16 



Forests and therefore the Government had no remedy for trespass by drifting 

 stock unless the Forest was fenced ; and that the grazing regulations are invalid. 

 Judge Lewis decided the issues of law against the trespasser without handing 

 down any written opinion. Although the purpose of the Service in making 

 the agreement of last June was to get a decision of the legal question upon an 

 agreed statement of facts, Mr. Light's attorneys, after their demurrer was 

 overruled, filed an answer denying the facts alleged by the Government. The 

 issues of fact will therefore have to be tried in Judge Lewis's court. Nearly 

 all other grazing trespass cases in Colorado have been settled. 



Right to Restrict Exploitation of Natural Resources 



The right of the public to restrict landowners in the exploitation of the 

 natural resources of their ]ands has been recently affirmed by tw*o important 

 judicial decisions. 



On March 10, 1908, the judges of the supreme judicial court of Maine, in 

 response to questions from the State senate as to the constitutionality of pro- 

 posed legislation to restrict timber cutting on private lands, gave their opinion, 

 as required by the State constitution, that it is within the power of the legis- 

 lature to regulate or restrict the cutting or destruction of trees on wild or un- 

 cultivated land by the owner thereof in order to prevent or diminish injurious 

 droughts, freshets, erosion, and the silting up of rivers, ponds, and lakes, and 

 to protect, preserve, and maintain the natural water supply. 



The judges were further of the opinion that such restriction and regulation 

 is not a taking of private property for public use, and therefore that it would 

 not be necessary for the public to pay any compensation to the landowners. 

 After citing many decisions by the courts of Massachusetts and Maine concern- 

 ing the right of the public to restrict the use of private property, the judges say : 



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

 struction of the constitutional provision to property in land : First, 

 such property is not the result of productive labor, br.t is derived solely 

 from the State itself, the original owner; second, the amount of land 

 being incapable of increase, if the owners of large tracts can waste them 

 at will without State restriction, the State and its people may be help- 

 lessly impoverished and one great purpose of Government defeated. 

 . 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 delay 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 without diminution of 

 title, estate, or quantity. He would still have large measure of control 

 and large opportunity to realize values. He might suffer delay but not 

 deprivation. While the use might be restricted, it would not be appro- 

 priated or " taken.'' 



The foregoing considerations lead us to the opinion at present that the 

 proposed legislation for the purposes and with the limitations named in 

 the senate order would be within the legislative power, and would not 

 operate as a taking of private property for which compensation must 

 be made. 



This opinion is signed by six of the seven judges composing the State supreme 

 oourt. Justice Savage declined to give an opinion, because he considered that 

 the constitutional provisions of the State constitution requiring such opinions 

 on " solemn occasions " was inapplicable in this instance, since the solemnity 

 ceased to exist nine days before the request reached him. 



The Supreme Court of the United States on April 6, 1908, affirmed, in the 

 case of the Hudson County Water Co. v. McCarter, the decision of the Court 

 of Errors and Appeals of New Jersey, holding that a State statute is constitu- 

 tional and valid which prohibits " any person or corporation to transport or 

 carry, through pipes, conduits, ditches, or canals, the waters of any fresh-water 

 lake, pond, brook, creek, river, or stream of this State into any other State, for 

 use therein." The Supreme Court says : 



