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Oxford Studies in Private Law Theory:
Volume 1
OX F O R D S T U D I E S I N P R I VAT E L AW T H E O RY
Oxford Studies in Private Law Theory is a biennial forum for some of the
best new work in private law theory by scholars from around the world.
The essays range widely over issues in general private law theory as well
as specific fields, including the theoretical analysis of tort law, property
law, contract law, fiduciary law, trust law, remedies and restitution, and
the law of equity. OSPLT will be essential reading for academic lawyers,
philosophers, political scientists, economists, and historians who wish to
keep up with the latest developments in the flourishing field of private law
theory.

Editors
Paul B. Miller, University of Notre Dame
John Oberdiek, Rutgers University

Advisory Board
Lisa Austin, University of Toronto
Molly Brady, Harvard University
Hanoch Dagan, Tel Aviv University
John Goldberg, Harvard University
Matthew Harding, University of Melbourne
Irit Samet-​Porat, King’s College London
Seana Shiffrin, University of California, Los Angeles
Oxford Studies in Private
Law Theory: Volume 1
Edited by
PAU L B. M I L L E R
University of Notre Dame

JOHN OBERDIEK
Rutgers University

1
 3
Great Clarendon Street, Oxford, OX2 6DP,
United Kingdom
Oxford University Press is a department of the University of Oxford.
It furthers the University’s objective of excellence in research, scholarship,
and education by publishing worldwide. Oxford is a registered trade mark of
Oxford University Press in the UK and in certain other countries
© The Several Contributors 2020
The moral rights of the authors have been asserted
First Edition published in 2020
Impression: 1
All rights reserved. No part of this publication may be reproduced, stored in
a retrieval system, or transmitted, in any form or by any means, without the
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You must not circulate this work in any other form
and you must impose this same condition on any acquirer
Crown copyright material is reproduced under Class Licence
Number C01P0000148 with the permission of OPSI
and the Queen’s Printer for Scotland
Published in the United States of America by Oxford University Press
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ISBN 978–​0–​19–​885135–​6
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contained in any third party website referenced in this work.
For my children, Serena and Kieran, with endless love and pride.
—​PBM

For Sophie, Lucas, and Greta.

—​JO
 Acknowledgments

We gratefully acknowledge generous financial assistance provided to this

volume and series by the Notre Dame Program on Private Law and Rutgers
Institute for Law and Philosophy. We are appreciative of logistical and admin-
istrative support provided by Bridget Keating and Alicia Sachau. We are also
grateful to Jamie Berezin and his team at Oxford University Press for their sup-
port of us and of this series. Papers collected in this volume were presented
at a workshop hosted by the London Law Program at the University of Notre
Dame’s London Global Gateway in August 2019. The London Law Program
Director, Prof. Michael Addo, lent us his inexhaustible stores of energy and
goodwill. We remain ever grateful to him, as well.
 About the Editors

Paul B. Miller is Professor, Associate Dean for International and Graduate

Programs, and Director of the Notre Dame Program on Private Law at Notre
Dame Law School. He is also a member of the Global Faculty at the Peking
University Law School in Beijing. Miller previously held a permanent appoint-
ment at McGill University and has had visiting appointments at the University
of Melbourne and Tel Aviv University. His books include Philosophical
Foundations of Fiduciary Law (2014), Contract, Status, and Fiduciary Law
(2016), The Oxford Handbook of Fiduciary Law (2019), and Civil Wrongs
and Justice in Private Law (2020). With John Oberdiek, he also edits Oxford
Private Law Theory, the book series within which the present set of volumes is
published.

John Oberdiek is Distinguished Professor at Rutgers Law School and Co-​

Director of the Rutgers Institute for Law and Philosophy. He has been a Visiting
Professor at the University of Graz, Austria, and a Laurance S. Rockefeller
Visiting Fellow at the University Center for Human Values at Princeton
University. In addition to authoring numerous articles in legal philosophy, he
is the author of Imposing Risk: A Normative Framework (Oxford 2017), editor
of Philosophical Foundations of the Law of Torts (Oxford 2014), co-​editor with
Paul Miller of Civil Wrongs and Justice in Private Law (Oxford 2020), and series
co-​editor with Paul Miller of Oxford Private Law Theory.
 List of Contributors

