FOREST GRAZING RIGHTS IN EUROPE SOME DEADLY PARALLELS

(By P. L. Buttrick)

In view of the demands of our western stockmen, as set forth in the September issue of the American Wool Grower, for property rights to graze stock on our national forests and public domain, it is well for us to look to the accumulated experience of Europe where such "rights" have been in force for centuries. The public interest has suffered from them in three distinct ways, under their cover, large areas of forest, both public and private, have been needlessly destroyed or rendered only partially productive, second, they have held back the progress of agriculture by perpetuating uneconomical stockraising methods, and third, they have been the cause of an enormous amount of wasteful litigation and ill-feeling. Despite a struggle going back to the early days of forestry, neither complete control, much less eradication of such "rights" is yet complete, nor, despite the earnest efforts of forest administrations, likely soon to be. Furthermore, the "rights" which our stockmen demand, generally speaking, exceed in scope those prevailing in Europe. We intend here to study them in a generalized way, giving briefly their origins, their legal character, and the nature of the steps taken to control and eradicate them, confining our attention to England, France, and Germany, since somewhat contrasting methods have been used, although rights of a similar nature have prevailed in other countries. Their efforts upon the forest, together with the general history of grazing in various European countries, is being discussed in a series of articles in American Forests and Forest Life, and more briefly in a memorandum attached to the report of the special grazing committee of the Society of American Foresters, headed by Prof. H. H. Chapman. In a subject as far-reaching and complicated as this there are certain to be minor inconsistencies to every major statement, but it is believed no fundamental errors have been made. Mrs. Varl C. Barth, of New Haven, who comes of a family of Norwegian foresters, has assisted with the German literature.

There is large literature regarding them. It concerns their origini, their legal status and their relation to forest management. It is not an easy literature to search, being mostly in French and German, and interwoven with historical references of little interest to foresters. The literature in English is chiefly in law books consisting largely of digests of suits regarding conflicting rights.

Modern English works are: Baden-Powell's "Forest Law," 1893; Williams' 'Rights of Common," 1880; and Cooks's 'On Enclosures,' edition of 1865. As regards France, Huffel's Economic Forestiers," Vol. I, 1904, gives a concise history of the origin of the rights, while Guyot's "Cours de Droit Forestier" (Court in Forest Law), Vol. II, 1910, and Michel and Lelong "Prin cipes de Legislation Forestiere" (Principles of Forestry Legislation), Vol. I 1901, give their legal aspect. Older French works such as Meaume's "Droits d'Usage dans les Forets (Rights of Usage in the Forests), while perhaps more complete are not accessible in American libraries. The principal German sources are: Die Geschichte da Waldeigenthums in Deutschland (The History of Forest Ownership in Germany), Bernhardt, 1875; Die Abloesung und Regelung der Waldgrundgerechtigheiten (The Redemption and Regulation of Forest Rights), Danckelmann, 1880-99; Die Rechtsverhaltnisse des Waldes (The Legal Status of the Forest), Eding, 1874; Das Forestgesetz fuer Baeyern (The Forest Law for Bavaria), 1. Ganghefer, 1889; Die Forstwirthschaftslehre (Forest History), Grabner, edition of 1866.

FOREST RIGHTS-DEFINITION AND ORIGIN

A forest right may be defined as the right of a person or group of persons, corporation or political unit, to use some of the product of a forest of which they do not own the soil. These rights pertain to various products, such as wood, pasturage, or minor resources, and can legally best be compared to rights of way but, in consequence of the right of the holder to remove some of the products, are a real drain upon it, rather than simply curtailing the landowner's authority over portions of his own land. From a forester's point of view they are an extension and full legalization of the free use privilege, extended to settlers in the neighborhood of our national forests. Their general

names in England are servitudes, or rights of common, in France Droits d'Usage (rights of usage), in Germany Waldgrund servituten (forest land servitudes) or Grundgrechtigheiten (ground land rights). They also have various names according to the products to which they pertain and another set defining their legal status. The grazing rights are naturally the most important in fact as well as for the purposes of this study, but are generally considered together.

