Joseph McKenna

“ The purpose is governmental, but it is contended that the regulation of the statute under review is too distant from the purpose and is simply an arbitrary exercise of power. And this is a certain proposition of law, having no other basis in the record than that the forbidden litter of the cut-down and removed timber is 'absolutely harmless' and contains 'no element of injury or damage to any one' and cannot 'by any possibility be construed into a nuisance.' The assertion eludes exact estimation. 'Tree-tops, boughs, and laps' left upon the ground may not of themselves be a nuisance ”

“ The motion was denied and defendants were put on trial before a jury which specially found that the city of Asheville owned about 16,000 acres of land having an outside boundary of 12 miles and held the land as a watershed; that defendants were owners of standing and fallen timber adjoining the watershed on the north about 4 miles and within 400 feet of the watershed but did not own the land upon which the timber stood and that the water did not drain from the timber, or the land upon which it stood, on to the watershed. ”

“ Nor do we find illegal discrimination in the statute. The charge is based upon the contention that the statute condemns acts committed by individuals 'when if like and similar acts be done by municipalities there is no violation of the statute.' Counsel again insists too much upon the abstract. ”