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AMERICAN FORESTRY 



remain unimpaired by its citizens, is 

 not dependent upon any nice estimate 

 of the extent of present use or specu- 

 lation as to future needs." 



Those who would support this idea 

 that the state may regulate timber cut- 

 ting find in these words authority for 

 their position. "Protect the forests" 

 * ^ * "irrespective of the assent or 

 dissent of the private owners." "The 

 public interest is omnipresent." "The 

 constitutional power of a state to in- 

 sist that its natural advantages shall 

 remain unimpaired" — these expressions 

 are striking. They are fundamental, 

 and seem a ready answer to ancient no- 

 tions concerning the rights of private 

 property. 



No one would undertake to question 

 the importance of these utterances by 

 our highest court. They demonstrate 

 the patriotic and progressive spirit of 

 that great tribunal, and bear splendid 

 testimony of the protection which it af- 

 fords to public rights against private 

 and corporate aggression. Beyond that, 

 they give promise of future safeguards 

 to the paramount interests of society in 

 matters affecting the public welfare. 



Granting all this, it is the lawyer's 

 duty to inquire soberly into the true 

 effect of a decision, and to interpret its 

 language in the light of earlier cases. 



The true effect of this decision, which 

 has been so widely quoted, is merely 

 to recognize the state's right to limit 

 the use of public waters, which it holds 

 in trust for its people. "What it has it 

 may keep and give no one a reason for 

 its will." The rights which are lim- 

 ited are the relative rights to devote the 

 waters to private uses. Such rights, 

 though ordinarily appurtenant to the 

 adjacent soil, must yield to the needs 

 of that public for which the waters are 

 primarily held in trust. The question 

 of state interference with property ac- 

 tually owned by the individual is not 

 raised or considered. 



It is declared that the state "has a 

 standing in court to protect * * * the 

 forests, irrespective of the * =i= * dis- 

 sent of private owners." This might 

 be taken to mean that a state may in- 



terfere to prevent the destruction of 

 forests by the owner ; but a reference 

 to the cases shows that it actually means 

 nothing of the sort. The two well- 

 known cases that are cited make it clear 

 that the court used these words in their 

 exact sense. 



The case of Georgia vs. Tennessee 

 Copper Company, 206 U. S., 230, one 

 of the cases cited by Mr. Justice 

 Holmes, arose in this way : The at- 

 torney general of the state of Georgia 

 brought proceedings in the United 

 States court in the state of Tennessee 

 to secure injunction against the Ten- 

 nessee Copper Company, which was so 

 operating its works as to cause noxious 

 gases to flow from its stacks into the 

 state of Georgia and there injure the 

 timber and other crops on the ground. 

 The question decided in the United 

 States Supreme Court was that the state 

 of Georgia, as quoted by Justice Holmes, 

 had a standing in court to have an in- 

 junction issued against the corporation 

 in the other state that was so conducting 

 its works as to cause an unjustifiable 

 and unreasonable destruction in the 

 state of Georgia. I want to quote a 

 word from that decision to show the 

 origin of this suggestion, "irrespective 

 of the assent or dissent of the owners 

 of the property most immediately con- 

 cerned." The court says, again by Jus- 

 tice Holmes : 



"It is a fair and reasonable demand 

 on the part of a sovereign that the air 

 over its territory should not be polluted 

 on a great scale by sulphurous-acid gas ; 

 that the forests on its mountains, be 

 they better or worse and whatever do- 

 mestic destruction they have suffered, 

 should not be destroyed or threatened 

 by the act of persons beyond its con- 

 trol ; that the crops and orchards on its 

 hills should not be endangered from the 

 same source. * * * 



"We are satisfied, by a preponder- 

 ance of evidence, that the sulphurous 

 fumes cause and threaten damage on 

 so considerable a scale to the forests 

 and vegetable life, if not to the health, 

 within the plaintiff state as to make out 

 a case within the requirements of Mis- 



