Fall 2011-#2. RUMINATIONS.

• Author: by Paul S. Gillies, Esq.

Vermont Bar Journal

2011.

Fall 2011-#2.

RUMINATIONS

THE VERMONT BAR JOURNALVolume 37, No. 3Fall 2011RUMINATIONSThe Law of Log Drivesby Paul S. Gillies, Esq.In Title 25 of the Vermont Statutes Annotated is a chapter on floating lumber.(fn1) The legislature has designed the law to

... apply to every person, partnership, unincorporated association or corporation, that shall drive or float lumber in any stream. The use of any such stream for such purpose shall constitute an election on the part of such person, partnership, unincorporated association or corporation to be subject to the provisions of this subchapter and to be bound thereby. This subchapter shall apply to every owner of the land adjoining any stream so used for the purpose of driving or floating lumber, unless, within sixty days after an alleged injury, the owner notifies, in writing, the public service board that the provisions of this subchapter are not intended to apply.(fn2)

Vermont property law is not a pure science of principles and tenets. The collision of public and private interests is not always clean and neat, and there are compromises that favor commercial interests over private property when water flows, even just seasonally, on boatable and other waters. Boatable waters are protected for hunting and fishing by Section 67 of the Vermont Constitution. Such waters are those used for common passage as highways, according to New England Trout and Salmon Club v. Mather (1896), that is, where waters can be used as a "continuous highway over which commerce is or can be carried on with other states or foreign countries in the customary modes in which such commerce is conducted by water."(fn3) The constitution also protects "other waters," even those that are non-boatable, but only if they are not private property.(fn4)

With the exception of the Connecticut River, private ownership of riparian lands extends to the thread of the stream, unless the deed is more exacting.(fn5) Vermont considered the Connecticut River as waters it could regulate until 1934, when the U.S. Supreme Court established the low-water mark on its western side as the true boundary between Vermont and New Hampshire.(fn6) But up to that time, Vermont law spread its authority along the river, at least to the center, and sometimes to its full width. In 1793, for example, the General Assembly authorized Zebina Curtis and three others to run a lottery to raise $2,500 for clearing the channel of the Connecticut from Lebanon Falls to the Massachusetts line.(fn7) The act did not limit the clearing to one side of the river. Somebody must have wondered at the time, is this a taking?

Streams of Commerce

Over the course of the second half of the nineteenth century, the vast virgin forests of the lands of the north were cut for pulp and saw logs, and worried down the hills to streams, and then on to the Connecticut. The practice began as early as men with axes connected with mill owners to turn these natural resources into money. Early on, trees were seen as encumbrances, and burned on the spot. Then the ashes were made into pearl ash and potash, and earned early settlers essential income. But once settlers started arriving, there was a need for boards, to construct homes, other buildings, and bridges, and an industry created to meet that demand.

Log drives were common in Europe- particularly Sweden, Norway, Germany, and France-for centuries. The castles on the Rhine are said to have been built from tolls collected by the lords who owned the sides of the river from those running logs and other goods.(fn8) Fortunes were made from the forests of New Hampshire and Vermont in the second half of the nineteenth century. The first Connecticut River log drives began in 1830, down the Moose and Passumpsic from Victory, and later on the White and Black Rivers.(fn9) The golden age of log drives began shortly after the Civil War and ended in 1915, as hydro dams and concerns over the environmental and property damage won over the economic advantages of the practice.(fn10 )The last serious log drives on a part of the Connecticut River ended in 1948.(fn11) But for more than half a century, the woods were alive and the rivers were filled by a nascent forest industry and a full use of rivers, boat-able and otherwise, to move logs to mills.

The log drives brought threats to bridges, canals, and dams.(fn12) Log jams were common, and once it took several weeks to clear the falls at Bellows Falls.(fn13) Rivers were straightened by men who sometimes earned the right to charge tolls for others who used the water for their drives, to offset the expense.(fn14) The stories of the hard men and tough conditions of these drives, which began shortly after ice out and ended in early May depending on the amount of rain and snow melt, are legendary. An 1907 article in The Vermonter described the log driver as "worth watching."

He walks from shore on the logs of a 'boom,' as logs fastened in line are called, balances on his rolling footing by the aid of his long pike-pole-and wouldn't make a mite of fuss if he fell in. But he doesn't fall-very often. He jabs and pries, and rolls the logs which have been selected as principally holding a jam, and will, with his companions, take his chances of getting ashore if the great log pile is suddenly set in thrusting, dangerous action.(fn15)

Like the law, log driving took balance, judgment, and quickness-"a deep 'log sense' that came only with experience, and to some men more than others. The tendencies of currents, the effects of different volumes of water moving at various speeds, the places where jams were likely to form, the reasons for them and ways to avoid them, the places where jams would break, the probable situation of the key-log, methods of railway breaking and dam running, and a thousand other technical details" were essential lessons of the log driver.(fn16)

The usual season brought fifty million board feet down the Connecticut. In 1910, fully eighty million board feet of timber was carried down in...