Record and brief — James Irwin, Appellant, vs. The United States

S906.

SUPREME COURT OF THE UNITED STATES,

No. 100.

JAMES [RWIN, APPELLANT,

vs.

THE UNITED STATES.

APPEAL FROM THE CIRCUIT COURT U. S., FOR THE WESTERN DIS-

TRICT OF PENNSYLVANIA,

INDEX.

Original. Print,

1

Bill in equity. .ccecccccvescevcscccccncceerscegssseeseeeersesssesees

Notice to defendant. ..cccccecccccvesccccccccesesaccsccccccccccccess§ 12

Subpoena. .cccccccccccccccsccccescvcccccccccessssecsccccssccscccses§ IZ

Order to issue injunction... .ccccccccccccccccccegrccccsscccsccccsccee 14

Writ of injunction arid marshal’s return..ceccsecccscccscccecececsenecs 14

Answer of defendant. .cccccccccccccccncccvccceccccsccccccccconcccee§ 1G

Replication to answer. oc coccccescccgcccceccoccccccscccqeececescces

DIGETOS. ocecccccccecccmcccccnceceweeeecccencceccescccoesecoseees

Appeal prayed and allowed... cccccccccccvrecccccccccccccscccccwceeece

Affidavit of George Ledlei, of value of matter in controversy....escceeee 32

Exhibit “A? referred to in bill... ccccccccceqccccccccvccccccccccqcees

a MTTTITTE TILT TITT TITTLE OTT TTL Le

$C” cocccccccccccccc ccc cece cece ce cccngececoseceneenscese

Exhibit “A” referred to in answer..sccccccccccccscccceseseseosesses:

Depositions on part of complainants...ecscccccsescccqessssecccscess

Deposition of Thomas J. Rodman..cccscccccccccscccccecccccesesess

‘- Wm. V. Robinson, on part of respondent..cccecscsseeee 51

Giles S. Bates, on part of complainants...ssssccssseveees 52

‘Wm. Jancey 6 o eccccccccccccccene ST

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9347

Irwin vs. The United States.

Among the rolls, records, and judicial proceedings of the circuit court

of the United States, for the western district of Pennsylvania, may be

found the following words and figures, viz:

No. 1 of May term, 1852.—Bill in equity, filed February 14th, 1852.

Tse UnitTep STaTes oF AMERICA

vs. In equity.

James Irwin.

Bill in equity.

To the honorable the judges of the circuit court of the United States,

for the western district of Pennsylvania.

The United States of America bring this their bill against James

frwin, a citizen of the State of Pennsylvania; and, thereupon, your

orators complain and say:

That William F. Hamilton and William V. Robinson, by force and

virtue of divers conveyances and assurances, had become and were, on

the 26th day of November, A. D. 1836, seized in fee, subject to a cer-

tain rent charge, of and ina certain lot of ground situate im Peebles

township, in the county of Allegheny, in the State aforesaid, and within

the western district aforesaid, together with certain rights and privileges

thereto appurtenant, among which was the right and _ privilege to use

the water of a certain spring situate near the said premises and lot of

ground, béing the spring by which the woollen factory of the said

Hamilton and Robinson was then supplied; and being so seized, the

said ‘William V. Robinson and Mary Ann, his wife, and the said Wil-

liam EF’. Hamilton, by their joint deed, dated the day and year last

aforesaid, did then, for the consideration of two thousand dollars paid

unto them by your orators, grant and convey in fee unto your orators

the rightand privilege to use, direct, and carry away from the said fountain

or spring so much water as would pass through a pipe or tube of equal

diameter with one that should convey the water from the said spring,

upon the same level therewith, to the said woollen factory of the said

Hamilton and Robinson, and to preceed from a common cistern or

head, to be by your orators there erected; and to convey and conduct

the same by tubes or pipes through the premises of the said grantors

in. a direct line or as nearly as practicable thereto; and the privilege of

entering upon the premises of the said grantors for the purpose of lay-

ing, and when necessary altering, the said pipes or repairing them; also

the privilege of erecting and repairing such cistern or reservoir or other

erection as might be deemed necessary for preserving the said water

for the use aforesaid; and also, all other rights and privileges in com-

mon with the said grantors, their heirs and assigns, which were secured

(Rec. c, D. T., 1853.]—1 |

>. Irwin vs. The United States.

by the several deeds therein recited and mentioned, under which they

the said grantors held and enjoyed the said water-right and privilege

with the appurtenances, as will fully appear by reference to the said

deed from the said Hamilton and Robinson to your orators, a true copy

of which marked ‘‘A”’ is herewith filed and made part of this your

orators’ bill.

And your orators allege and submit that by virtue of the said grant

made to them by the said deed as aforesaid, according to the true mean-

ing and intent, of the said deed, marked ‘‘A,’’ they became, were and

are tenants in common in equal shares with the said grantors and their

assigns, of the said water-right and privilege, and might then and still

may rightfully draw from the said common vessel or cistern for their

use one equil half part of said water, and conduct the same by proper

and convenient pipes through the premises of the said grantors and

their assigns, to be used by your orators at their arsenal situate in the’ vi-

cinity of the said spring, for the supplying of which with water the

said water-right was purchased by your orators as aforesaid.

And your orators further say and aver, that the construction and in-

terpretation of the said deed to them from the ‘said Hamilton and Rob-

inson herein before stated, and claimed by your orators to be the true

and proper one, was the construction and interpretation at all times

given thereto by the said Hamilton and Robinson, the grantors in said

deed, while they the said grantors continued to hold, use and enjoy the

said water-right and privilege in common with your orators; and that

such was the construction and interpretation given thereto by one Wil-

liam Black, in whom the estate, right, title and interest of the said Ham-

ilion and Robinson in the said premises afterwards became vested; and

by whom (the said William Black) the same was, by deed dated the

13th day of January, A. D. 1848, granted and conveyed to the said

defendants. And your orators further say, that in the said last men-

tioned ‘deed accepted and taken by the defendant from the said William

Black, the said grant and conveyance made by the said Hamilton and

Robinson to your orators as aforesaid is mentioned and referred to; and

is distinctly declared to be a grant and conveyance of one-half of the —

water of said spring, as will appear by reference to the said deed from

the said William Black to the said defendant, a true copy of which,

marked “‘B,’’ is herewith filed and made part of your orators’ bill.

And your orators further say, that after the said grant made to them

us aforesaid, in exercise of the rights thereby conferred on them, they,

by their servants and agents in that behalf, did, in the year of our Lord

1837, enter on the said premises in which the said spring is situated,

and did build and construct a common vessel or cistern to receive the

water of said spring for the common use of your orators and the said

Hamilton and Robinson. ‘That the said vessel or cistern was then and

continued to be pierced with two circular holes or tubes of equal di-

ameter, having their axes horizontal or level, and of equal depth below

the navlace of the water in the said vessel ov cistern; one of said holes

or tubes being intended for the supplying of the said arsenal of your

‘oe «

ee.

J90 6

orators, and the other for the supplying of the said works or factory of

the said Hamilton and Robinson. ‘That your orators also proceeded

to lay through the premises of the said Hamilton and Robinson pipes

for the conveyance of the water drawn from said vessel or cistern by

one of the said holes or tubes, to their arsenal. |

And your orators further say, that during the time in which the said

vessel or cistern was being built and constructed and pierced as afore-

said, and while the said pipes for conveying the water therefrom to the

said arsenal were being laid as aforesaid, the said Hamilton and Robin-

son, then tenants in common with your orators of the use of said wa-

ter, were frequently present and observed the said arrangements and

Irwin vs. The United States.

. means then being made and adopted for the division of the said water

between them and your orators, and for the conveyance of your orators’

part and share thereof to the said arsenal; and that they, the said Ham-

ilton and Robinson, made no objections thereto, but on the contrary, as

your orators believe, fully and entirely approved of the same.

And your orators further say, that the said means and arrangement

for the drawing out and carrying away of your orators’ share and por-

tion of said water, then adopted and put in use with the approbation

of the said Hamilton and Robinson, have continued from that time

and still continue the same and without change; and that your orators

continued, by means of the said arrangements herein before described,

to draw off and conduct away their part and share of said water to

their said arsenal, without any interruption, hindrance, objection or

complaint from the said Hamilton and Robinson, or their grantees, for

a period of some twelve years.

And your orators further say, that they have not at any time hereto-

fore drawn out, carried away or used, nor do they now draw out, carry

away or use, more than one equal half part of said water, and have,

as they believe, in all things and respects, kept and do still keep them-

selves strictly within the limits of the rights and privileges so granted to

them by the said Hamilton and Robinson, as aforesaid.

But now so it is, that the said defendant, confederating, &c., and

contriving to injure your orators in the premises, and to hinder them

from fully and freely using and enjoying their proper share and part of

the said water, and thereby, as your orators believe, to compel them to

purchase the right to the residue of the water of said spring from him,

the said defendant, the present owner thereof, at an exorbitant price,

he, the said defendant, after his said purchase of the residue of said

water from the said William Black, began to pretend and now pretends

that your orators are and have been using a quantity and part of said

water greater than that to which they have a legal right, and have

been and are using a pipe for the conveyance of the water of said

spring to.said arsenal which is over four times the capacity of that con-

tracted for with the said Hamilton and Robinson; and the said defend-

ant further pretends that your orators are restricted by the terms of the

said grant from Hamilton and Robinson to the use of a pipe for the

conveyance of said water from said spring to said arsenal, of uniform

4 : Irwin vs. The United States.

diameter throughout its whole length from said spring'to said arsenal; -

whereas your orators charge the contrary of all such pretences to be

true, and aver that inasmuch as the distance of said arsenal from said

spring is five hundred and forty-seven yards, while the distance of the

said defendant’s factory and works from said spring is only about one

hundred and forty-four yards, if the water were conveyed from said

spring to said arsenal by a pipe of the proper size at its insertion in said

vessel or cistern, and preserving the same size or diameter throughout

its whole length from said spring to said arsenal, your orators would not

thereby be able to receive one-half of said water, in consequence of the

greater resistance offered to the flow of the water in the said pipe by

reason of its length, being more than three times the length of the pipe

used by the said defendant. .

