by Paul S. Gillies, Esq.


RUMINATIONS The Law of Log Drives


In Title 25 of the Vermont Statutes Anno- tated is a chapter on floating lumber.1 legislature has designed the law to


The


… apply to every person, partnership, unincorporated association or corpo- ration, that shall drive or float lum- ber in any stream. The use of any such stream for such purpose shall consti- tute an election on the part of such person, partnership, unincorporated association or corporation to be sub- ject to the provisions of this subchap- ter and to be bound thereby. This sub- chapter 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.2


Vermont property law is not a pure sci-


ence of principles and tenets. The collision of public and private interests is not always clean and neat, and there are compromis- es that favor commercial interests over pri- vate 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, accord- ing to New England Trout & 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 oth- er states or foreign countries in the cus- tomary modes in which such commerce is conducted by water.”3


The constitution


also protects “other waters,” even those that are non-boatable, but only if they are not private property.4


With the exception of the Connecticut


River, private ownership of riparian lands extends to the thread of the stream, un- less the deed is more exacting.5


Vermont


considered the Connecticut River as wa- ters 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.6


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 Gener- al Assembly authorized Zebina Curtis and three others to run a lottery to raise $2,500 for clearing the channel of the Connecticut


10


The act did not limit the clearing to one side of the river. Somebody must have wondered at the time, is this a taking?


from Lebanon Falls to the Massachusetts line.7


Streams of Commerce Over the course of the second half of


the nineteenth century, the vast virgin for- ests 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 Con- necticut. 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 encumbranc- es, 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 cre- ated 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.8


Fortunes were made


from the forests of New Hampshire and Vermont in the second half of the nine- teenth century. The first Connecticut Riv- er log drives began in 1830, down the Moose and Passumpsic from Victory, and later on the White and Black Rivers.9


The


golden age of log drives began shortly af- ter the Civil War and ended in 1915, as hydro dams and concerns over the envi- ronmental and property damage won over the economic advantages of the practice.10 The last serious log drives on a part of the Connecticut River ended in 1948.11


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 hold- ing a jam, and will, with his compan- ions, take his chances of getting ashore if the great log pile is suddenly set in thrusting, dangerous action.15


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 ten- dencies of currents, the effects of differ- ent 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 rollway breaking and dam running, and a thousand other technical details” were essential lessons of the log driver.16


The usual season brought fifty million


board feet down the Connecticut. In 1910, fully eighty million board feet of timber was carried down in two drives.17


Compare this 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 bridg- es, canals, and dams.12


common, and once it took several weeks to clear the falls at Bellows Falls.13


Log jams were Rivers


were straightened by men who sometimes earned the right to charge tolls for others who used the water for their drives, to off- set the expense.14


The stories of the hard


men and tough conditions of these drives, which began shortly after ice out and end- ed in early May depending on the amount of rain and snow melt, are legendary. An 1907 article in The Vermonter described


THE VERMONT BAR JOURNAL • FALL 2011


to the most recent statistics from the De- partment of Forests, Parks and Recreation. The total harvest in 2009 amounted to nearly eighty-two million board feet from Vermont forests, all carried from the forest to the mill by truck.18 Log drives created conflicts between log- gers and mill owners, landowners and log- ging companies, and between companies using the same waters for their drives.19 Where conflict arises, law responds. The legislature was the first branch to address the business.


Statutory History of Floating Lumber In 1779, the legislature enacted a law


prohibiting “weirs, hedges, fish garths, disturbances or incumbrances whatsoever (except dams for necessary mills)” on any river in the state.20


That was more a fish


and game regulation than one designed to favor the logger, but what the law pro- hibited, a log drive would certainly enforce through the application of timber and cur- rent. In 1784, the legislature made it ille- gal to take or destroy white pine or oth-


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