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the provision of the Barge Canal Law, "New bridges shall be built over the canals to take the place of existing bridges wherever required or rendered necessary by the new location of the canal," does not require the construction of a bridge at Vischer Ferry because there is not at the present time even a private bridge there and there is no evidence that any bridge ever existed at this point save such as was built by the Vischer Ferry Bridge Company. No attempt, therefore, has ever been made by any municipality or by the State to supply the needs of the community by a crossing at this point. The construction, therefore, of a bridge at this point is not within the contemplation of the Barge Canal Act, and the application of the residents of Clifton Park for the construction of such a bridge must be denied. Yours very truly,

EDWARD R. O'MALLEY,
Allorney-General.

Barge Canal Contract No. 12.

Dredging Oneida river at Three Rivers. Complaint of Sweet Bros. Paper Manufacturing Company against contractors for muddying waters. State not liable for damage resulting from improvement of channel for navigation, and need not make further appropriation of waters.

STATE OF NEW YORK,

ATTORNEY-GENERAL'S OFFICE,

ALBANY, May 11, 1909.

Hon. FRANKLIN M. WILLIAMS, State Engineer and Surveyor, Albany, N. Y.:

Dear Sir.- Replying to your favor of the 16th ultimo., inclosing communication from Messrs. Battle & Marshall, in relation to the complaint of Sweet Brothers Paper Manufacturing Company against Stewart-Kerbaugh-Shanley Company for muddying the waters of the Oswego river, Contract 12, I beg to say that an examination of the statement of Messrs. Battle & Marshall and the provisions of Contract No. 12 disclose the following facts:

The contractors on this contract are engaged in the dredging of the Oneida river at or near Three Rivers. They are using in this work a hydraulic dredge. At Three Rivers the Oneida and Seneca rivers unite to form the Oswego river. At some distance down the Oswego river from Three Rivers is located the plant of Sweet Brothers Paper Manufacturing Company at Phoenix. This company is engaged in the manufacture of delicate papers, and in the process of their plant they use the water of the Oswego river. The contractors in their operations at and near Three Rivers stir up, scour and thereby muddy the waters in which they are dredging. These waters, as they flow down the Oswego river, carry quantities of this scour or silt which injure the Sweet Brothers Paper Manufacturing Company in the manufacture of paper. The contractors desire the State to appropriate from the Sweet Brothers Paper Manufacturing Company whatever right it may have to having maintained the waters of the Oneida and Seneca rivers in which the contractor is operating in a clean unmuddied condition.

You request my opinion as to whether the State or the contractor can be held liable for the damage claimed from the foregoing circumstances. I have received from Messsrs. Battle & Marshall copy of the statement sent to you and also a copy a memorandum of authorities applying to this situation.

The Oneida and Seneca Rivers are navigable streams and, therefore, the rights of the State for the purposes of navigation in the waters and beds of these streams are paramount to all others. The cases submitted by counsel for the contractor show that Sweet Brothers Paper Manufacturing Company can have no claim for damages against the State for the use that is being made of the waters in which the contractors are carrying on their operations. It seems that the condition complained of is a necessary result of the dredging being carried on at that point. It is, therefore, a condition resulting from the exercise by the State of its power of improving the channel of the Oneida and Seneca rivers for the purpose of navigation.

The state must provide contractors on Barge canal contracts with possession of the necessary lands, structures and waters for the carrying out of their contracts. It is not, however, called

upon to enter into the field of speculation as to possible rights, such as are claimed in this case, and it is my opinion that the State should not make the appropriation desired because it is of such an indefinite and uncertain nature, and since it is conceded by the parties making the request that there is a good and sufficient defense to the claim advanced by the paper company.

I, therefore, beg to advise you that there is no liability on the State for the alleged damages caused, nor do I believe that there is any on the part of the contractor, as he is conducting his work as an agent of the State.

I return herewith the communication from Messrs. Battle & Marshall.

Yours very truly,

EDWARD R. O'MALLEY,
Attorney-General.

Barge Canal-Contract No. 11.

Contract with Fort Orange Construction Company. Contractors required to furnish directly from excavation of prism of canal material for use in second-class embankment. Word "structures," as used in specifications applies to whole channel of the canal.

STATE OF NEW YORK,

ATTORNEY-GENERAL'S O FICE,

ALBANY, May 11, 1909.

Hon. FRANKLIN M. WILLIAMS, State Engineer and Surveyor, Albany, N. Y.:

Dear Sir. I have a communication from Special Deputy State Engineer William B. Landreth, dated May 3, 1909, inclosing copy of a letter to him from G. F. Stickney, Supervising Engineer, dated May 3, 1909, with reference to interpretation of certain specifications in Barge canal Contract No. 11. There

is in this contract with the Fort Orange Construction Company the following specification:

"The sequence and rate of progress of excavation shall be so arranged that all earth between Stations 220 and 273 suitable for forming first-class embankment may be transported directly from the excavation to its place in embankment, and so that a sufficient amount of earth not required for first-class embankment or a sufficient amount of rock may be transported directly from the excavation to its place in second-class embankment. The excavation for the canal structures shown on the plans provide ample material for forming second-class embankment, and the contractor will not be paid for excavating any material from borrow pits for this class of embankment.

"Work on all structures backed by embankment shall be prosecuted at such rate and in such order that there shall always be a supply of available unexcavated material for forming the embankment."

It seems that the total amount of excavation under the contract amounted to 680,245 cubic yards, of which there has been constructed at the present time 429,086 cubic yards, leaving unexcavated 251,159 cubic yards; that the embankment of all classes amounted to 362,543 cubic yards, of which there has been constructed a total of 115,195 cubic yards, leaving unconstructed 247,148 cubic yards. There seems to be available enough excavation of the kind suitable for first-class material and of so-called second-class material, provided the contractor has to use that excavated from the prism of the canal.

You desire my opinion as to whether the contractors can be required to furnish for the embankment for second-class material excavations throughout the prism of the canal, and as to the meaning of the word "structures" as used in the foregoing specification.

While the word "structures" is ordinarily defined as something built up of materials put together, it may have, through the agreement of the parties to a contract, a different meaning.

It is my opinion that, under the circumstances of the present case, the use of the word "structures" involved not alone the masonry or built-up structures within the site of the contract, but also the remainder of the channel or prism of the canal within the site of the contract. The engineer's estimates of quantities. showing how much excavation would be required of the various classes for embankment and how much of those materials could be obtained from the excavation for masonry structures were known at the time the parties entered into the contract, and even if the contractor did not know them he has stipulated in his contract that he has satisfied himself by his own investigation as to the estimates. He, therefore, knew or should have known that there was not sufficient materials from the excavation for masonry -tructures to make the embankment, and by signing the agreement, the carrying out of which involved the use of more material than could be excavated for merely masonry or other built-up structures, he became a party to the application of the word "structures in a broader sense, to wit: the whole channel or prism of the canal. This theory is fortified by the following quotation from the specification:

"The excavation for the canal structures shown on the plans provide ample material for forming second-class em bankment, and the contractor will not be paid for excavating any material from borrow pits for this class of embankment."

I am, therefore, of the opinion that under the special circumI stances of this case the word "structures" applies to the whole channel of the canal where there is excavation and that the contractor is required to transport directly from the excavation the material suitable for use in second-class embankment.

Yours very respectfully,

EDWARD R. O'MALLEY,

Attorney-General.

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