And your orators further charge, that after your. orators and the said

defendant have drawn from the said common vessel or cistern their re-

spective shares and portions of said water by holes or tubes made or

inseried in said vessel of equal size and diameter, and on the same level,

that each of said parties may then carry and convey away the water so

drawn out by a pipe. or pipes of such size and diameter ‘as each may

think proper and see fit to adopt, and that neither your orators nor the

said defendant are resiricted to the use of a pipe of the saine diameter

or bore throughout its whole length, as at the point of insertion in the

said vessel or cistern.

And your orators further charge, that the said defendant, at the time

he purchased the said premises from the said William Black as afore-

said, well knew the extent of the right and privilege granted to and

claimed by your orators under the said deed to them from Hamilton

and Robinson; and that he was well aware that said grant to your

orators gave them a right to the one-half part of the water of said spring;

and that it is so declared and expressed in the deed from said William

Black to him under which the defendant, as your orators are informed

and believe, claims title. | i

And your orators further charge, that the said defendant threatens

and intends, unless your orators comply with his said unreasonable and

unjust demands, to cut off the said pipes by which the said water is

conveyed from said spring to your orators’ said arsenal, and wholly de-

prive your orators of the use of said water; and has addressed to Major

Bell, your orators’ officer in command of said arsenal, a letter dated

January 16th, 1852, containing divers such threats, of which said letter

a true copy marked ‘‘C”’ is herewith filed and made part of this bill.

And your orators further charge, that if said defendant should exe-

cute his said threats and cut. off said pipes, it will greatly hinder and

interrupt the works and operations carried on at your orators’ said arse-

nal, and do and cause to your orators great and irreparable injury and

mischief, and that the said defendant ought to be restrained therefrom,

and from.in any wise disturbing, interrupting or interfering with the

arrangement and means employed and adopted by your orators for the

conveyance of the said water of said spring to their said arsenal as

Irwin vs. The United States. II1f

aforesaid. All which actings, doings, pretences and threats are con-

trary to equity, and tend to the manifest wrong, injury of your orators

in the premises. In consideration whereof, and for as much as your

orators can have adequate relief in the premises only in a court of

equity, where matters of this kind are properly cognisable and relievable:

To the end, therefore, that the said James Irwin, the defendant, may,

if he can, show why your orators should not have the relief hereby

prayed, and may upon his corporal oath and according to the best and

utmost of his knowledge, remembrance, information and belief, full,

true, direct and perfect answer make to all and singular the matters

and things herein before set forth, alleged, charged and averred, as fully

and particularly as though he was specially interrogated thereto.

And that the said defendant may be restrained by the injunction of

. this honorable court from disturbing, molesting, cutting off or in any

wise injuring the pipe or pipes which convey the water from the said

spring to your orators’ said arsenal; and from disturbing, breaking, or in

any wise injuring the said vessel or cistern from which the said water

for the use of your orators’ arsenal is supplied as aforesaid; and from

doing all and any act or acts, thing or things which would cut off or

diminish the quantity of water which your orators now receive from the

spring aforesaid for the use of their said arsenal.

May it please your honors to grant unto your orators, not only the

United States writ of injunction under the seal of this honorable court,

to be directed unto the said James Irwin, to restrain him, his servants,

workmen and agents from disturbing, molesting, cutting off or in any

wise injuring the said pipe or pipes which convey the water from the

said spring to your orators’ said arsenal; and from molesting, disturbing,

breaking or in any wise injuring the said vessel or cistern from which

said water, for the use of said arsenal, is supplied as aforesaid; and from

doing all and any act or acts, thing or things tending to cut off or

diminish the quantity of water now received from the said spring for the

supply of the said arsenai; but also the United States writ of subpcena

to be directed to the said James Irwin, thereby commanding him at a

certain day and under a certain pain therein to be limited, to be and

appear before this honorable court, then and there, full, true, direct and

perfect answer make to all and singular the premises, and further to

stand to, perform, and abide such further order, direction and decree

therein, as to your honorable court shall seem meet, &c.

And your orators will ever pray, &c.

“ J. BOWMAN SWEITZER,

District attorney.

JAMES J. KUHN,

Attorney of complainants.

Whereupon the following notice and subpcena were issued and served

by the marshal:

~ CE eR,

6 Irwin vs. The United States.

The Untrep StTATEs oF }

AMERICA

vs.

JAMES IRWIN.

T’o James [rwin, the defendant above named.

No. 1, of May term, 1852—In equity.

You will please to take notice that a bill in chancery in the above ©

case has been filed in the circuit court of the United States for the

western district of Pennsylvania, praying for an injunction to restrain

you from cutting off the pipes of the United States supplying their

arsenal with water; and that on Tuesday next,at 10 o’clock, a. m., of

said day'a motion will be made in said court for an injunction as in

said bill prayed, &c. ; J. BOWMAN SWEITZER,

February 14th, 1852. | District attorney.

Copy of subpena.

UnITED SratTes oF AMERICA,

Western district of Pennsylvania, ss.

The President of the United States, to James Irwin.

For certain causes offered before the circuit court of the United States,

in and for the western district of Pennsylvania, in the third

[eeau.] circuit; in the bill in quity, of the United States of America:

We command, and strictly enjoin you, James Irwin, that laying

aside ali other matters, and notwithstanding any excuse, you per-

sonally be and appear before the judge of the said court, at a session

of the same court, io be holden at Pittsburgh on the first Monday of

April next, to answer concerning those things which shall then and

there be objected against you, and to do further and receive what

the said court shall have considered in this behalf.’ And this you

are In no wise to omit, under the penalty of ten thousand dollars. -

Witness the honorable Roger B. Taney, chief justice of the Su-

preme Court of the United States, at Pittsburgh, this fourteenth day

of February, A. D. 1852, and of the independence of the United

States the seventy-sixth. :

Ht. SPROUL, Clerk.

The defendant is required to enter appearance in this suit on or

before the return day of this writ, otherwise the bill may be taken pro

confesso. . oe

And afterwards, to wit, on the 17th day of February, 1852, the

motion for an injunction in this case came on to be heard, and was

argued by counsel; and after full hearing and due consideration, it is

ordered that the injunction issue, as prayed for in complainants’ bill

of complaint, until answer filed and the further order of the court.

Whereupon, to wit, February 17th, 1852, the following injunction

was. issued : |

ETO Ne Oe te ”

II

Irwin vs. The United States.

Copy of injunction.

In the circuit court of the United States, for the western district of

Pennsylvania.

The President of the United States, to the marshal of the western

district of Pennsylvania, greeting:

And to James Irwin, of Alleghany county, in the State of Pennsyl-

vania, and to counsellors, attorneys, solicitors and agents, and all

other persons, and each and every of them.

Whereas it has. been represented to usin our circuit court, in equity,

for the western district of Pennsylvania, on the part of the United States,

complainant, that they have lately exhibited their bill of complaint in

our said court against you, the suid James Irwin, to be relieved touch-

ing the matters therein complained of, in which bill it is stated, among

other things, that you are contriving and confederating to injure the

said complainants touching the maiters set forih in said bill, and that

your actings and doings in the premises are contrury to equity and good

conscience:

We therefore, in consideration thereof, and of the particular maiters

in suid bill set forth, do strictly enjoin you, the suid James Irwin, and

all other person or persons, and each and every of you, under the pen-

alty of ten thousand _, to be levied of your lands and tenements,

goods and chattels, to our use, that you do absolutely desist and refrain

from cutting or injuring the pipe or pipes, tube or tubes, leading from

a cistern or spring to the Allegheny arsenal, or from injuring or hinder-

ing the passage of the water from the said spring to said arsenal; and

from disturbing or in any wise injuring the vessel or cistern by which

the full supply. of the water to the suid arsenal may be hindered, as set

forth in the bill of complaint of the United States, until answer filed

and the further order of this court.

Witness the Hon. Roger B. Tanev, esquire, chief justice of the Su-

preme Court of the United States, at Pittsburgh, this sevenieenth day of

February, A. D. 1852, and of the independence of the United States

the seventy-sixth.

[SEAL. ] H. SPROUL, Clerk.

matured: served ie ee 18th, 1852, by

JOHN DICKEY, Marshal.

Whereupon, to wit, April 5th, 1852, the following answer was filed:

Answer.

To the honorable the judges of the circuit court of the United States,

for the western district of Pennsylvania.

The answer of James Irwin, defendant, to the bill of complaint of

: the United States of America.

This defendant, now and at all times hereafter saving and reserving

unto himself all benefit and advantage of exception which can or may

§ Irwin vs. The United States.

be had or taken to the many errors, uncertainties and other imperfec-

tions in the said complainants’ bill of complaint contained, for answer

thereunto, or unto so much or such parts thereof as this defendant is

advised is or are material or necessary for him to make answer unto, this

defendant answering, saith: That true it is that the said William F’.

