who are specially qualified in the legal matters constantly demanding

attention.

In this Department, outside of the fish and game violations, the Commission is charged with the care, control and custody of all the land in the Forest Preserve comprising 1,641,523 acres, and the legal business in the care of this vast property, in the prevention of trespass and invasions upon the public rights, and in the defense of attacks upon its title, is of great importance and involves large interests of the State.

The Legislature, in the enactment of the statute conferring the power upon the Commission to employ counsel, have recognized the great importance of the needs of the Department in having in its service attorneys who are skilled and familiar with its special litigation, and the decision of the court in this case sustaining the constitutionality of such statutes is one of far-reaching importance and of great benefit to this and other departments of the State government.

Woodruff Road Litigation

In 1907, Timothy L. Woodruff made application to the Forest, Fish and Game Commission, under section 220 of the Forest, Fish and Game Law (chapter 20 of the Laws of 1900), for the approval of a route of a proposed highway or the designation of such other route as might be proper, over and across certain lands in Township 4, Totten and Crossfield's Purchase owned by the State and being a part of the Forest Preserve.

The highway sought to be constructed was intended to connect by a direct route the premises of Mr. Woodruff in Township 6, known as Kamp Kill Kare, and premises owned by him in Nivin's Tract in Township 4.

The application was made to the Commission invoking the exercise of the power vested in it by the above section to "lay out roads and the paths" in the Adirondack and Catskill Parks - the right to the approval of said proposed route being based upon a reservation of five acres out of every hundred acres for highways contained in the original patent by the State, pursuant to chapter 67 of the Laws of 1786.

The important question was raised by this application as to the right of the Commission to lay out a highway over the lands of the State constituting its Forest Preserve, by reason of the reservation for highways contained in the original patents and by the authority and power conferred upon the Commission by the statute.

The application was denied by James S. Whipple, Forest, Fish and Game Commissioner, from whose decision thereon we quote the following excerpts:

"If the proposed highway is to be a public highway, then unless authority is found to lay it out across the park lands of the State in the Forest Preserve by virtue of the fact that five acres in every hundred acres were reserved in the grant made by the State more than one hundred years ago, it cannot be laid out. If it were admitted that originally after the conveyance from the State that it could have been done, can it be admitted now after the lapse of more than a hundred years and after the State has again acquired the complete title to the lands across which it is proposed to lay out said road? In other words, having again obtained the complete title to the lot, is not the reservation merged in the general title in the State? Under the Constitution, can any portion of the Forest Preserve of the State of New York be taken for highway purposes on the principle of the ancient reservation as stated in this petition?

In view of all the facts and the very serious doubt as to whether any right exists which the petitioner can through this Commission or in any other way take advantage of to obtain said highway, the application is denied."

The decision of the Commissioner being primarily based upon the want of power to act, Mr. Woodruff made application to the Supreme Court for a writ of mandamus commanding the Commissioner to approve the proposed route or to lay out such other route as might be proper. This application was denied by Mr. Justice George H. Fitts, from whose decision an appeal was taken to the Appellate Division where the decision of the Special Term was unanimously affirmed.

Mr. Woodruff then made application to the commissioners of highways of the town of Arietta, Hamilton county, the town and county in which the lands in question were situated, requesting that the commissioners

by reason of their common law powers and the provisions of the highway law of the State lay out in accordance with law the highway in question; the application being opposed by the Forest, Fish and Game Commissioner was denied by the highway commissioners in a decision holding "that the provisions of the patent referred to in said petition do not constitute a dedication of land for highway purposes within the meaning and intent of section 80 of the Highway Law, and upon the further ground that if the provisions of said patent do constitute such dedication that the lands through which the proposed highway is to be opened, being situate within and constituting a part of the Forest Preserve, that said commissioners of highways have no jurisdiction to grant said application."

An agreed controversy upon the application to and decision by the highway commissioners was thereafter submitted to the Appellate Division, Third Department, and the following questions were presented to the court for decision:

I. Whether the letters patent constitute a dedication of five acres out of every hundred acres over which the highway commissioners of the town of Arietta, Hamilton county, could exercise jurisdiction for the purpose of laying out a highway therein as provided by section 80 of the Highway Law?

