1 $81. Preference upon sale of surplus waters.- When the 2 canal board shall order a sale of surplus waters to the 3 use of which no person shall be first entitled, as the 4 owner of works before such time legally used, according 5 to the preceding provisions of this article, the owner 6 of the land upon which the surplus waters shall flow, 7 and the owner of lands adjoining any dam erected by 8 the authorities in charge of the canals, by which surplus 9 waters shall be created, shall be entitled to the first 10 privilege of taking such waters subject to the provisions 11 of this article, so far as the same may be applicable; 12 and the superintendent shall have the same powers in 13 relation to all such surplus waters as are given in this 14 article, in respect to surplus waters, by which hydraulic 15 privileges are benefited.

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R. S., 747, § 86. (Post, p. 2990.)

§ 82. Ascertainment of value.- When the owner of any 2 lands over which surplus waters shall flow, or the owner 3 of land adjoining any dam by which surplus waters shall 4 be created, are entitled to the use of such waters, and 5 shall make application for such use, the superintendent 6 of public works may request the canal board to estimate 7 the value of such water, and the board shall make such 8 estimate and include therein the value of any use of 9 such water, which such owner may have had previous 10 to obtaining a lease therefor, and within ninety days 11 after notice of such appraisal, the owner shall pay the 12 amount of such value into the treasury.

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R. S., 748, § 87. (Post, p. 2990.)

§ 83. Waiver or forfeiture of right.- If any such owner 2 shall omit for three months after being notified by the 3 superintendent of public works to that effect to apply 4 for a lease of such water, or shall neglect to comply 5 with any of the provisions of this article, the canal 6 board shall order a sale of such surplus water.

R. S., 748, § 88. (Post, p. 2991.)

1 § 84. Withholding authority to lease.- When in the 2 opinion of the canal board a lease of surplus waters will 3 not confer upon the lessee any right or authority to use 4 the same without the consent of the owner of the land 5 over which such surplus waters shall flow, it shall not 6 authorize the letting of the same, without evidence that 7 the consent of such owner has been given to such use. R. S., 748, § 89. (Post, p. 2991.)

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$ 85. Proceedings on sale of water.- When a sale of 2 surplus waters shall have been directed by the canal 3 board, the superintendent of public works shall sell and 4 convey such surplus waters in the following manner: 5 1. Each privilege of using such water shall be sold 6 separately at public auction to the person bidding the 7 highest annual rent therefor.

8 2. The place of sale shall be in the vicinity of 9 the place where the water may be most conveniently 10 used.

11 3. A notice stating the time and place of the sale 12 and the privilege to be sold, shall be published twice 13 in each week for six weeks successively immediately 14 preceding the sale, in the state paper, and once in each 15 week for the same time in two newspapers published in 16 the county where the water is to be sold, one of which 17 shall be in the town where the privilege is situated, if 18 any newspaper is published therein.

19 4. A lease for such a term of years as shall have been 20 directed by the canal board shall be executed by the 21 superintendent in the name of the state to the pur22 chaser, reserving the rent bid, and containing a covenant 23 that it shall be paid annually to the commissioners of 24 the canal fund, and a condition, that if it remains 25 unpaid for one year after it is due, the lease shall be 26 forfeited to the state, and a reservation of the right 27 wholly to resume the waters conveyed and the privi28 leges granted, and to control and limit the use of such 29 water and privileges, whenever, in the opinion of the 30 canal board or of the legislature, the necessary supply

31 of water for the use of any state canal, or the safety of 32 such canal or works connected therewith, shall render 33 such resumption, control or limitation necessary; and a 34 provision, that where such resumption is made, or con35 trol or limitation imposed, no compensation or damages 36 shall be allowed for any improvements or erections 37 made in consequence of such lease; and a further reser38 vation of the right of the state, without making any 39 compensation to the purchaser, to wholly abandon or 40 destroy the work by the construction of which such 41 surplus waters shall have been created, whenever in the 42 opinion of the superintendent the occupation and use 43 of such work shall cease to be advantageous to the state. 44 5. A duplicate of such conveyance under the hand and 45 seal of the purchaser shall be executed and delivered by 46 him to the superintendent of public works, who shall, 47 without delay, procure the same to be recorded in the 48 clerk's office of the county in which the privilege sold 49 shall be situated and transmitted to the commissioners 50 of the canal fund.