Hamilton and William V. Robinson, in the complainants’ bill men-

tioned, were seized of the premises therein described, together with the

privilege of using the water of a certain.spring situated near the said

premises, as appurtenant thereto; and that they being so seized, did,

on the 26th day of November, A. D. 1836, grant and convey unto the

complainants the right arid privilege to use, divert and carry away

from the said spring so much water as would pass through a pipe or

tube of equal diameter with one that should convey the water from the

said spring, upon the same level therewith, to the factory of the said

grantors, and to proceed from a coinmon cistern or head to be erected

by the said complainants; and to convey and conduct the same by

tubes or pipes through the premises of the said grantors in a direct line,

or as nearly as practicable thereto; and the privilege of entering upon

the premises of the said grantor for the purpose of laying, and when

necessary altering, the said pipes, or repairing them; and also the pri-

vilege of erecting and repairing such cistern or reservoir, or Other erec-

tion as might be deemed necessary for preserving the said. water for

the use aforesaid; and also all other rights and privileges in common

with the said grantors, their heirs and assigns, which are secured by

the several deeds therein recited and mentioned, under which they, the

said grantors, held and enjoyed the said water-right and privileges, and

the appurtenances; and that the defendant afterwards became seized

by divers good and sufficient conveyances, as alleged, of all the right,

title, interest and claim of the said Hamilton and Robinson to and in

the premises, with the appurtenances. But this respondent denies that

by virtue of the said grant the said complainants became, or are, ten-

ants in common, in equal shares with the said grantors and their as-

signs, of the said water-right and privilege, and might then, or may

now, rightfully draw from the said common vessel for their use one

equal half part of said water, and conduct the same by proper and

convenient pipes through the premises of the said grantors and their

assigns, to be used by the complainants at their arsenal, situate in the

vicinity of the said spring, for the supplying of which with water the

said water-right is alleged to have been purchased by the complainants;

because he says that the said Hamilton and Robinson became seized

of the. right of diverting the said water from the said spring, and enter-

ing upon the enclosure within which the same was contained, by vir-

tue of a conveyance to them by one Samuel Ewalt and wife, dated on

the 21st day of November, A. D. 1836, of the right and privilege to

use, divert and carry away from the said spring, by which their wool-

len factory was then supplied, so much of the water of said spring as

should fill, under a head of four inches, with a constant stream, a pipe

or tube not exceeding one inch square, and to carry away the same by

FIL,

Irwin vs. The United States.

tubes or pipes of any convenient size, through the premises of the said

Samuel Ewalt in a direct line, or as nearly as practicable thereto; and

to enter upon the land through which.the said pipes might pass, for

the purpose of excavating the same, and of laying, examining, raising

and repairing said pipes, at any time or times, as will more fully ap-

pear by the said deed of the said Samuel Ewalt and wife to the said

Hamilton & Robinson, a true copy of which, marked “A,”’ is here-

with filed and made part of this answer; and that the said complain-

ants are only entitled by virtue of the above recited conveyance from

the said Hamiiton & Robinson, under which they claim, to so much

of the said water as will pass through a pipe or tube of equal diameter

with one that should convey the water from the said spring, upon the

same level therewith, to the factory of the said grantors, without any

limitation or restriction as to the rights of the said grantors to use any

portion of the said water for other purposes, and leaving the rights of

the complainants dependent upon the dimensions of the pipe by which

is actually conveyed the amount of water drawn by the grantors and

their assigns to the factory aforesaid.

And for further answer to the bill of the complainants, this defend-

ant answering saith: That although the said complainants were per-'

mitted by the said Hamilton & Robinson to lay down their pipes of a

dimension far exceeding those which had been, or have at any time

been used to convey the said water to the factory aforesaid, without

objection upon the part of said Hamilton & Robinson, this defendant

is advised and verily believes that the same was permitted because the

said Hamilton & Robinson were not then carrying on business of any

kind at the said factory, or using the said water, or any part thereof,

for the purposes of the same; and with the express understanding and

reservation that the license or permission thus temporarily given should

not be taken to operate in any way to the enlargement of the rights of

the complainant, or the prejudice of those of the said Hamilton & Ro-

binson or their assigns, and that the said defendant was not advised at

the time of his purchase of the dimensions of the pipes then used by

complainants, or that they were exceeding their rights under the con-

veyance aforesaid, and had no means of ascertaining the same; but

was, on the contrary, led to suppose, from the dimensions of the vent

or orifice through which the water was drawn by the complainants,

that the pipes or tubes which were then, and are still, entirely con-

cealed from view corresponded eritirely therewith.

And for further answer to the bill of the complainants, this defend-

ant answering saith: That the recital in the deed made by William

Black to himself, and referred to in the complainants’ bill, is not to be

taken either as an interpretation of the terms and meaning of the said

recited conveyance from the said Hamilton & Robinson to the com-

plainants, or as the assertion or admission of a right on the part of the

complainants to use one-half of the said water, or as operating or in-

tended to operate in any way as an enlargement of the rights of the

complainants, because he says that no portion of the said water was

[Rec. c, D. T., 1853.]—2 :

10 Irwin vs. The United States.

used by the said William Black for said factory; and the said convey-

ance, although mentioned and referred to as of a privilege for one-half

of the spring, is set forth, not by way of affirmance-or recognition of a-

right on part of the complainants, but merely as a part of the chain of

title; and with express reference to the deed itself and the record there-

of for the details, both of which manifestly show that the same was a

misdescription or a mistake of the scrivener in the recital. thereof, and

in no way affecting the conveyance to the defendant, which is the

whole interest of the said William Black’.

And ihe defendant respectfully submits, that although such an im-

pression may have existed in the mind of the said Black, neither he

nor the defendant, who is his assignee, is to be concluded or affected

by any mistake.in regard to his rights, in a conveyance to which the

complainants were neither parties nor privies.

And for further answer to the bill of the complainants, this defend-

ant answering saith: ‘That true it is that the said complainants, after

the said grant made. to them as aforesaid, did enter as alleged upon

the premises upon which the said spring is situated, and did build and

construct a common vessel or cistern to receive’ the water of said spring

for the common use, of the said complainants and the said Hamilton

and Robinson; and that the said cistern was then, and continued to be,

pierced with two circular holes of equal diameter, having their axes

horizontal or Jevel, and of equal depth below the surface of the water

in the said vessel or cistern, one of. the said holes being intended for

the supply of the arsenal of the complainants, and the other of the said

works or factory of the said Hamilton & Robinson; and that the said

complainants proceeded also to lay through the premises of the said

Hamilton and Robinson a pipe for the conveyance of the water drawn

from said vessel or cistern by one of said holes or orifices. He denies,

however, that the said cistern was then or continued to be pierced with

two tubes of equal diameter, or with any tubes whatever, as is alleged

in the complainants’ bill; or that the complainants proceeded to lay

through the premises aforesaid any pipes or tubes for the conveyance of

the water drawn froin said vessel or cistern by either of said holes or

orifices, of a dimension corresponding, as is insinuated though not ex-

pressed, with either of said holes, or of equal diameter with the tubes

or pipes which were used for supplying the works or factory of the said

Hamilton & Robinson; but on the contrary, he avers, and is ready to

prove as this court shall direct, that although the pipe or tube which

was then used, and has since continued to be used, for the purpose of ~

supplying the said works or factory of the said Hamilton and Robin-

son, has at no time exceeded the diameter of one inch, and has con-

formed precisely in its position and level to one of the holes of orifices

aforesaid, yet the said complainants, not regarding the just boundary of

their right, but presuming, as he believes, upon their sovereignty and

legal impunity, have laid down and used through the premises of the

said Hamilton and Robinson, now belonging to the defendant, a tube

of the diameter of about two and a half inches, with a capacity more

JHE.

Irwin vs. The United States.

than six times that of the tube used for the purpose of conveying the

water to the works or factory aforesaid, and not conforming in its level

or elevation with either of the orifices aforesaid, but affixed to the ex-

terior circumference or rim of the said cistern in such a manner as to

extend below the said orifice, and to increase the weight or head of

water to the extent of about seven-eighths of an inch over and above

that of the defendant.

And for further answer to the bill of the complainants, this defend-

ant answering saith, as before, that if the fact be—which he does not

admit, but insists on the proof thereof—that the said Hamilton and

Robinson were frequently present and observed the said arrangement

and means then adopted by complainants for a division of the said

water, and for the conveyance thereof to the arsenal of the complain-

ants, and that they made no objection thereto, and that the said Ham-

ilton and Robinson fully and entirely approved the same, asis alleged,

be true, he is advised that it is done for the reason that the said Ham-

ilton and Robiason were not then using or requiring any of the said

water for the purposes of their factory, with the understanding that the

enjoyment on the part of the complainants should be dependent upon

their pleasure, and without detriment to their rights whenever they might

think proper to resume them. And he again submits that the long

continuance of the said license, by the permission and forbearance of

the said Hamilton and Robinson, and their assigns, which is readily to

be accounted for by the fact that the said factory, with its appurte-

nances, has frequently changed hands, and the said. water has not, there-

fore, been required for its uses, is not to be interpreted, from the mere

fact of non-user, into the absolute surrender of an important right to

the complainants. tinge

And, for further answer to the bill of the complainants, the defend-

ant answering saith, protesting that the allegation of the complainants

that they have not heretofore, nor do they now, draw out or carry away,

or use mere than one equal half part of said water, is altogether im-

material, and he is not required to make answer thereto; altogether"de-

nies that the said complainants have in all things and respects kept or

do keep within the limits of the rights and privileges so granted to them

by the said Hamilton and Robinson, as aforesaid, but have exceeded

and disregarded the same by diverting and carrying away from the said

spring a much larger quantity of water than would passthrough a pipe

of equal diameter with that,which has at all times conveyed, and sull

continues to convey, the water from the said spring upon the same

level therewith to the factory ofthe said defendant. ?