2.

If said letters patent constitute a dedication of five acres out of every hundred acres over which the highway commissioners of the town of Arietta, Hamilton county, can exercise jurisdiction for the purpose of laying out a highway, are said commissioners deprived of jurisdiction for said purpose by reason of the lands being situated in and constituting a part of the Forest Preserve of the State?

The questions thus presented were determined by the Appellate Division in favor of the State and judgment was directed accordingly. From this judgment an appeal was taken to the Court of Appeals, which court dismissed the same.

The result of this litigation is one of far-reaching importance and indicates the impossibility of procuring highways across forest preserve lands so long as the Constitution remains unchanged and continues to impress upon the preserve the character of a wilderness to "be forever kept as wild forest lands."

Railroad Forest Fire Proceeding

In September, 1908, James S. Whipple, Forest, Fish and Game Commissioner, made application to the Public Service Commission, Second District, under section 72 of the Forest, Fish and Game Law, for an order requiring the railroads in the Forest Preserve counties to change their fuel from coal to oil or to electric power.

The preliminary hearing was had upon this application by the Public Service Commission on October 12, 1908, at which hearing all the railroads cited to appear, the Forest, Fish and Game Commission and several large forest property owners, as well as organized societies for forest protection, were represented and a personal examination of the area burned by railroad fires during the season of 1908 was arranged. Upon this inspection, which occurred October 15, 1908, the Public Service Commission was represented by Commissioner Osborne, from whose report thereon we quote the following:

"In order to protect the forests in the future some more efficient measures must be taken by the railroads than those now in use.

"I may say for my own part that I gravely question whether the damage for this year may not prove to be greater than that of 1903. At that time large tracts of timber were destroyed; but it was in the spring of the year and the ground was not so dry as during these present fires, which have to a large extent burned over the same area, destroying a great deal of the spongy, mossy earth, the floor of the forest, which nourishes the vegetation and which would have enabled the trees to grow up again within a generation or so. There are now large tracts burned down to the bare rock; not only the forests but the foundation of the forest gone. That can probably never be replaced. I do not mean to exaggerate the picture, or to intimate that the whole or even the greater part of the Adirondacks is wrecked; fortunately, it is not so bad as that. But it is undeniable that a vast territory has been seriously and a great deal of it irretrievably damaged."

The railroads vigorously opposed the application and requested that hearings be had at which testimony might be taken showing the causes and

extent of the fires and damage therefrom caused by railroad operation, and in accordance with such request a large number of hearings were held at Tupper Lake, Saranac Lake, Malone and at Albany, and 3,000 pages of testimony were taken bearing upon the cause and extent of railroad fires. and the adequate and practical remedies to prevent and eliminate their recurrence in the future.

The testimony taken was limited to the conditions existing along the right of way of The Mohawk and Malone division of the New York Central from Utica to Malone, and along the right of way of the Chateaugay branch of the Delaware & Hudson Company from Plattsburg to Lake Placid, and to the adequacy of the remedies proposed to cure the evil and menace.

From this testimony it was established, and the Public Service Commission so held, that the railroads were responsible for 40 per cent of the forest fires occurring in the Adirondacks during the year 1908.

Upon the question of remedies the Forest, Fish and Game Commission proposed and established by proof before the Public Service Commission the practicability of oil burning operation as a complete and effective remedy against the conditions disclosed, and the railroads opposed this remedy and urged as a substitute the improvement to ash pans and netting in front end of locomotive; the cleaning of right of way by removal of combustible material by burning and the cutting and removal of grass and weeds therefrom twice a year; the organization and maintenance of a fire patrol; the installation of telephones and fire train equipments.

The substitute urged by the railroads was substantially identical with the requirements of the statute which had been in existence for several years, and the railroads proposed as a remedy to this deplorable condition. merely the methods of prevention which the statute already required them to perform.

Much expert and practical testimony was taken bearing upon the efficacy and adequacy of the remedies proposed, with the result that the proof established the efficacy of the remedy proposed by the Forest, Fish and Game Commission beyond question, and that the proposals of the railroads, while as preventive measures might be of some value, as an absolute cure, were inadequate.