boats passed the locks in 14
hours, being nearly 7 boats an hour, or a passage of each boat in
less than 9 minutes, which is as fast as is practicable with one
gate keeper. The custom has been, when the trade is brisk, to
let down 4 boats in succession, and then 4 boats up in like man-
ner. Boats descending take one lock of water each. Boats
ascending take two locks of water each : or 8 boats thus passed
will require 12 locks of water. One hundred and fifty boats pass-
ing in 22 hours of each day, will consume 200 locks of water of
( 39 )
%.
54,302 gallons each, making a daily consumption of 10,860,400
gallons.
This was the greatest quantity of water which it was calcu-
lated the Navigation Company would require, when the surplus
water was purchased by the City in 1824.
Since that time, the weighing lock has been built, which will
consume, in the passage of 90 boats a day, Galls. 4,887,180
To which add the quantity for the lock now
building, tº tºº. iº *. gº º - 10,860,400
And the City loses more than the agreement
allows, - tº - - - gº Galls. 15,747,580
This is more than sufficient for half the power required to drive
one wheel. The wheels are calculated, at an eactreme, to use
each per day of 24 hours, 28,000,000 gallons.
In the months of August, September, and October last, two-
thirds of the top surface of the dam was dry, and there was not
water enough in the river to drive six wheels and pumps, with-
out drawing down the water below the top line of the dam. On
such occasion, the gates at the City works must be closed. A di-
minution of water, therefore, occasioned by the increased demand
of the Company for their locks, will render the City water works
unfit for use. It will be recollected, that during the months re-
ferred to, the water in the river is always at its lowest ebb, and
at the same time the demands of the City, even in healthy sea-
sons, are the greatest. A return of the epidemic, which during
a part of the last season prevailed, and is believed to have been
assuaged by a free distribution of water in the City and Districts,
would be attended with consequences too mournful to be contem-
plated without alarm.
Of the evils to arise to the City from the course pursued by
your Company, there cannot exist the smallest doubt. When we
calmly reflect, on both sides, that they are, in the most favourable
aspect you can present, the result of errors on the part of the
Company in their calculations of the extent of navigation which
might at a future day exist, we cannot but feel, that the interests
of the City have been sacrificed to the convenience of the Schuyl-
kill Navigation Company.
( 40 )
Your last letter will be submitted to Councils, together with
the other documents connected with this controversy. It will
be for them to judge of your concluding observations as to the
case handed by the Solicitor of the City. For ourselves, we con-
fess we are unable to perceive what object can now be gained by
a submission to the Supreme Court, which, under other circum-
stances, we ardently desired, and strongly and repeatedly urged.
The City was at that time in possession of the locks. It had con-
trol of the supply of water for the Company. This possession and
control it was desirous to retain; and when you expressed a de- .
termination to take them away, we requested an opportunity to
seek a judicial decision. Our reasonable request was practically
refused. We have lost whatever was valuable to our constituents
in the controversy, and you have gained it without the inter-
vention of an argument or a judicial decision.
Very respectfully, yours,
(Signed) JOHN P. WETHERILL,
Chairman of the Watering Committee.
Joseph S. LEwis, Esq. f
President of the Schuylkill Navigation Company.
REPORT.
To the Select and Common Councils of the City of Phila-
delphia.
The Members of “The Watering Committee” respectfully
report—
That in pursuance of the resolution passed by the City Coun-
cils on the 13th of December 1832, the Committee adopted mea-
sures without delay, to preserve the possession of the canal and
locks at Fair Mount, and to prevent encroachments upon them.
The superintendent of the water works, by whom the contract
had originally been made with the gate keeper, was desired to
give such instructions to that person, as would keep him fully
informed of the authority by which he held his place, and would
at the same time prevent a premature abandonment of it. Mr.