And for further answer to the bill of the complainants, this defendant

answering saith, that true it is that lie has ever.claimed, since he be-

came seized of the interest of the said William Black in the premises,

under the conveyance recited in the complainants’ bill, and does now

claim and assert, that the complainants are and have been using a quan-

tity and portion of said water greater than that to which they have a

legal right, and have been and are using a pipe for the conveyance of

12 — 'Frwin vs. The ited States.

the water of said spring to their said arsenal, which is over six times the

capacity of that contracted for by said Hamilton & Robinson; but it-is

not true that he pretends that the complainants are restricted, by the

terms of the said grant from Hamilton & Robinson, to the use of a

pipe or tube for the conveyance of said water from said spring to said

arsenal which shall necessarily be of uniform diameter throughout its

whole length, or.to any other pipe or tube than one which shall be of

equal diameter with that which conveys the water to the factory of the

defendant.

And for further answer to the bill of the complainants, this defendant

answering saith, that although it be true, as alleged in the complain-

ants’ bill, that the distance of complainants’ arsenal from the spring

aforesaid is nearly four times as great as that of the defendant’s factory,

and works from the same point, and that, in consequence thereof, if

the water were conveyed from said spring te said arsenal by a pipe of

the proper size at its insertion in the said vessel or cistern, and pursuing

the same size or diameter thraughout its whole length from said spring

to said arsenal, the complainants would not thereby be able to receive

one-half of said water by reason of the greater resistance offered to the.

flow of the water in said pipe in consequence of its greater length,

then it is clear upon the showing of the complainants themselves that

the. grant. under which they claiin is not, in substance or effect, as it

clearly is not in terms, a grant of a privilege to divert and carry away

an equal moiety or half part of the said water, seeing that it is admitted

that a pipe or tube of equal diameter with that which is used to convey

the water to the factory of the defendant will not convey an equal por-

tion of the said water to the arsenal of the complainants.

And this defendant, protesting that the tube or pipe of the complain-

ants is on a lower level than that of the defendant, altogether denies

that after the said complainants and himself have drawn from the said

common vessel or cistern their respective shares and portions of said

water, by holes made or tubes inserted in said vessel, of equal size and

diameter and on the same level, that each of said parties may then

carry and convey away the water so drawn out by a pipe or pipes

of such size and diameter as each may think proper and see fit to adopt;

because he says that although the said defendant is himself in no way

restricted by the grant to the complainant in regard to the size or cali-

bre of the pipe which he may think proper to use for the purpose of

conveying away the water to his said factory, the share or portion of —

the said complainants is, on the other hand, made expressly dependent

upon and is only ascertainable by the dimensions of the pipe or tube

which he may think proper to use, and to which they are, by the terms

of the said grant, necessarily required to.conform, in order to the as-

certainment of their proper share or proportion of said water.

And the said respondent, admitting that he had notice from the deed

of said Hamilton and Robinson at the time he purchased the said

premises from the said William Black, of the extent of the rights and

privileges-granted to the said complainants, altogether denies that he

Irwin vs. The ‘United States. IK?

was otherwise personally advised of the extent of their claim, or that he

was well aware that said grant to the complainants gave them a right

to use one half part of the water of the said spring; but on the contrary

he avers and maintains that it confers no such right, irrespective of the

length or dimensions of their pipe, and although it may have been so

expressed in the deed of the said William Black, the said recital was

founded on a mere mistake, as shown by the deed itself, and nowise

effected the rights of the said Black, all of which became vested by the

said deed in this defendant.

And the defendant further says, that the pipes or tubes laid down by

the complainants through the land now owned by the defendant, (and

to which the rights claimed by him are appurtenant,) and used by

them for the purpose of conveying the water from the said spring to

their said arsenal, are of the dimension of two and three-quarter inches

from the hole or orifice in said vessel or cistern, (and seven-eighths of

an inch below the rim or circumference of said hole,) for an extent of

about eighteen inches, and from that point down of a uniform diameter

of two and a half inches; while the pipes used by the said defendants

heretofore and now, for the purpose of conveying water from said cis-

tern to-his said factory, have never exceeded a diameter of one inch,

and correspond precisely in elevation with the holes aforesaid , thereby

giving to the complainant the advantage as well of a larger head, as of

a capacity six-fold that of the defendant, and so far exceeding the just

rights of the complainants; and that feeling himself injured thereby, he

has endeavored for a period of three years and upwards to obtain from

the complainants a redress and removal of the injury, or such compen-

sation for iis continuance as he considered it to be worth; that he has

accordingly addressed himself from time to time to the proper agents of

the complainants, as well the officers in command at the said arsenal,

as the authorities at Washington city; and that after repeated applica-

tions he has been advised of the determination of the complainants to

persist in their wrongful acts, under the plea and pretence that they

were in no wise exceeding their rights, and were well authorized to

continue the use of the pipes heretofore and at present occupied by

them; that seeing he had no means of redress, or of testing the rights

of the parties, but the assertion of his common law right to cut off said

pipes and arrest the flow of the said water through his own land, and

in order to do as little injury as possible to the complainants, as well as

to determine any license which they might have claimed under past

indulgence, he addressed a note, as charged, to their agent, declaring

his determination to cut the same off unless they were changed and

reduced in such a manner and to such elevation and dimensions as

will make them conform to the just limits and boundaries of the rights

and priviléges conferred upon the complainants by the parties under

whom the said defendant derives title as aforesaid; all which he claims

and insists, and is ready to prove as this honorable court shall award,

that he has perfect right to do; and humbly prays to be hence dis-

14. Irwin vs. The United States.

missed, with his reasonable costs and charges in this behalf most

wrongfully sustained.

| JAMES IRWIN.

THOS. WILLIAMS,

Solicitor for defendant.

Unrrep States oF AMERICA, |

Western district of Pennsylvania, ss.

James Irwin, being duly sworn, doth depose and say, that the facts

set forth in the foregoing answer, as of his own knowledge, are true;

and the facts set forth therein on the information of others, he verily

believes to be true.

: JAMES IRWIN.

Sworn and subscribed before me, this 5th day of April, 1852.

ee H. SPROUL, Commissioner.

Replication to answer of defendants.

In the circuit court of the United States, for the western district of

Pennsylvania. Of term, A. D., 1852. . No.

Tue Untrep SraTes or AMERICA, comp’ts,

VS. } In chancery.

, James Irwin, defendant.

The replication of the United States of America, complainants, to

the answer of James Irwin, defendant.

These repliants, saving and reserving to themselves all and all man-

ner of advantages of exceptions to the manifold insufficiencies of the

said answer, for replication thereto say, that they will aver and prove

their- said bill to be true, certain, and sufficient as laid to be answered

unto, and that the said answer of the said defendant is untrue and in-

sufficient to be replied unto by these repliants, without this that any

other matter or thing in the said answer contained material or effectual.

in law to be replied unto, confessed and avoided, traversed or denied,

is true. All which matters and things these repliants are and will be

ready.to aver and prove as this honorable court shall direct, and hum-

bly pray as in and by their said bill they have already prayed.

J. B. SWEITZER,

. District attorney, &c.

J. J. KUHN,

Attorney of complainants.

And afterwards, to wit, November 19th, 1852, this cause came on to

be heard upon bill, answer, replication, exhibits, and testimony, and

was argued by counsel; and thereupon, upon consideration thereof, it

was ordered, adjudged and decreed as follows, viz: that the injunction

aor

law S557

Irwin vs. The United States. I344 oo

heretofore awarded be made perpetual, and that the defendant, James

Irwin, pay the costs, &c.

And afterwards, to wit, May 24th, 1853, the respondent, James Ir-

win, appeals from the decree of the court granting an injunction in the

above cause, and prays that the same may be allowed.

THOS. WILLIAMS,

Attorney for respondent.

Appeal allowed upon the usual terms of security, for costs and proof

as to value of property in dispute and matter in controversy.

R. ©. GRIER, Cire’t Judge.

May 24th, 1853. :

I, Henry Sproul, clerk of the circuit court of the United States, for

the western district of Pennsylvania, do hereby certify, that security for

costs has been regularly entered in the case of the United States vs.

James Irwin, No. 1, of May term, 1852; and I consider the security

entered sufficient for the amount.

H. SPROUL, Clerk.

Proof of value of matter in controversy.

In THE Circuit Court oF THE UNITED STATES,

For the western district of Pennsylvania.

No. 1, of May term, 1852.

Tse Unirep STaTes oF AMERICA

vs. ‘In equity.

JaMEs IrRwIn. .

And now, to wit, June 23d, 1853, before me, Henry Sproul, a com-

missioner duly appointed by the circuit court of the United States, for

the western district of Pennsylvania, under and by virtue of the act of

Congress to take affidavits and bail, &c., personally appeared George

Ledlie, a witness, of lawful age, who being by me first carefully ex-

amined and cautioned, and sworn to testify the truth, the whole truth,

and nothing but the truth, did testify and say as follows: I am ac-

quainted with the property in controversy between the parties, and am

advised as to. the matter in dispute in the above case, and believe the

matter in controversy would be worth over two thousand dollars; if it

' were mine and I were in the position of the defendant, [ would not

take that sum for it.

| G. LEDLIE.

H. SPROUL, UJ. S. Com’r.

James Irwin, the defendant, sworn. I consider the matter in con-

troversy between myself and the United States in the above case worth

the sum of five thousand dollars.

JAMES IRWIN.

H. SPROUL, J. S. Com’r.

16 Irwin vs. The United States.

Exrhibit ‘‘A,”’ referred to in the foregoing bill.

