REGULATION OF TIMBER CUTTING 



281 



In discussing this opinion the Maine 

 justices cited two Massachusetts cases: 



Commonwealth vs. Tewksbury, 1 1 

 Metcalf 55 (a case decided in 1846), 

 which prohibited the owners from re- 

 moving any stones, gravel or sand from 

 their beaches in Chelsea, as they were 

 necessary to the protection of Boston 

 Harbor. 



The Massachusetts decision defined 

 this as a "just and legitimate exercise 

 of the power of the legislature to regu- 

 late and restrain such particular use of 

 property as would be inconsistent with 

 or injurious to the rights of the public." 



Also, Commonwealth vs. Alger, 7 

 Cushing 53 (a case decided in 1851), 

 in which the defendant was prohibited, 

 by statute, from erecting a wharf on 

 his own land, although it was admitted 

 that his rights were complete, barring 

 the statute, and that the wharf would 

 not be an obstruction to navigation. 

 Chief Justice Shaw in the most sweep- 

 ing terms asserted the right of control 

 of private property by the legislature in 

 the public interest. 



The following paragraph from the 

 Maine opinion is of interest for its 

 broad application to the present conser- 

 vation movement. 



"There are two reasons of great 

 weight for applying this strict construc- 

 tion of the constitutional provision to 

 property in land : such property is not 

 the result of productive labor, but 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 helplessly 

 impoverished and one great purpose of 

 government defeated." 



This opinion was signed by Justices 

 Emery, Whitehouse, Strout, Peabody, 

 Spear and Cornish. Justice Woodard 

 had died while the matter was pending 

 and Justice Savage declined to express 

 any opinion on the ground that a suffi- 

 cient exigency had not arisen to justify 

 the senate in calling upon the supreme 

 court. 



It was, therefore, practically a unani- 

 mous opinion of the court. 



DISCUSSION BY A FORESTER 



By AUSTIN GARY 

 Superintendent of State Forests of New York 



THE ideas which I have to contribute 

 on the subject under discussion arise 

 mainly from experience, first in the 

 employ of operating lumbermen, and 

 second as a state official. I believe they 

 are all on the conservative, go-slow 

 side. 



In the first place, the opinion of the 

 Maine supreme court (and as a resi- 

 dent of Maine up to seven months ago, 

 I have taken great interest in that), 

 while it may be thoroughly good law, 

 does not seem to me from the lumber- 

 man's or forester's point of view to 

 cover all the ground. The court says 

 that preventing a man from cutting his 

 smaller, growing trees is not taking his 

 property but postponing its use that 

 he has it just the same and may use it 

 at a later time. That is true in the literal 

 sense, but does not cover the whole prob- 

 lem. Not, I think, for the owner of 

 the timber. He has in the first place to 

 bear interest charges on his investment 

 from one period to the other and the 

 relation is questionable between inter- 

 est and the income from growth that 

 might offset it. Second, he has to pay 

 taxes on the property, and to my mind 

 no greater hardship or injustice could 

 be worked on a forest owner than to 

 compel him to hold his property subject 

 to the sort of taxation which he is liable 

 to in some of our states. Third, the 

 safety of the property from one period 

 to another is by no means assured. The 

 owner prevented from realizing on his 

 timber at the present time may before 

 he can get at it again find it burned, 

 killed by insects or blown down. Lastly 

 this principle as far as enunciated leaves 

 out of sight entirely the desires, necessi- 

 ties and financial relations of the owner 

 of the property. Such property may 

 be held with reference to a particular 

 manufacturing enterprise or for income 

 derived at a particular time. The inter- 

 est of the community perhaps should 

 override these considerations, but at 