Graff accordingly renewed his directions to the gate keeper, and
also placed another individual on the premises, with a view to
obviate surprise, should any sudden attempt be made to injure
the property. The Watering Committee at the same time com-
municated to the gate keeper their own views of the irregularity
of the notice which he had received from the President of the
Schuylkill Navigation Company, requiring his removal from the
premises, and desired him not to give possession to any person
except the representatives of the City. They also proceeded to
remonstrate with the Schuylkill Navigation Company, as to the
course which their agents were pursuing; to complain that they
had taken the law into their own hands; and to state the obliga-
tion which was felt to oppose the measures of the Company on
the ground. The communication thus made on the 29th of De-
cember 1832, was replied to on the 1st of January 1833. This
reply contained a proposition that a conference should be held
F
( 42 )
between the counsel on both sides, in order that if they could
not agree in opinion upon the merits, they might arrange some
mode of bringing the points in controversy to an early decision.
Although this proposal was accompanied by an intimation that
the Company expected to be permitted to go on with their works,
notwithstanding the negotiation, yet as it afforded some prospect
of an adjustment, becoming parties of the character of those con-
cerned, it was gladly met and responded to by the Committee.
It will be observed, that this was the very first moment that the
urgent and repeated calls of the Watering Committee for a sub-
stitution of a legal, impartial, and authoritative tribunal, for the
mere will of the Company, had appeared to make the least im-
pression. It will also be observed, that the Company, when at
last this suggestion was made by their President, had nearly
completed the work which would deprive the City of its posses-
sion altogether. On the 3d of January, the gate keeper apprized
Mr. Graff that they were digging close by the steps of the house.
Unwilling, however, to forego the smallest chance of a proper
settlement, the Committee acceded to what they supposed was
intended by the Company, and informed them that the City So-
licitor had been instructed to unite with the counsel of the Com-
pany in preparing a case for the decision of the Supreme Court,
or in any other feasible mode of procuring an opinion which
would be binding on all parties.
The Court was actually in session. The judges, it is believed,
would not have refused to listen to an application which might
have brought the whole controversy to a close, in a period shorter
than that which usually elapsed between the communications
passing from one party to the other. But no opportunity was
afforded for either refusal or assent. On the 19th of January,
the Company reply to the ready acquiescence of the City au-
thorities in their own proposal to make arrangements to bring
the points in controversy to an early decision. No notice what-
ever is taken, in this very circumspect reply, of the distinct
offer which had been made to the Company to carry the whole
matter directly to the Supreme Court. A vague allusion indeed
is made to a future readiness, which they will reach—a readiness,
however, so indefinite, that it could not be regarded as making
( 43 ) #
any useful or practicable progress towards the object in view,
even if it had been unaccompanied by conditions which involved
a surrender of every thing which the Watering Committee, un-
der the especial instructions of the City Councils, expressed in
their resolution of December 13th, were bound to maintain.
The conditions were as inadmissible as the result of admitting
them would have been unsatisfactory. They were now stated
to be, as a preliminary, that the possession of the house should
be given up, and that the ground it stands upon must be occu-
pied by the Company.
Pausing for a moment on these conditions, we would ask what
would remain to be decided if thus much should be surrendered?
The questions between the Company and the City were already
perfectly well understood. They had been distinctly stated and
publicly proclaimed, through the medium of the opinion of the
City Solicitor on the one side, and of the letter of the President
of the Company to their counsel on the other. The former de-
clares, “that the Navigation Company, except in the case of a
neglect by the City, after reasonable notice, to make repairs or
remove obstructions, has no right to alter the condition of the
locks, canal, toll house, and ground adjacent thereto, at Fair
Mount.” The latter inquires, “whether the Navigation Com-
pany had not a right, if they see fit, to remove the lock keeper
from the present toll house at the Fair Mount dam, and to re-
move that house also, if necessary to the prosecution of another
canal and lock?” It is not our present purpose to discuss the
relative merits of the professional opinions which were received.