Forest rights find their earliest roots in the old communal land holding of early settlements and the later complicated system of feudal land tenure of Medieval times. These which grew up under the early communal land system originated without definite grant, but were later recognized as legal by right of immemorial usage. Those originating in definite written charters, granted either by public officials for public lands or by private owners, usually the feudal lords, on their own, were legal from the time of the origin. Sometimes these grants were simple free-use permits, which with the passage of the years, became crystallized into legal rights.

Rights which grew up by custom, or prescription as the legal term is, were usually unlimited, the holders being entitled to all the wood they could use, or to pasture all the stock they wished, in both cases without regard to the welfare of the forest. Those conferred by definite grants or out of free-use permits were more apt to be for a definite number of animals or for a definite amount of wood.

STRUGGLE BETWEEN RIGHT HOLDERS AND THE PUBLIC

Rights originated at a time when forests were abundant, and pasturage was scanty. As time went on, and the reverse conditions obtained, they gave rise to a fuel struggle, on the one hand a constant attempt on the part of the land owners and the public to abolish, or at least to restrict them to reasonable bounds, in order to save the forest and to maintain effective control of their own property; and, on the other, a constant attempt on the part of the right holders to extend and consolidate their rights without reference to the welfare of the forest and to use them as a tool for obtaining complete possession of the property over which they adhered.

France, Germany, Austria, and to a lesser extent England, have, after centuries of struggle, now forbidden the creation of new rights, have extinguished existing ones wherever possible, and have developed laws and methods of controlling their exercise where extinction has proven impossible. Although the modern laws would, from a legal point of view, seem reasonably adequate to protect the forest from abuse at the hands of the right holders, actually, as any forester can see, they fail to do so. The failure is not so much in the laws or their enforcement as in the inherent nature of the rights themselves and the point of view which the right holder is, by virtue of being a righ holder, bound to have.

It is difficult to see how these same conditions could fail to obtain in our own forests if the same sort of rights are set up.

CONTRASTING METHODS OF CONTROL

It is interesting to compare the legal methods used by the different countries in dealing with rights.

In Germany the principle is legally recognized that forest rights with very minor exceptions are damaging to the public interest and should be eradicated wherever possible. (Danckelmann, p. 124, vol. I and p. 448, vol. II.) Some of the methods which may be used for their eradication would practically amount to confiscation under Anglo-Saxon or French systems of law.

In France the attempts at control have largely taken the form of general legislation based on technical forestry knowledge, court decisions being largely explanatory ones based on statute law. Rights can, generally speaking, be extinguished only by purchase, but the state may do this under its power of eminent domain.

In England, lacking until the last few years a well organized technical forest service, restriction has apparently largely taken the form of court decisions based upon questions of equity as between right holders. The courts do not seem to have been particularly concerned with protecting the forest.

Such

legislation as has been passed in England has mostly been in the form of "Inclosure acts" under which the "Lords of the manor," in whom for legal purposes title to public lands was assumed to reside, usually the most important right holders, obtained complete personal title to the public lands and this excluded the small right holders. The earliest of the inclosure acts, known as the Statute of Merton, was passed in 1236. Action under these inclosure acts have frequently been arbitrary and public opinion has apparently caused them to become practically dead letters, thus leaving the small right holders in possession of the field and free to destroy the remaining forest and further deplete the scanty pasturage.

It is quite evident that the English system is the least successful of the three..

LEGAL NATURE OF FOREST RIGHTS

Forest rights are a form of property, not a sort of indeterminate privilege. As property they fall into two legal categories; being either personal or realreal in the sense of real estate.

A personal right is the right of one person to graze or make use of part of the products of a forest not his own. This right extends to him irrespective of his residence, and was usually conferred by definite grant but was apparently untransferable and usually terminated with the death of the holder. (Guyot, p. 184, vol. II.). Personal rights have now practically become extinct, being largely unlimited, they have fallen under the ban alike of the courts and legislative enactments and seem to have been rare even at the time when rights were growing up. In England, where they are known as rights en gross (Williams, p. 184), there seem to be traces of their continued existence, but apparently in both France and Germany they have been outlawed by various means. (Baden-Powell, p. 83, Williams, p. 93, Michel and Lelong, vol. I, p. 118.)

