SHALL STATES REGULATE THE MANAGEMENT OF 



PRIVATE FORESTS? 



By HERMAN H. CHAPMAN 



Assistant Professor of Forestry, Yale Forest School. 



Vf^TTH the rising tide of popular interest in forestry has come a strong 

 Ml demand for the regulation of private forests by state governments. In 

 ^^^^ more than one state laws have been proposed aiming at the control or 

 limitation of timber cutting by land owners, by obliging them to leave a 

 certain portion of the timber standing, but so far, no state has actually 

 passed any such legislation. The utmost accomplished has been to compel 

 OAvners to' reduce the fire risk resulting from lumbering, by making proper 

 dis[)Osition of the tops and brush. 



Has the state a right to prescribe conditions affecting the handling of pri- 

 vate property, if such action tends to diminish the profits and increase the 

 expenses of the owners? It has this right, provided it can be shown that such 

 regulation is necessary to prevent definite damage to the property and wel- 

 fare of others. But this damage must be of a character and severity that 

 justifies the state in taking such action. This principle underlies all forms of 

 state regulation, as factory laws, prevention of stream pollution, or any law, 

 the effect of which is to force private owners to do things at their own ex- 

 l>ense, in order that the public welfare may be better safeguarded, and to do 

 them without compensation from the state. 



Although no laws have been passed regulating cutting of timber, it is well 

 known that the supreme court of Maine, in March, 1908, rendered, at the re- 

 quest of the Maine legislature, an advisory opinion upon the constitutionality 

 of laws designed to "restrict the cutting or destruction of small trees growing 

 on wild or uncultivated lands, by the owner thereof, without compensation 

 therefor, to such owner." The court upheld the constitutionality of such pro- 

 posed legislation on the general grounds that "the legislature has full power 

 to make and establish all reasonable laws and regulations for the defense and 

 benefit of the people of the state, not repugnant to the constitution of the 

 state or the United States, * * * and however inconvenienced, restricted 

 or even damaged particular persons and corporations may be, such general 

 laws and regulations are held to be valid unless there can be pointed out such 

 provision in the constitution of the state or of the United States, which clearly 

 prohibits them." The constitutional provision most apt to be cited as a bar- 

 rier to such legislation is: "Private property shall not be taken for public uses 

 without just compjensation." The Maine supreme court's opinion covering 

 this ioint was: "We do not think that the proposed legislation would operate 

 to 'lake' private property' within the meaning of the constitution. AYhile it 

 might restrict the owner of wild lands in his use of them, might delay his 

 taking some of. the product, might delay his anticipated profits, and might even 

 thereby cause him some loss of profit, it would nevertheless leave him in his 

 lands, their product and increase untouched and without diminution of title, 

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



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