Suffice it, that they exhibited the points of controversy: and that
these points were exactly what the Company required, peremp-
torily, should be yielded absolutely and entirely by the City, be-
fore any arrangements whatever could be made for discussion
upon them. Need we ask, of what avail would have been dis-
cussion upon abstract rights, the whole benefit of which was
passed away ? It would have been altogether incompatible with
the alleged rights of the City, to give up the house and premises,
which were in its undoubted occupancy, and under its unques-
tioned control. Whether the Company could take this posses-
sion, was the very matter submitted by them to counsel; and if
( 44 ) * .
they should take it, they had nothing more to ask. The con-
troversy therefore was to be practicably determined as a preli-
minary; and when thus the whole evil dreaded by the City should
be accomplished, and the whole end and aim of the Company
gained, what was to follow 2 That the proposed case should be
submitted to the Supreme Court! We have said that it would
have been more than useless to proceed under such circumstances
to the argument, which, otherwise situated, we had so ardently
desired. But the Company did not even promise the satisfaction
of such an opportunity, to learn that the views of the Committee
had been correct; and although the Committee should have sa-
crificed the whole practical good, for the sake of ascertaining the
abstract right, they might have been disappointed at last, if the
Company should not chance to concur in the mode by which
the question—valueless as it would have become—should be
tried. To this effect the Committee replied to the Company;
adding, that to bring the controversy, if possible, to a point
which was substantial, the Solicitor of the City would submit to
the counsel of the Company, a case for the opinion of the Court,
which should be open to mutual modifications, such as justice
and a reciprocal regard to each others rights might require. A.
case was accordingly prepared, and communicated to the Com-
pany. Its receipt has been acknowledged, but it has neither
been accepted, modified, objected to, nor returned.
While the negotiations thus referred to were in progress, re-
course was had, by the Company, to means of obtaining posses-
sion, under the provisions of an Act of Assembly, which this
Committee cannot believe to have been designed by the Legis-
lature for such an object. An Act was passed on the tenth of
April 1826, “To protect the public in the full benefit and en-
joyment of the works constructed for the purposes of inland na-
vigation.” The tenth section of this act provides, “that if any
agent, toll collector, lock keeper, superintendent, or other per-
son, employed upon any part of an artificial navigation, &c.,
and occupying any house, office, building, or land, belonging,
thereto, shall be discharged from his employment by the mana-
gers thereof, or any one duly authorized by them, and shall not
deliver up the possession of such house, office, building, or lands,
( 45 )
together with all the books, papers, and other matters and things,
belonging to such artificial navigation, within seven days next
after such discharge shall be given to him, or left at such house,
office, or building, &c., it shall be lawful for any justice of the
peace of the county, &c., and he is hereby required, on affidavit
being made before him, setting forth particularly the grievance
complained of, and the property retained, by warrant under his
hand and seal to order any constable or other peace officer, with
such assistants as may be necessary, to enter such house, office,
or building, or upon such land, in the day time, and remove the
persons who shall be found therein, together with the goods and
chattels, out of such house, &c., and take possession of all the
books, papers, matters, and things, enumerated in such warrant,
belonging to the said navigation, and to deliver possession of
the same to the new appointed agent, toll collector, lock keeper,
superintendent, or other person, employed to receive the same.”
Notice was given by the Navigation Company, to the gate
keeper appointed by the City, employed by the City, paid by
the City, residing in a house in the possession of the City, under
this Act, and on the 4th of February, the President of the Com-
pany, a constable, and about fifteen or twenty persons, all in the
employ of the Company, entered the toll house. After full ex-
planation had been given to them of the nature of the tenure by
which the City held the property, they compelled the gate keep-
er to remove his furniture, and forced the other individual, placed
there by the Committee, to leave the house; and they have since
torn it down, and removed even its materials from the spot.