51 6. All the expenses attending the execution of the 52 conveyance and the recording thereof shall be paid by 53 the purchaser.

R. S., 748-9, § 90. (Post, p. 2991.)

1 § 86. Revocation of leases.- When the canal board shall 2 be satisfied that any lease of surplus waters heretofore 3 granted by the authorities in charge of the canals, is 4 invalid or conveys no right to use such waters and may 5 expose the state to claims for remuneration, it may 6 revoke and annul such lease, and direct the repayment 7 to the lessee of any moneys received on such lease, with 8 interest from the time of payment, which shall be paid 9 accordingly on the warrant of the comptroller from any 10 funds available for that purpose.

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R. S., 749, § 91. (Post, p. 2992.)

§ 87. Right of purchase upon partial resumption.— If 2 there shall be a partial resumption only of the waters

3 so sold, the purchaser shall be entitled to the use of the 4 remaining water privileges for the remainder of his term 5 on the payment of such reduced rent as shall be fixed 6 by the canal board. If he shall refuse to accept the 7 remaining privileges at the reduced rent, they shall be 8 sold by the superintendent of public works under the 9 direction of the canal board.

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R. S., 749, § 92. (Post, p. 2993.)

§ 88. Erection of walls; prohibition of waste gates.- At 2 any place where waters are taken from any canal or 3 work connected therewith for hydraulic purposes, 4 except at Black Rock, at the mouth of Tonnewanta 5 creek, and at the locks at Lockport, and except where 6 such waters are taken from a dam across a stream which 7 is used as a feeder, or from a feeder now navigable, the 8 superintendent of public works shall construct a perma9 nent wall or erection of stone laid in mortar and 10 cemented, of sufficient thickness to insure the safety of 11 the canal, not less than six inches lower than the top 12 water line of the canal.

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No waste gate, sluice, slide, water-gate or other passage 14 shall be made in connection with any wall or erection 15 over which water is to be drawn in such manner that 16 the same can be opened, or that water can be drawn by, 17 through or under the same, to the use of any mill or 18 machinery, using water from the canal, except at the 19 four places herein excepted.

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R. S, 750, § 94. (Post, p. 2993.)

$ 89. Discharge of water.- Every owner of any water 2 privilege upon any canal shall discharge the waters 3 owned by him at such place or places as the superin4 tendent shall direct, whenever the navigation or safety 5 of the canal or any of its works shall be benefited by 6 such direction.

R. S., 750, § 96. (Post, p. 2993.)

1 § 90. Discharge of surplus waters on Rome level.- The 2 surplus waters in the western portion of the Rome level

3 of the Erie canal shall at all times be discharged through 4 the culverts of the locks at the western end of the 5 level, so far as the capacity of such culverts shall per6 mit, and in no case, except to guard against danger to 7 the banks of the canal, in the discretion of the super8 intendent of public works, shall any such surplus 9 waters be discharged into the channels of Limestone 10 and Butternut creek.

R. S., 751, L. 1879, ch. 269. (Post, p. 2995.)

L. 1884, ch. 294.

1 § 91. Surplus waters on the Oswego canal. The super2 intendent of public works may permit the surplus water 3 flowing over any of the dams on the Oswego river, 4 except the dam nearest the former village of Oswego, 5 to be used for hydraulic purposes, by the owners of 6 the lands upon which such waters may flow, under such 7 regulations and restrictions as he may impose, and 8 subject to be resumed partly or wholly, whenever he 9 shall deem best, without any right of the person receiv10 ing such permission to claim any damage or compensa11 tion for such resumption. Such permission shall not be 12 given to use any water on the level of the Oswego 13 canal.

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R. S., 750, L. 1839, ch, 316. (Post, p. 2994.)

§ 92. Proceedings for non-payment of rent of surplus 2 waters of Black Rock harbor.-Before declaring any lease 3 for surplus waters of Black Rock harbor forfeited for 4 the non-payment of rent due thereon, the comptroller 5 shall give at least six months notice in two newspapers 6 published in the county of Erie, that the same will be 7 forfeited, unless the rents due shall then be paid, with 8 the costs of such advertising. If such rents shall not be 9 then paid, the canal board may direct that any separate 10 privilege of taking and using water included in such 11 lease, the rent on which separate privilege has been 12 regularly paid, and which shall be occupied and applied 13 to any machinery, shall be separately exposed to sale,