This indenture, made the twenty-sixth day of November, in the year

of our Lord one thousand eight hundred and thirty-six, between Wil-

liam F’. Hamilton and William V. Robinson and Mary Anne his wife,

of Peebles township, in the county of Allegheny and commonwealth

of Pennsylvania, of the one part, and the United States of America of

the second part, witnesseth: That the said William F’. Hamilton and

William V. Robinson and Mary Anne his wife, for and in considera-

tion of the sum of two thousand dollars, lawful money of the United

States of America, unto us well and truly paid by the said United States

of America, at or before the sealing and delivery of these presents, the

receipt whereof is hereby acknowledged, have granted, bargained, sold,

aliened, enfeoffed, released, conveyed and confirmed, and by these pre-

sents‘do grant, bargain, sell, alien, enfeoff, release, convey and con-

firm unto the said United States of America, its successors and assigns,

the right and privilege to use, divert, and carry away from the fountain

spring by which the woollen factory of the said Hamilton and Robin-

son, the parties of the first part, is now supplied, situate in Peebles

township, in the county of Allegheny, and commonwealth aforesaid,

so much water as will pass through a pipe or tube of. equal diameter

with one that shall convey. the water from the said spring upon the same

level therewith to the factory of the said grantors, and to proceed from

acommon cistern or head to be erected by the said United States, and

to convey and conduct the same, by tubes or pipes, through the pre-

mises of the said grantors, in a direct line, or as nearly as practicable

thereto, and the privilege of entering upon the premises of the said |

grantors for the purpose of laying, and when necessary altering, the

said pipes or repairing them; also the privilege of erecting and repair-

ing such cistern and reservoir, or other erection as may be deemed ne-

cessary for preserving the said water for the use aforesaid; and also all

other rights and privileges in common with the said grantors, their

heirs and assigns, which are secured to the said grantors by deed of

perpetual lease from Samuel Ewalt and wife, bearing date the twenty

day of March, in the year of our Lord one thousand eight hundred and

twenty-six, and recorded in the office for recording of deeds, &c., in

Allegheny county, in book L 2d, page 307, to George Heist, sen’r,

who by deed, bearing date the twenty-ninth day of September, in the

year of our Lord one thousand eight hundred and twenty-eight, re-

corded in book M 2d, page 217, with Cynthia his wife, conveyed one

moiety thereof to James Brown, and the other moiety being seized and

taken in execution was sold by the sheriff of Allegheny county, and

by deed bearing date the twenty-third day of April, in the year of our

Lord one thousand eight hundred and thirty-four, duly acknowledged

by the said sheriff, and entered according to the act of Assembly in the -

court of common pleas of said county, in docket No. 19, page 621,

conveyed to George Gossin; who, with said James Brown and their

wives, by deed dated January 9th, 1836, and Samuel Ewalt and wife,

*

344°

by deed dated 21st November, 1836, both recorded in said county, in

book sip. , conveyed the same (inter alia) to said Hamilton and

Robinson; together with all and singular the improvements, ways,

waters, water-courses, rights, liberties, privileges, hereditaments and

appurtenances whatsoever thereunto belonging or in any wise apper-

iaining, and the reversions and remainders, rents, issues and profits

thereof, and all the estate, right, title, interest, property, claim and de-

mand whatsoever of them the said William F'. Hamilton and William

V. Robinson and wife, in law, equity or otherwise howsoever, of, in.

and to the same and every part thereof; to have and to hold the said

above granted rights and privileges, with the hereditaments and pre-

mises hereby granted or mentioned and intended so to be, with the ap-

purtenances, unto the said United States of America, their successors and

assigns, to and for the only proper use and behoof of the said United

States, their successors and assigns, forever: And the said William F.

Hamilton and William V. Robinson, their heirs, executors and admin-

istrators, do by these presents covenant, grant and agree, to and with

the said United Siates of America, their successors and assigns, that

they the said William EF. Hamilton and William V. Robinson, their

heirs, all and singular the hereditaments and premises herein above de-

scribed and granted or mentioned and intended so to be, with the ap-

purtenances, unto the said United States of America, their and

assigns, against them the said William F’. Hamilton and William V.

Robinson and wife, heirs, and against all and every other person or

Irwin vs. The United States.

_ persons whomsover lawfully claiming or to claim the same or any part

thereof, shaH and will warrant and forever defend. In witness where-

of the said parties to these presents have hereunto interchangeably set

their hands and seals; dated the day and year first above written.

W. F. HAMILTON, [SEAL.]

W. V. ROBINSON, [SEAL. |

MARY ANNE ROBINSON, [sea t. ]

Sealed and delivered in the presence of us—

JouHn SARBER, )

Lewis LIVERMORE.

Received the day of the date of the above indenture, of the above

‘named United States of America, the sum of two thousand dollars, the

consideration of the above mentioned rights and privileges in full.

HAMILTON & ROBINSON.

The twenty-eighth day of November, anno Domini i836, before me,

a justice of the peace, in and for said county, personally came the

above named William F. Hamilton, William V. Robinson, and Mary

Anne, his wife, and acknowledged the above indenture to be their act

and deed, and desired the same might be recorded as such. She, the

said Mary Anne, being of lawful age, and the contents of the said

deed being fully made known to her, and by me examined separate

and apart from her said husband, declared that she did voluntarily and

[Rec. c, D. T., 1853.]—3

Hoi vs. The United States.

of her own free will and accord sign and seal , and as her act and deed

deliver the same, without any coercion or compulsion of her said

husband. In witness whereof I have hereunto set my hand and seal

the day and year above written.

JOHN SARBER. [seEat.]

ALLEGHENY COUNTY, SS. . .

I, Samuel Fahnestock, recorder of deeds, &c., in and for said

county, do hereby certify, that the foregoing is a

of Recorder's Office, tue copy of a deed remaining of record in my

[or Atlogheny county. office, recorded November 28th, A. D. 1836, in

deed book, vol. 52, page 480.

Given under my hand and seal of office, at Pittsburgh, this 14th day

of February, 1852. )

SAM. FAHNESTOCK, Recorder.

Exhibit “B,”’ referred to in the foregoing bill.

This indenture, made the thirteenth day of January, in the year of

our Lord one thousand eight hundred and forty-eight, between William

Black, of the city of Pittsburgh, county of Allegheny, Pennsylvania,

rty of the first part, and James Irwin, of the second part, witnesseth:

a

That the said party of the first part, for and in consideration of the sum _.

of two thousand dollars, lawful money of the United States of Ame-

rica, unto him well and truly paid by the said party of the second

part, at or before the sealing and delivery of these presents, the receipt

whereof is hereby acknowleged, hath granted, bargained, sold, aliened,

enfeoffed, released, conveyed, and confirmed, and by these presents do

grant, bargain, sell, alien, enfeoff, release, convey, and confirm unto

the said party. of the second part, his heirs and assigns, all that certain

piece of ground, with the buildings thereon erected, situate in the

borough of Lawrenceville, Allegheny county aforesaid, known as ‘‘the

Soft Spring Paper Mili property,’’ the said piece of ground being esti-

mated as containing four acres, more or less, and being specified and de-

scribed in the lease from Samuel Ewart to George Hirst, bearing date -

the 24th day of February, A. D. 1846, as a field containing four acres,

more or less, adjoining the land occupied by Robert Spence, in Pitt

township, with a still-house and mill, together with the use of the

water from the spring, from from the'‘fence down that encloses said .

field, &c. ‘The said lot or piece of ground being subject toan annual

ground rent of one hundred dollars, payable semi-annually on the first.

days of April and October in each year, to the said Samuel Ewalt, his

heirs and assigns forever; the terms, conditions, privileges, limitations,

and descriptions whereof will, on reference thereto, be found more fully

set forth in the following mentioned deeds and the records thereof in

Allegheny county aforesaid, namely :—lIst. Deed of perpetual lease from

Samuel Ewalt and wife to George Hirst, dated March 23d, A. D. 1826,

and recorded in book L 2d, page 307, &c. 2d. Deed from ‘George

Hirst and wife to James Brown, for one equal half part, dated Septem-

ber 29th, A. D. 1828, and recorded in deed book M 2d, page 217.

siieeae’ =

2. EP: Tyce € -

SNE API. FOS

Irwin vs. The United States. Ig

3d. Deed from William Lecky, esq., high sheriff, &c., for the remain-

ing half part, dated March 29th, A. D. 1834, and recorded in deed

book X 2d, page 340, &c., conveyed all the interest of the said George

Hirst therein to George Gossin. 4th. Deed from James Brown and

wife and George Gossin and wife to William F'. Hamilton and Wil-

liam V. Robinson, dated January 9th, 1836, and recorded in book C ©

3d, page 473, &c. Sth. Deed from Samuel Ewalt and wife to Wil-

liam F'. Hamilton and William V. Robinson, for privilege of spring,

&c., dated November 21st, A. D. 1836, and recorded in book C 3d,

page 471. 6th. Deed from William V. Robinson and wife and Wil-

iam F’. Hamilton to the United States of America, for privilege of one

half the spring, &c., dated November 26th, A. D. 1836, and re-

corded in book C 3d, page 480. 7th. Deed from William V. Robin-

son and wife and William EF’. Hamilton to James Caldwell, dated

June 13th, A. D. 1842, and recorded in book P 3d, page 451. 8th.

From KE. Trovillo, esq., high sheriff, &c., dated December 16th, A.