The City has thus lost a possession secured to it by a solemn
agreement with the Company, which has now forcibly taken it
away. The Committee did not feel themselves justified in op-
posing force to force, when they understood, as they did by the
notice to the gate keeper, that the proceeding was to be conduct-
ed at least by colour of legal authority. They owe it to them-
selves, however, to state, that they had no knowledge whatever
of the magistrate to whom application was to be made, or they
would have endeavoured to prevent what they cannot but con-
sider an abuse of process, and a misapplication of the provisions
of the law. They caused an appeal to be made to him, when
( 46 )
W
they learned what had been done;—but it was too late to pre-
vent the evil: the warrant had been issued and executed; and
he declined to interpose.
Although the Schuylkill Navigation Company have on this
occasion acted upon their own mere authority, and in defiance
and despite of the remonstrances, reasonings, and opposition of
the City of Philadelphia, by its official agents, they do not seem
always to have regarded themselves as clothed with such absolute
power, or even to have contemplated any independent control
over the premises at Fair Mount. In February 1832, the Pre-
sident of the Company applied to the Chairman of the Watering
Committee, stating the necessity, for public accommodation,
that additional wickets should be put into the lock gates, upon
a plan which he had pointed out to Mr. Graff, and begging the
favour of the early direction of the Chairman of the Watering
Committee in the matter. The Watering Committee, in reply,
assumed grounds altogether inconsistent with the present para-
mount power asserted by the Company, and their right to do so
has never, until the present controversy arose, been (that we
know) denied or doubted. The Chairman expressing what he
conceived to be the duty, as it was the desire, of the Watering
Committee, to observe scrupulously the faith of the City with
the Company, declined to do additional work to what had been
accepted by the Company as made in full execution of the agree-
ment. The reply, it should seem, was satisfactory; for neither
was the obligation of the City to do the thing desired, nor the
right of the Company to take it into their own hands, insisted on.
Indeed, during the late correspondence, the Company, in their
letter of January 1, 1833, intimated an expectation that they
would be permitted to go on, during the contemplated arrange-
ments for an adjustment between the counsel.
The Committee will not here complain of any want of respect
on the part of the Company, for themselves, or the opinions
which they or the regular professional functionary of the City
entertained and expressed. They will not even stop to inquire
whether the extraordinary measure of force was or was not jus-
tifiable, pending a negotiation, which, if entered into with a
mutual spirit of accommodation, might and would have averted
*
( 47 )
it. They will merely say, on this particular branch of the sub-
ject, that the alleged necessity for precipitate measures of force,
without the usual preliminary of settling the right, was certainly
to be ascribed solely to the Company, who might have given
earlier notice of their desires and designs, and thus rendered
practicable a decision in season. The object of the Committee
in making this special report, is to inform the Councils of the
actual condition of the interests of the City, as connected with
the supply of water for its inhabitants; obtained, and as was
heretofore believed, secured, at an expense which nothing but
its inestimable value could have justified.
1. Thus, the control and superintendence of the canal and
locks are no longer in the hands of the City authorities. Nothing
exists, therefore, to prevent waste, mismanagement, and conse-
quent loss of water, to an extent which may deprive the City of
its whole supply; it being only that which is not permitted to
pass through the locks, which finds its way into the City reser-
voir, and is thence conducted to the houses of the inhabitants.
2. Should there be no waste of water, the power assumed by
the Company to use it at their mere pleasure, may as effectually
deprive the City of all its supply. The additional canal and set
of locks now constructing, may be but the forerunner of others
hereafter to be made, until all the waters of the Schuylkill shall
be made tributary to the increased demand of the Company.
3. The agreement of 14th June 1824, between the City and
the Company, has become practically a dead letter; and the sum
of twenty six thousand dollars, paid by the City, in good faith,
according to its terms, is worse than thrown away.
JOHN P. WETHERILL,
Chairman of the Watering Committee.
Attest.—SAMUEL W. Rush, Register.
February 11th, 1833.

NJanaº.
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0CT 28 1943