FOREST, FISH AND GAME COMMISSIONER. 391 



On March 6, 1905, Thistlethwaite entered into a contract with the 

 Hinckley Fibre Company whereby Thistlethwaite sold to said company, 

 upon this Eagle Point property: 



" The softwood timber suitable for lumbering or manufacturing pur- 

 poses above four inches in diameter, two feet from the ground, and the 

 hardwood timber above ten inches in diameter, two feet from the ground." 



Under this contract the Hinckley Fibre Company entered upon the land 

 in question and proceeded to strip it of practically all growing timber thereon. 



In March, 1907, this Department commenced action against the 

 Hinckley Fibre Company and Thistlethwaite for a violation of the terms of 

 this covenant and to secure an injunction restraining the defendants from 

 cutting any of the timber upon said lands for commercial or other pur- 

 poses, except a perpetual use of said lands for permanent forestry, hotel, 

 camp and cottage purposes. 



This action necessarily involved a construction of the above covenant 

 and a judicial determination as to the permitted use of the reserved land 

 subject to this covenant. This action was vigorously opposed by the 

 defendants; their contentions being that the acts done and contracted to 

 be done were permitted under the terms of the covenant as a practice of 

 permanent forestry and as a preparation of the lands in question for use 

 and sale for hotel, camp and cottage sites. 



The land to which the covenant applied was extensive in area and 

 had become covered with a valuable forest growth which the owners desired 

 to lumber and market. 



The action was referred to Hon. Milton H. Merwin, referee, who after 

 an extended trial granted judgment for the plaintiff restraining the defend- 

 ants from further operations on the tract under the lumbering contract 

 and held that such lumbering contract was in violation of the covenant. 

 Appeal was taken to the Appellate Division, Fourth Department, from the 

 judgment entered on the report of the referee and that court affirmed the 

 judgment upon the opinion of Merwin, referee, from which opinion we 

 quote the following: 



" The policy of the State was to have a preserve of wild forest lands. 

 The restrictive covenants did not go so far as to impose limitations upon 

 what would otherwise be the ordinary use as then understood. 

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