D. 1843, in book T' 3d, volume 68, page 105, conveying all the in-

terest of the said James Caldwell therein to William Black, party of

the first part to these presents. 9th. Agreement between Samuel

Ewalt, Francis Stein, and William Black, in relation to the road lead-

ing past said premises, dated September 13th, A. D. 1845, and re-

corded in book X 3d, page 370. ‘Together with all and singular the

buildings, improvements, waters, water-courses, rights, liberties, privi-

leges, hereditaments, and appurtenances thereunto belonging or in any

wise appertaining, and the reversions and remainders, rents, issues, and

profits thereof, and all the estate, right, title, interest, property, claim,

and demand whatsoever of the said party of the first part in law,

equity, or otherwise howsoever, of, in, and’ to the same and every part

thereof; to have and to hold the said piece or lot of ground and all and

singular the hereditaments and premises hereby granted or mentioned

and intended so to be, with the appurtenances, unto the said: party of

the second part. his heirs and assigns, to and for the only proper use

and behoof of the said party of the second part, his heirs and assigns

forever; and William Black, the said party of the first part, for himself,

his heirs, executors, administrators, doth, by these presents, covenant,

grant, and agree to and with the said party of the second part, his heirs

and assigns, that he the said party of the first part, his heirs, all and

singular the hereditaments and premises herein above described, and

granted or mentioned and intended so to be, with the appurtenances,

unto the said party of the second part, his heirs and assigns, against

his, the said party of the first part, his heirs, and against all and every

other person or persons whomsoever, lawfully claiming or to claim the

same or any part thereof, shall and will warrant and forever defend.

In witness whereof the said party of the first part hath to these presents

set his hand and seal. Dated the day and year first above written.

WILL. BLACK. [seEat.]

Sealed and delivered in the presence of us,

AND. McMastTers.

Ny eR, a ee. CORP see a Ni A&P er ae _ : - ~

ee | Irwin vs. The United States.

Received the day of the date of the above indenture, of the above

named James Irwin, the sum of two thousand dollars, lawful money

of the United States, being the consideration money above mentioned

in full.

WILL. BLACK

Witness—Anp. McMastTers.

City oF PITTsBURG, ss. __

On the thirteenth day of January, A. D. 1848, before me, one of

the aldermen, in and for said city of Pittsburgh, came the above

named William Black, and acknowledged the above indenture to be

his act and deed, and desired that the same might be recorded as such.

Witness my hand and seal the day and year aforesaid.

AND. McMASTERS,. [sEAt.]

Aiderman.

ALLEGHENY COUNTY, 8S.

I, Samuel Fahnestock, recorder of deeds, &c., in and for said

county, do hereby certify that the foregoing is a

true and correct copy of a deed remaining of re-

cord in my office, recorded January 14th, A. D.

1848, in deed book, vol. 80, page 210.

Given under my hand and seal of office, at Pittsburgh, this 14th

day of a 1852.

SAM. FAHNESTOCK,

Recorder.

Exhibit “C,’’ referred to in the foregoing bill.

Masor Bett, Allegheny Arsenal.

Sir: The United States Government have now jn use a pipe con-

veying the water from my spring to the Allegheny arsenal, which is

over four times the capacity of that contracted for. During three years

past I have sought redress by repeated applications to the War Depatt-

ment, and recently by appeal to the President of the United States,

without any satisfactory result. Desirous of having the question at

issue definitely settled, I hereby notify you, that unless some satisfac-

tory proposition be made by the Government within thirty days, I will

cut off the pipe referred to.

Respectfully, your ob’t servant,

Seal of Recorder’s Office,

ef Allegheny county.

JAMES IRWIN.

Lawrenceville, 16th January, 1852. | :

Exhibit ‘A,’ referred to in James Irwin’s answer.

This indenture, made the 21st day of November; A. D. 1836, be-

tween Samuel Ewalt, esq., of Pitt township, in the county of Alle-

gheny, and the Commonwealth of Pennsylvania, and Anna‘his wife,

of the one part, and William V. Robinson and William V. Hamilton,

of the city of Pittsburgh, of the other part, witnesseth: That the said

parties of the first part, for and in consideration of the sum of $300,

| iY

Irwin vs. The United States. 4 i

lawful money of the United States of America, unto him well and

truly paid by the said parties of the second part, at or before the seal-

ing and delivery of these presenis, the receipt whereof is hereby ac-

knowledged, hath granied, bargained, and sold, aliened, enfeoffed,

released, conveyed, and confirmed, and by these presents do grant,

bargain, and sell, alien, enfeoff, release, convey, and confirm unto the

said parties of the second pari, their heirs and assigns, all the right and

privilege td use, divert, and carry away from the fountain or spring by

which the paper-mill of Hamilton and Robinson, the parties of the

second part, is now supplied, situate in Pitt township aforesaid, so

much of the water of said spring or fountain as shall fill, under a head

of four inches; with a constant siream, a pipe or tube not exeeeding

one inch square, and to carry away the same by tubes or pipes of any

convenient size through the premises of the said grautor in any direct

line, or as nearly as practicable thereto, and to enicr upon the land

through which the said pipes may pass for the purpose of excavating

the same, and of laying, examining, raising, and repairing said pipes

at any time or times. And the said Samuel Ewalt, for himself, his

heirs, and executors, and administrators, doth covenant that the head

of said spring or fountain shall be preserved from | by

fowls, catile, or other creatures, or in any wise disturbed or impaired

in its purity; together with all and singular the improvements, ways,

waters, waier-courses, rights, liberties, privileges, hereditaments, and

appurtenances whatsoever thereunto belonging or in any wise apper-

taining, and the reversions and remainder, rents, issues, and profits

thereof, and all the estate, right, title, interest, property, claim, and

demand whatsoever of the said party of,the first part in law, equity,

or otherwise howsoever, of, in, and to the same and every part thereof;

- to have and to bold the said described privilege in the spring or foun-

tain aforesaid, and the hereditaments and premises hereby granted or

mentioned and intended so to be, with the appurtenances, unto the

said parties of the second part, their heirs and assigns, to and for the

only proper use and behoof of the said parties of the second part, their

heirs and assigns, forever. And the said Samuel Ewalt, party of the

first part, for himself, his heirs, and executors, and’ administrators,

doth, by these presents, covenant, grant, and agree to and with the

said parties of the second part, their heirs and assigns, that he, the said

party of the first part, and his heirs, all and singular the hereditaments

and premises herein above described and granted, or mentioned, and

intended so to be, with the appurtenances, unto the said parties of the

second part, their heirs and assigns, against them, the said parties of

the first part, and their heirs and assigns, and every person or persons

whatsoever, lawfully claiming or to claim the same, or any part there-

of, shall and will warrant and forever defend. |

In witness whereof the said parties of the first part have to these

presents set their hands and seals. Dated the day and year first above

written. SAM. EWALT, [sEat.]

ANNA EWALT, [sEat.]

22 | Irwin vs. The United States.

Sealed and delivered in presence of us—

Joun SARBER,

Joun Ewatt,

~Davip MEcarao.

Depositions on part of complainanis.

In the circuit court of the United States, for the western district of

Pennsylvania, in the third circuit.

“a 3. J Circuit Court of

- of Penn’a.

No. 1, of May term, 1852.

Unitep States oF AMERICA

vs.

James [RwIN.

The President of the United States, to Richard Biddle nee esq.,

of the city of Pittsburgh, in the county of Allegheny.

Know you that, in confidence of your prudence and integrity, we

have given. unto you, and by these presents do give unto you, full

power and authority, in pursuance of a rule lately made in the circuit

court of the United States, in and for the western district of Pennsyl-

-vania, in a certain action or bill in equity therein depending, wherein

the said United States of America are complainants, and James Irwin

respondent, to call before you, at a certain day and place by you for

that purpose appointed, all and every person or persons who may be

named to you by the said United States of America as witnesses in

said action, and then and there to examine them on their respective

oaths or affirmations, on certain interrogatories hereunto annexed

touching the premises, and to reduce their testimony to writing; and

when you shall have so done you are to send the same to the said

court, closed up under your seals, firmly and distinctly set, together with.

this writ.

Witness the Hon. Roger B. Taney, esquire, Chief Justice of the

Supreme Court of the United States, at Pittsburgh, this twenty-ninth

day of September, A. D. 1852, and of the independence of the United

States the seventy-seventh.

H. SPROUL, Clerk.

By virtue of the annexed commission, issued by the circuit court of

the United States, in and for the western district of Pennsylvania, in

the third circuit, in the case of the United States of America, complain-

ants, and James Irwin, respondent, and to me directed, I proceeded to

take the testimony hereto annexed, at my office, in the city of Pitts-

burgh, on Saturday the sixteenth, Saturday the twenty-third, and

Saturday, the thirtieth days of October, A. D. one thousand eight hun-

dred and fifty-two, in presence of J. Bowman Sweitzer, esq., (during

the two first Sa mentioned,) attorney of the U. S., W. D. of Pa.,

II

and James J. Kuhn, esq., counsel for the United States, James Irwin,

the respondent, and Alex. W. Foster, esq., his counsel.

R. BIDDLE ROBERTS,

Commissioner.

Irwin vs. The United States.

Thomas J. Rodman, a witness produced and sworn on part of com-

plainants, says: I am acquainted with the arrangement for conducting

water from a spring to supply the Allegheny arsenal with water, and

have been since the fall of 1841; they are the same now all outside the

arsenal wall as they were then, except the addition of pipes to secure

the air-valves. I have heard thestatement of Mr. Giles S. Bates with

regard to the size of pipes, bore, &c., and it is tothe best of my knowl-

edge correct; if the water from the spring were delivered by a one inch

pipe it would be nine and a half times less than at present, (by the for-

mula of Bouchelar,) or the present quantity isnine and a half times

greater than if delivered by a one inch pipe; a one inch pipe would

be more liable to obstruction by the deposition of sediment than the

present pipe. If a one-inch copper pipe, connecting the cistern with

the iron pipe, were substituted for the one now in use, the quantity of

water discharged would not be materially effected, and would, owing

~ to what is called the contraction of the fluid vein, be increased by the

substitution of the one inch pipe two inches long in place of the one

now in use. The distance from the spring to Mr. Irwin’s works does

not exceed one hundred yards. My opinionis that the quantity of water

discharged by Mr. Irwin’s pipe would be equal to the amount discharged

by the United States pipe; the quantity of water delivered by two pipes

of equal diameter are inversely as the square roots of their lengths, and

directly as the square root of the differenee of level of their points of

discharge, both beginning on the same level. I am not sufficiently

' well acquainted with the relative distances to state positively what

would be the relative quantities discharged by the two pipes now in

use. |

Cross examined.