A real right is a right appertaining to two pieces of property, to one of which the right adheres and upon the other of which it is exercised. For example, the owners of a certain farm, whoever he may be at the moment, has the right to use wood or pasture cattle for the use on his own farm on a certain forest, whoever be its owner at the time. In other words, the right pertains to the property and not to its owner. In legal terms the property to which the right adheres is known as the dominant estate, that wherein the right is exercised is known as the servient estate. In the light of forest history these terms fully live up to their rather ominous sounds.

Evidently the rights demanded by the western stockmen lack the property limitations of real rights and the time limitations of personal rights, and would in consequence be doubly vicious. It would almost seem that the stockmen must have spent some time studying the European system, and devised one which, from their point of view, would improve upon it.

TRANSFERABILITY OF RIGHTS

Real rights, although at an early date they had little if any limitation as to the amount of stock which could be grazed or of wood taken, were apparently always limited as to their transferability. The owner could not sell his right independently of his property, nor conversely could the owner of the forest purchase it without purchasing the property to which it was attached. If the property was rented, the right pertained to the occupier not to the absentee owner; one could not be rented apart from the other. (Cooke, p. 11.) In case the right holder sold part of his property, the new owner possessed only a proportionate share of the original right.

Obviously rights of this kind could not fall to absentee ownership, as could those proposed by our western stockmen. The local right holders, while they were more interested in extending their rights than in preserving the forest, were certain also to suffer greater injury from its destruction than would nonresidents. The grazing "rights" proposed by our western stockmen could easily fall into nonresident ownership, nothing would prevent their all being owned in New York, or Russia for that matter. No effort of the imagination is necessary to realize how little absentee owners would be interested in preserving the forests particularly when their own interests would seem to profit by its destruction.

DIFFICULTY OF EXTINGUISHING RIGHTS

No matter how great a drain on the forests these rights become, in the absence of special legislation landowners, whether public or private, could extinguish them only by purchasing the land holdings of the right holders. As this would frequently have meant the purchase of entire villages or farms, it frequently meant that the owners gave up the struggle and practically abandoned control of their property.

In the case of public forests, extinction once the rights had become legally recognized was impossible by legislation or executive action under a democratic form of Government. Being a form of property, their arbitrary extinction would amount to confiscation. Consequently, in France, legal provision was finally made by which with certain exceptions their purchase by agreement or under condemnation proceedings irrespective of the land which the right holder owned is possible (Art. 64, Code Forestiere.) Apparently this form of extinction does not exist in England, but does in Germany. (Danckelmann, p. 123.) It takes no prophet to foresee the difficulties sure to face our Government in extinguishing grazing rights if once legally created.

ABUSE OF A RIGHT NOT A REASON FOR ITS EXTINGUISHMENT

If a grazing or free-use permit is issued under present conditions by the forest officers on one of our national forests it presumably contains a clause empowering the forest officers to revoke it for noncompliance with its conditions or for damage to the forest. A forest right once legally established, however, can not be extinguished because it has been abused and the forest damaged. (Guyot, p. 176.) Since it is a form of property it can no more be taken from an owner because he abuses it than the property of a man can be confiscated because he maintains a gambling den upon it in defiance of the law. The only recourse for the owner or forest administration in case the forest has been damaged is through action in the courts. This may result in financial compensation but does not restore the forest, which in the case of public forests, at least, is more important than obtaining compensation for its destruction. It is difficult to see how it could be any different in this country if the "rights" asked of Congress by the stockmen should be granted.

AUTOMATIC EXTINCTION OF RIGHTS BY NONUSE

It sometimes happens that a right holder will neglect for many years to make use of his right and then perhaps wish to use it to annoy the landowner or embarrass the forest administration at a critical moment. To meet this situation the French Government passed a sort of statute of limitations under which they are declared to have lapsed after 30 years of nonuse. (Guyot, p. 315.) In England even this rather lenient provision seems to be lacking, court decisions as to whether a right expires for nonuse being conflicting. (Cooke, p. 60.)

RIGHT OF PROPERTY HOLDERS TO PUT PROPERTY TO OTHER USE

In this connection it must be borne in mind that a right holder is, in the eyes of the law, not merely the possessor of a sort of perpetual free-use permit; he is the owner of as much forage or wood as his right calls for, just as the owner of mineral rights is legally in possession of the minerals, the owner of the surface being bound to respect his right to remove them and can not obstruct him in so doing.

