714 JOURNAI, OF FORESTRY 



On March 27, 1908, the Senate requested an opinion thus : 



"In order to promote the common welfare of the people of Maine 

 by preventing or diminishing injurious droughts and freshets, and by- 

 protecting, preserving, and maintaining the natural water supply of 

 the springs, streams, ponds, and lakes and of the land, and by pre- 

 venting or diminishing injurious erosion of the land and the filling up 

 of the rivers, ponds, and lakes, and as an efficient means necessary to 

 this end, has the Legislature power under the Constitution : 



(1) By public general law to regulate or restrict the cutting or de- 

 struction of trees growing on wild or uncultivated land by the owner 

 thereof without compensation therefor to such owner? 



(2) To prohibit, restrict or regulate the wanton, wasteful, or un- 

 necessary cutting or destruction of small trees growing on any wild or 

 uncultivated land by the owner thereof, without compensation therefor 

 to such owner, in case such small trees are of equal or greater actual 

 value standing and remaining for their future growth than for immedi- 

 ate cutting, and such trees are not intended or sought to be cut for the 

 purpose of clearing and improving such land for use or occupation in 

 agriculture, mining, quarrying, manufacturing, or business or for 

 pleasure purposes or for a building site ; or 



(3) In such manner to regulate or restrict the cutting or destruc- 

 tion of trees growing on wild or uncultivated lands by the owners 

 thereof as to preserve or enhance the value of such lands and trees 

 thereon and protect and promote the interests of such owners and the 

 common welfare of the people ; 



(4) Is such regulation of the control, management or use of pri- 

 vate property a taking thereof for public uses for which compensation 

 must be made?" 



Six of the eight judges of that court joined in sustaining such power 

 in an opinion, the vital part of which is : 



"Regarding the question submitted in the light of the doctrine above 

 stated (being that of Maine and Massachusetts at least), we do not 

 think the proposed legislation would operate to 'take' private property 

 within the inhibition of the Constitution. While it might restrict the 

 owner of wild and uncultivated lands in his use of them, might delay 

 his taking some of the product, might defer his anticipated profits, and 

 even thereby might cause him some loss of profit, it would nevertheless 

 leave him his lands, their product, and increase untouched, and with- 

 out diminution of title, estate, or quantity. He would still have large 

 measure of control and large opportunity to realize values. He might 

 sufifer delay, but not deprivation. While the use might be restricted, it 

 would not be appropriated or 'taken.' " 



"There are two reasons of great weight for applying this strict con- 

 struction of the constitutional provision to property in land: (1) Such 

 property is not the result of productive labor, but is derived solely 



