The Committee concluded that “neces-
sity required that the property in these streams should be made subservient to public use, and that, for such purpose, they allowed the improvements to be made.” The Council voted it would be inexpedient to recommend to the legislature the repeal of these laws.34
The takings component of these water laws seems at times water-logged, in the sense that it defies the usual buoyancy of the question of what is yours and what is ours, as governed by Article 2. What is yours, if you own land along any stream that in springtime becomes a torrent, may be used by others, as long as damages are paid. No damages are paid, however, for the use of the non-boatable stream, or its straightening, yet that is as much a tak- ing as the destruction of piers, dams, and farmland. The bigger rivers are highways, and nobody gets to drive you off them, but those “other waters” are seasonably just as available—they may not be boatable, but they are logable—for use by others, with- out just compensation.
Log Drives in the Courtroom
It was money, though, not constitutional rights, that brought log drivers into court. Oliver Coe’s milldam in Burke, on the Pas- sumpsic River, was ruined by Dudley P. Hall’s log drive in May of 1861.35
It was a
time of high water, and the damage made the mill useless. Coe sued Hall for five hun- dred dollars. Hall claimed the protection of a special act of the legislature, allow- ing him to widen, deepen, and straighten the Passumpsic, removing all obstructions, from Newark to one mile south of the place where Moose River enters the Passump- sic, and that act allowed a suit for damag- es in county court. As Coe had brought his suit under the common law, and not under the act, Hall argued for dismissal, for fail- ing to pursue the correct remedy. The stat- ute provided for commissioners to assess the damage; under the common law, Coe would have a jury trial on damages.36 Under the act, Hall was assured fifteen years of rights to maintain the river bed and to charge a toll for each thousand feet of timber or lumber was sent down that riv- er, renewable for a second fifteen years if he wished.37
The Court disagreed this con-
stituted any defense. The remedy offered by the act was cumulative, not exclusive. The judgment at common law was good. McLean (his first name is not given in the
report) had a contract with Dean to float logs through Dean’s mill-dam on the Bat- tenkill in Manchester, with a promise to re- pair all damage done by the drive. It was the spring of 1867, and when the logs reached the mill-dam, the dam was man-
www.vtbar.org THE VERMONT BAR JOURNAL • FALL 2011 13
Ruminations: The Law of Log Drives
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