The pipe from the reservoir to the lower grounds of the arsenal is a

three inch pipe; that is my impression, I am not positive. The pipe that

leads from the reservior to the arsenal is connected with the one which

leads the water from the spring to the reservoir; the principal part of

the water used in the arsenal grounds is drawn on the lower level; the

pipes are so arranged that the water may continue directly from the

spring down or into the reservoir, and when the spring supplies more

than is used it is stored away in the reservoir; (ifair be excluded from

where water enters a one-inch pipe, the diminution in quantity delivered

_ caused by.the pressure of water at the point of delivery would be the

same as would be caused by elevating the point of discharge to the

level of the surface of the water as the point of discharge.) ‘The above

is in answer to the following question: whether a pipe one inch in

diameter would not discharge more water—the point of discharge being

24 | Irwin vs. The United States.

accessible to air—than a pipe of the same diameter and same level dis-

charging under a pressure of six feet water?

If air were admitted at the receiving end of the pipes, what then

would be the proportion of their discharge?

I could not say whai the proportion w ould bé, but would say that |

the one discharging in air would probably deliver a greater quantity of

waier, owing io the water above the level of discharge preventing the

escape of the air.

My impression is that the point of delivery at the reservoir is some-

thing lower than Mr. frwin’s point of delivery; the water used on the

lower square is from fifiy to sixty feet lower than the reservoir. I can-

not say whether the Uniied States pipe, when cleared of air, would

take away all ibe water furnished by the spring or not; I know that

both pipes will. ‘I'he flow of waier through the United States pipe is much

greater at sometimes than at others; this does not occur daily, but does

occur frequenily, the iniervals not being equal. The centre of the

pipes conducting to Mr. lrwin’s factory and to the reservoir are on the

same level, and the holes leading into the pipes are on the same level

and of the same size.

Direct.—Does the fact that the arsenal is fifty feet below the reservoir,

according to the manner in which the pipes are connected, increase or ©

diminish in any way the quantity of water delivered by the pipes, or is

the quantity of water:the same as it would be if it were all discharged

in the reservoir? :

Ans. The quantity by this arrangement is not affected, and is the

same as if delivered in the reservoir.

What is the cause of the United States pipe varying in the discharge

of waier? |

Ans. The cause is, that the level ofthe waterat the receiving end

of the pipes falls so as to admita portion of air being drawn in along

with the water, and this air collects in the highest portions of the’ pipe

and breaks the draught or flow of, water which would be due to the

difference of level between the receiving and discharging ends of the

pipe. Valves are placed on the pipe at the summit of each eminence

of ground, over which the pipe passes in its course from the spring to

the reservoir, to discharge the same, the discharge being effected by

closing the end of the pipe at the reservoir by means of a stop-cock,

and opening the air-valves, and allowing the water to flow in until it is

completely filled, the valves being closed as. the water reaches them

successively, beginning with the lowest, then by opening a stop-cock at

the reservoir the supply furnished is that due to the difference of the

level of the two extremities of the pipe.

T. J. RODMAN.

William V. Robinson, a witness produced, sworn and examined on .

part of the respondent, says:

William FE. Hamilton and myself were the owners of the water ©

privilege of this spring at the time the United States purchased. I trans-

‘

se ed

— eo

ror? ee iene ole” ae

sae ¢. ei ie gitar, <:

= —

ING.

Irwin vs. The United States. 5

acted all the business with Colonel Baker; he wanted fo have an inch

tap with a head of ten inches or a foot; I tried this and found it would

take all the water in the spring. I made no agreement with Colonel

Baker, except the one whichis on record. ‘They have no right to any-

thing but what Mr. Irwin has; I sold to the United States the one-half

of the spring which might go through any sized pipe; that was the

agreement in the deed; the one-half of the spring was reserved for the

property; the matter I believe to be a question in natural philosophy;

Mr. Irwin is entitled to one-half of the water; the supply for the United

States was to be conveyed through the same sized pipe as that to the

factory. 3

Cross examined.— Was not the intention in the deed that each party

should have half the water?

Answer. ‘The deed is on record and shows for itself.

W. V. ROBINSON.

Giles S. Bates being produced on part of complainant, and sworn,

says: 1 was employed at the United States arsenal at Lawrenceville,

Allegheny county, Pennyslvania, for about sixteen years; I ceased to

be employed there about the last of June, 1852. I know the spring

from which the arsenal is supplied with water, on the land of Samuel

H. Kellar; it is the same spring from which Mr. James Irwin’s factory

is supplied; the distance from the spring to the reservoir of the arsenal

is five hundred and forty-seven yards or thereabouts; the ground is

somewhat broken or uneven. ‘There are three ravines; the first ravine

from summit to summit is about two hundred feet wide, and from

twenty-five to thirty feet deep; the second is about one hundred feet

wide and about fifteen feet deep; the third is about fifty feet wide and

from eight to ten feet deep, that is the width and depth at the point

where the United States pipes pass; the pipes follow the inequalities of

the ground; they are about three feet below the surface of the ground,

from that to four feet; the pipe from the spring to the reservoir is two-

and-a-half bore pipe; the copper pipe connecting the iron pipe with the

cistern is two inches and five-eighths, and about one foot long; the hole

through the body of the cistern is one inch in diameter; the copper pipe

is bolted to the cistern by a flange; the hole through which the water

passes to supply Mr. Irwin’s works is the same size as the one through

which it passes to supply the arsenal, and the two hoiesare on the same

level. 1 was in the employment of the United States when the pipes

referred to for the supply of the arsenal were laid; I was present most

of the time while they were laying them; they are the same pipes which

are now in use; they have been in use since 1837. I saw Mr. William

V. Robinson present on two occasions when the pipes were being laid;

he was present with Colonel Baker; I heard him express no dissatisfac-

tion; they appeared to"have a perfect understanding in the arrange-

ment, and that arrangement is the one now in use. I was and am

still under the impression that the copper pipe was an inch one origi-

nally, but I am not positive; with that exception the arrangement is

[Rec. c, D. T., 1853.]—4

26 : Irwin vs. The United States.

now as it was then. I do not know of any change it in the size of

the pipe since; some pipes were put down to secure the air-valve,

but no alteration in the size of the pipe; any deposites in the pipes col-

lect in the ravines, and when the air gets into the pipes from the

cistern it has to be drawn out at these air-valves in order to fill the

pipes; the amount of water discharged at the reservoir would fill a three-

quarter inch pipe. I have had partial charge for some time of the work;

have been frequently at the spring; assisted to clear the pipes of air and

to fill them. ‘T'he ground where the United States pipe crosses from the

ground of Mr. Irwin is about fifteen feet higher than where the pipe

discharges its contents at Mr. Irwin’ s factory ; the ground through which

the pipe passes from the spring to Mr. Irwin’s factory is a regular slope.

The distance from the spring to where the United states pipe passes

from Mr. Irwin’s*Jand is greater than from the spring to Mr. Irwin’s

factory; it is hardly one-third of the distance to the reservoir; the body

or rim of the cistern through which the inch hole passes is about seven-

eighths thick.

Question. When the United States arsenal and Mr. Irwin’s factory

are both in operation, what is the relative amount of water drawn off

by the pipes of each?

I believe the amount to be about equal.

Cross examined.—I do not know that the ravines spoken of would

make any difference in the flow of the water, provided there was a suf-

ficient head at the spring to exclude the air from the pipe; if air was

admitted into the pipe, I am of opinion that the water would still con-

tinue to flow, but to a limited extent.

We can see the water flowing from the United States pipe into the

reservoir. When the reservoir was first established, the pipe discharged

about four feet from the bottom of the’reservoir, and I have frequently

seen the water discharging into the reservoir from the pipe. That mode

of discharging was discontinued between seven and eight years ago.

It discharged through a brass cock, two-inch bore.. ‘T'he United States

used the water for ornamental purposes on the parade at intervals for a

number of years, when the supply of water would permit. ‘The cen-

tres of the holes in the cistern from which the water is taken to the re-

servoir and to Mr. Jrwin’s factory are on the same level, and the cen-

tres of the pipes are on the same level, but the difference in the diam-

eter of the pipes throws the United States pipe about three fourths of

an inch below Mr. Irwin’s pipe. The diameter of Mr. Irwin’s pipe

is an inch bore, I should judge.

Direct.—I think the deposite of sediment in the pipe in the ravines

would obstruct the water, unless there was a sufficient draft in the pipe

to draw it out. I know that sediment has collected in the pipe in the

bottom of the large ravine. ‘The sediment was a kind of sand, oxide

of iron, and of a muddy nature.

Cross ex.—I only know of sediment having collected in the pipe

once so as to require opening during the time I wasat the arsenal. ‘The

air-valves spoken of were constructed to insure a continuous flow of

_

I32/—

Irwin vs. The United States.

