STATE REGULATION OF PRIVATE FORESTS 83 



opportunity to realize values. Tie might suffer delay bnt not deprivation. 

 While the nse mijiht be restricted, it would not be appropriated or 'taken.' " 

 The Maine legislature has never taken advantage of this opinion of the 

 court to pass any laws regulating timber cutting in that state. 



It thus appears probable that the regulation of private forests is con- 

 stitutional, if justified on the grounds of public necessity. In what does this 

 necessity consist? There are three ways in which forests afifect the public 

 welfare. They are used as public parks and health resorts; they influence 

 indirectly the run oft' of water and soil erosion; and they furnish wood 

 products. 



It will be generally conceded that the state should not require private 

 owners to refrain from' cutting, merely to preserve the aesthetic features of 

 the forest. Where parks are desired by the public they must be bought out- 

 right. The state must own the property. The public rights can then be pre- 

 served. Parks usually mean i)rohibition of cutting. This is not forestry, 

 though often urged under the guise of forestry. Neither is it conservation, 

 but waste, pure and simple. Yet, if the public want the forest solely for its 

 park features and are willing to see it rot rather than use it, there is no 

 constitutional objection provided the property is purchased of the owners. 



To deprive an owner of all use and profit is, of course, unconstitutional 

 and requires compensation by purchase. 



("an the state force an owner to modify his cutting for the purpose of 

 continuing the productiveness of the forest, for the sole purpose of furnishing 

 the public with wood products? 



Theoretically this might be done if it could be shown that wood was in- 

 dispensable to the public welfare, that it could not be obtained elsewhere, nor 

 satisfactory substitutes found, that the amount of land available for wood 

 production was limited, and that the state itself could not assume the burden 

 of purchasing and managing such lands for wood production. In this con- 

 nection the supreme court of Maine said: "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 peo})le may be helplessly impoverished, and one 

 great purpose of government defeated." But while possible, the constitu- 

 tional grounds upon which such legislation rests are rather shaky, and depend 

 not only on demonstration of the need of such measures, but also upon the 

 cost to the owner. 



Timber is a crop, but one which requires from forty to one hundred years 

 to grow. Let us compare it with agricultural croi)S. It is a matter of vital 

 interest to the public that all agricultural soils be brought under cultivation, 

 and that the methods of crop rotation and diversified farming best calcu- 

 lated to maintain the productiveness of the soil and the largest yields be 

 generally adopted. If it has been clearly demonstrated that fertilizer is 

 necessary, a law might be passed requiring the use annually of a certain 

 quantity per acre of commercial fertilizer or its equivalent in barnyard 

 nuinuie for every acre of tillable land. The projjer rotation of crops, grain, 

 hay and pasture, might be worked out for certain districts and incorporated 

 into a law whose purpose would be to force improvident or ignorant farmers 

 to do better farming, on account of the importance to the community of pre- 

 serving the fertility of the soil and producing the maximum yields, lias 

 such legislation ever been passed? And would any legislature of farmers find 

 great difficulty in pointing out a few fairly plausible reasons why it should 

 not i>ass? From the standpoint of the producer, he alone should be the judge 

 as to methods, since he must bear the financial risk of the undertaking. And 

 the farmer knows well enough that no law could be passed regulating his 

 methods, since these must be determined according to local conditions in 