Legally the land owner must furnish the forage or the wood called for under the right and may not do anything which tends to destroy the grass or the wood which is not his but belongs to the right holders. While the right holders have never been able to prevent the entire conversion of a property from grazing or forest to industrial or residential uses, many attempts have been made by them to do so. In rare instances the holders of wood rights have insisted before the courts that owners manage their property in such a way as to keep the forest productive, so as not to defraud them of their property. (Baden-Powell, p. 293.) In far more cases holders of grazing rights have, through the sanction of the courts, prevented the owners, both

public and private, from reforesting, since the growth of the grass, which belonged not to the landowners but to the right holders, would be adversely affected. (Cooke, p. 65.)

In Germany despite the legal recognition that no servitude can be hostile to proper use of the land, it has been written into the law that owner may not change the form of forest management in such manner as to decrease pasturage, such as by a change from hardwoods to conifers, for instance, or he may not plant up natural blanks in the forest, as that would decrease grass growth. (Eding, p. 92.)

In England if it can be shown that the right holders will have enough grass cven if part of the area is planted they can sometimes obtain legal permission to do so (Cooke, p. 65), but in practice this is impossible of application. (Forbes, Afforestation of Commons, Quarterly Journal of Forestry, 1924, p. 50.)

In France the grazing interests have repeatedly, by political influence, blocked attempts of the forest service to reforest public lands. (An article on this subject is in preparation.)

Since like causes produce like effects it is difficult to see how, if Congress establishes grazing property rights on our national forests, they could avoid having the same legal nature as those in Europe and give rise to the same limitations to the power of Uncle Sam to manage his own forests and public domain that they have in European governments.

ORIGINALLY RIGHTS WERE ON AN AREA BASIS-ANALOGY WITH THOSE ASKED BY OUR STOCK MEN

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Demand No. I of the stockmen as set forth in the September issue of the National Wheat Grower specified that the rights should be on an area basis." This means, if it means anything, either that the right would be limited only, by the boundary of the forest upon which it applied, or that the amount of stock which could be grazed on a given area would be unlimited in number. Either interpretation would be dangerous to the welfare of the forest and could legally be stretched to sow seeds for the ultimate destruction not only of the trees but also the range as can be seen from European experience.

In the dim past pasturage rights were unlimited both as to area wherein they applied or as to the amount of stock which could be grazed. Nearly 200 years before Columbus discovered America it was realized in France that such unlimited rights gave right holders the legal power to let their stock destroy the whole forest if they were so minded.

Fortunately, for the forest, it was not so necessary in those days that everything be done according to the forms of law as now, and we find French royal edicts restricting the area over which grazing could be carried on on public forests by right holders. The first of these laws was issued in 1318. (Huffel, p. 138, Vol. I.) Somewhat later a more limited power was given to legally accomplish this in England by "statute of inclosures," which allowed owners and forest officers to exclude stock after cutting till reproduction could become established and reach an age where it would supposedly be immune from damage. Previous to this it had been more or less arbitrarily carried out on the royal forest by the kings.

Later in France it became evident that excessive grazing could destroy the forest piecemeal so long as an unlimited amount of stock could be placed upon it even when the forest officers had authority to limit the amount of stock to a point not to tax the yield capacity of the forest. (Art. 5, c. 19, Ordonnance de 1669.)

In England it is established in common law that no right holder may place enough stock upon a forest or pasture to exclude the stock of others, regardless of "priority." As Cooke (p. 65) expresses it: "It is contrary to the very essence of a right to turn out such an unlimited number of cattle by which the whole of the herbage might be consumed * *. Such a user the law con

*

siders not as a right but as a wrong." He goes on to say that one could no more acquire by prescription such a right than they could a right to clip the Queen's coin.

Since, however, it is the courts that determine the relative rights of each right holder, it usually becomes a question of equity between them rather than one of a consideration of the welfare of the forest or the grazing ground, and in the long run, appeals to the courts. if allowed in this country, as desired by the stockmen, would tend in the same direction. This statement is no reflection on the courts, but is inherent in the very nature of things.