T water, and in order to draw off the foul air and allow the water to flow;

and they answered the purpose of their construction. ‘The discharge

of the water into the reservoir from the two-inch cock is from a half to

three-quarters of an inch. If the pipe used by the United States had

been of lead instead of iron, the obstruction from sediment would

probably not have been as great. ‘There is quite a sediment comes

from the water of this spring. We used it in our boilers at the public

works, and found it quite objectionable from the accumulation of sedi-

| ment—of fine sand. We have been compelled to clean out the reser-

‘ voir from sediment, but I cannot say whether it has been necessary to

clean out the cistern at the spring or not.

Direct.—The flow of water mentioned as coming from the brass

cock at the reservoir was the entire supply received from the spring.

| | | G. S. BATES.

William Jancey, a witness produced, sworn and examined on part

of the complainants, says: [ have been employed at the Allegheny

arsenal for fifteen years. I engaged there first asa carpenter, and since

1844 I have had charge of the water-works, with the exception of seven

months, when I was absent. I refer to the water-works conducting

water from the same spring which supplies Mr. Irwin’s factory. ‘There

is an iron kettle placed in the spring, pierced with two one-inch holgs,

one to supply the United States arsenal, the other to supply Mr. Irwin’s

factory. ‘These holes, as near as I can tell, are on the same level.

The size of the United States pipe, which is copper, is two inches and

seven-eighths in diameter on the outside, which would give two inches

and five-eighths in the clear; it is thirteen inches long from the Kettle

to the iron pipé. The iron pipe is two inches and a half in the clear.

Mr. Irwin’s pipe is one inch bore; the United States pipe being larger

than the bore, it projects about three-quarters of an inch all round the

hole. he United States pipe crosses three ravines between the spring

and the reservoir. I have heard the description given by Mr. G. S.

Bates, and believe it to be correct.. I saw a portion of the pipes laid,

and I inserted a stop-cock in the pipe to let out the sediment at the bot-

tom of the first ravine. At times the United States: pipe draws more

water than Mr. Irwin’s, and at times it loses, so that the quantity

3 drawn by both pipes is near about equal. The discharge from the

United States pipe is now under water, at the bottom of the reservoir.

The present arrangement for drawing water from the spring to the ar-

< senal has been in use about fifteen years. Mr. Irwin’s pipe has a reg-

ular gradual descent from the spring to his factory. 1 do not know the

distance from the spring to Mr. Irwin’s factory. There is a stop-cock

in the pipe at the bottom of the reservoir, which is left open to dis-

charge the water into the reservoir. ,

‘ _ Cross examined.—I know of the water from the pipe directed to-

wards Mr. Irwin’s factory having been discharged on the surface of the

ground; it was a one-inch bore iron pipe. At that time the iron pipe

was corroded, and Mr. Irwin renewed it by placing a lead pipe, one

_ 7

,

|

|

|

|

west

98 Irwin vs. The United States.

inch bore. I cannot say how long this flow continued. ‘The iron

pipe at the time spoken of was much corroded and obstructed. Ham-

ilton & Robinson’s factory never went into operation after the purchase

of the water by the United States. Mr. Cadwell had it in operation

making buff leather for the arsenal, but how long I do not know.

The water flowing from the iron pipe spoken of as discharging on

the surface could have been passed by a pipe three-eighths bore. In

case the water should rise about the kettle spoken of, the waste water

is carried off through a two-inch copper pipe. ‘The water discharged '

by the iron pipe on the surface of the ground was the only discharge

from the iron kettle which Mr. Irwin’s pipe had. 'The water from the

spring is admitted into the kettle through ten or twelve one-inch holes -

pierced in the sides of the kettle, and as the water increases in the spring

there are several small holes above, pierced in the kettle, to admit the

same. I have seen the water running into these small holes. ‘The

only channel for the water from the kettle at the time of the discharge

through the obstructed iron pipe of Mr. Irwin was through the United

States pipe, and the United States had a full supply of water. The

pipe used by the United States for ornamental purposes in the parade

ground is a lead pipe, three-quarters inch bore. ‘The United States, at

the time of Mr. Irwin’s purchase, held possession of: the spring-house.

Itghad only one key, and that the United States kept. After Mr. Irwin

got possession of the property, and while Major Harding was com-

mandant, he directed me to change the lock on the spring-house, be-

cause Mr. Irwin had obtained a key to the one then.in use. Captain

Harding directed me to divide the water in the kettle by putting in

two five-eighths stop-cocks at the two inch holes, so as to cause a head

of water to remain in the kettle. We removed the stop-cock from the

United States pipe and inserted a one-inch bore copper pipe, with a

float attached, for the purpose of dividing the water by recommenda-

tion of Lt. Rodman. The supply of water received through the float

depended upon the height of the water in the kettle. ‘There was no

alteration in the flow of water passing through the stop-cock attached

to Mr. Irwin’s pipe. :

The number of times at which we let the air out of the United

States pipes depend upon the depth of the water in the reservoir. I

have only done it three times in the last year. ‘The cock placed at

Mr. Irwin’s pipe would convey about three-eighths bore.

Direct.—Mr. Irwin never applied to the United States for permis-

sion to enter the spring-house, and never was refused to my knowl-

edge. ‘The key belonging to the United States for opening the

spring-house was lost, arid Mr. Irwin informed me that he had bor-

rowed a key from Sergeant Coalson to get one made by for his own

use. Mr. Irwin told me that a mannamed Baxter came to the spring-

house and got water from the kettle. I do not know that the com-

manding officer at the arsenal made any objection to Mr. [rwin’s hav-

ingakey. Shortly after Mr. Irwin got a key I had recourse to the

spring-house; 1 found a cast-iron lid on the kettle fastened down with

IFS

a padlock. 1 then went down to the arsenal and reported the fact to

Irwin vs. The United States.

_ the commanding officer, who requested me to call on Mr. Irwin and

inquire the cause of the kettle being locked. I saw Mr. Irwin, and he

stated that his object in locking the kettle was to prevent Baxter from

taking any water out of the kettle or interfering with the pipes. I re-

ported this to the commanding officer, and he requested me to call on

Mr. Irwin for the key ofthe lid of the kettle, so that we could have one

made by it for the use of the United States. Mr. Irwin gave me the

key of the kettle, but requested me to return it at a certaintime. I

took the key to the commanding officer, who considered it useless to

get a key made, and thought Mr. Irwin could keep it, and I returned

it to Mr. Irwin, in whose possession it still is, though the kettle has

been unlocked for some time. ‘The object of changing the lock on the

spring-house was that we had a deficiency of water in the reservoir. I

went up to the spring-house, and on examination of the kettle [ found

the one inch hole, conveying the water to the arsenal, plugged up

with a fine plug. I immediately returned to the arsenal and reported

the same to Captain Harding, who commanded at that time; he directed

me to take a padlock with me, to take the plug out of the hole, and call

on Mr. Irwin to ascertain the cause of the hole being plugged up. I

called at Mr. Irwin’s house; he was not at home. I went to his fac-

tory and inquired of Mr. Irwin’s men, and inquired which of them

had plugged up the hole.

Mr. Kuhn, for the United States, asks, what did the men say ?

Question objected to by Mr. Foster, for defendant.

Answer. A man named John Grant said he had done it; he was in

Mr. Irwin’s employ.

Mr. Irwin was not at home, and I believe was in Kentucky; Captain

Harding directed me to put on a padlock, to prevent John Grant and

Baxter from interfering with the spring.

The padlock remained on until Mr. Irwin returned, a week or two.

At the request of Mr. Irwin to have access to the spring, the old lock

was replaced. ‘The stop-cocks and float (heretofore mentioned) were

in use about nine months; they were removed about two years ago.

Mr. Irwin was present when these stop-cocks and float'were put in; he

made no objeciion, but assisted us. ‘The object of putting in the stop-

cocks was to equalize the division of the water in the spring, and to

prevent the air from getting into the arsenal pipes; it equalized the

water; I do not think one party got more than the other. Mr. Irwin

not being satisfied with the arrangement they were removed; he would

not have his pipes obstructed. .

The witness desires to correct a mistake in his cross examination, and

says:

I find on examination, that there are eleven holes-in the kettle dis-

charging the water from the spring. I stated before that they were one

inch holes; on examination I find five three-quarter inch holes and six

half-inch holes; these are the lower row of holes.

Cross examined.—T he padlock remained on the spring-house during

30 Irwin vs. The United States.

Mr. Irwin’s absence, and for about two weeks after his return. I re-

member going to the spring-house one Sunday morning with Lieuten-

ant Kingsbury, and seeing Mr. Irwin who had taken out the stop-cock

in his pipe. Lieutenant Kingsbury asked Mr. Irwin to equalize the

water; Mr. Irwin said he did not. want his pipe obstructed at all. Mr.

Irwin got possession of the key of the spring-house through Sergeant

Coalson or William Baxter. 3

WM. JANCEY.

I certify that the foregoing testimony was reduced to writing by me,

in presence of the persons named in the caption and of the witness,

read to each witness after it was so reduced to writing, and signed by

said witness in my presence.

R. BIDDLE ROBERTS, ©

Commissioner.

Commissioner fees $15. :

UnitTEp STATES OF AMERICA,

Western district of Pennsylvania, ss.

I, Henry Sproul, clerk of the circuit court of the United States for

the western district of Pennsylvania, in the third circuit, do hereby cer-

tify that the foregoing is a true exemplification of the record in the

case of the United States vs. James Irwin, No. 1 of May term, 1852,

in equity, together with true copies of the exhibits, testimony, &c., in

file in this office. | .

In testimony whereof I have hereunto set my hand and affixed the seal

of the said court at Pittsburgh, this . day June, one thou-

{sEAL.] sand eight hundred and fifty-three, and of the independence

of the United States the seventy-seventh. ,

H. SPROUL, Clerk.