Shyamkrishna Balganesh, Professor of Law, University of Pennsylvania

Mindy Chen-​Wishart, Professor of the Law of Contract, Dean of the Faculty of Law,
University of Oxford
Victoria Dixon, D.Phil. Candidate in Law, University of Oxford
Larissa Katz, Professor of Law and Canada Research Chair in Private Law Theory,
University of Toronto
Leslie Kendrick, Vice Dean and David H. Ibbeken Professor of Law, University of
Virginia
Ben McFarlane, Professor of English Law, University of Oxford and Fellow of St. John’s
College
Kenneth W. Simons, Chancellor’s Professor of Law and Philosophy, University of
California, Irvine
Andreas Televantos, Associate Professor of Law, University of Oxford and Hanbury
Fellow and Tutor in Law, Lincoln College
Charlie Webb, Professor of Law, London School of Economics and Political Science
Katrina M. Wyman, Sarah Herring Sorin Professor of Law, New York University
 1
Duties and Damages
Charlie Webb

I. Duty and Sanction

The common law is notoriously reluctant to make us do what it says we are

duty bound to do. If I contract to sell you my shoes but refuse to hand them
over, it’s not likely that you will get a court to compel me to give them to you. If
I take yours, the likelihood once more is that a court will not order that I give
them back. Instead all a court will do is order that I pay you damages, aimed
at making good the losses I have thereby caused you. Some think this reveals
something important about the content of our duties. Though we may say that
I owe a duty to perform my contracts and to refrain from interfering with your
assets, what courts in fact do tells a different story. When it matters, a court
will not make me perform my contracts or refrain from interfering with your
assets but will only require me to compensate you for the losses I cause if I do
not. And if this, in the end, is all I will be required to do, we would do better to
recognize that the law leaves me free to break my promise and free to take your
things, my duty, at most, to make good your losses.
This view of what duties we owe reflects a particular understanding of what
it means to owe a duty in law. On this understanding, to owe a legal duty is
to face a legal sanction and, if we want to know what duties I owe, we need to
know what sanctions I will face. So the conclusion that I owe no duty to per-
form my contract follows from the fact that no court will order me to do this.
If the law will not compel it, I am free not to do it. The most notable proponent
of this view, or something like it, was Holmes.1 Holmes’ motivation was to keep
a clear division between law and morality. One way to maintain such a divide
was to show how law mattered even to those who cared nothing for morality.
When I am making decisions, moral considerations carry only such weight as
I give to them. If I choose to give them no weight at all, there is nothing stop-
ping me. Not so with law. For law cannot simply be ignored or wished away,

1 Oliver Wendell Holmes, “The Path of the Law” (1897) 10 Harv. LR 457.

Charlie Webb, Duties and Damages In: Oxford Studies in Private Law Theory: Volume 1. Edited by: Paul B. Miller and John
Oberdiek, Oxford University Press (2020). © The Several Contributors. DOI: 10.1093/​oso/​9780198851356.003.0001
2 Charlie Webb

but will forcibly intrude into our lives. If the law is going to take my liberty or
possessions if I act in a given way, that is a reality to which I cannot but attend
when deciding what action to take. And so, when the law says that I owe a duty
to φ, the one unavoidable, undeniable reality of this duty is the sanction which
I will face if I do not.
This view proposes not so much a revision of the idea of a legal duty as its
rejection.2 When the law recognizes a duty, it is not simply foreshadowing the
imposition of some penalty or other coercive measure on those who fail so to
act; it is telling us that this is something we must do, marking out the relevant
conduct as non-​optional. So the intended message of the “no parking” sign
across the road is not “parking here will cost you,” let alone “you can park here
but you’ll have to pay for it,” but “don’t park here.” If I choose to park and to pay
the fine, I have not cut through to the law’s true, bottom-​line message; I have
ignored it. Now, given that some will not heed this message, and given that the
law’s objective in imposing duties is ordinarily to prompt us to do as the duty
directs, sanctions serve a useful purpose. The law wants me not to park here;
indeed in making this obligatory, it is saying not just that I should choose not
to park here but that the option of parking here is not open to me, so that there
is, in a sense, no choice to be made. If, nonetheless, I remain open to the idea,
the law’s threat to visit unwanted consequences on me is there to motivate me
to choose differently. But, as this brings out, while sanctions are often necessary
and often decisive, they remain a secondary means of the law securing con-
formity, practically significant only for those who do not accept, or are insuffi-
ciently motivated to act on, the obligation the law identifies.3
To think our duties are determined by the sanction the law imposes is to as-
sume the law’s only language is coercion. But while this may be all some people
hear, it is not the only language the law speaks. There are no doubt some who
take nothing from the “no parking” sign save that they will have to pay some
money if they do, who more broadly see the law’s penalties as simply prices.
But this perspective offers not a clearer, sharper view of the law but one which
is radically incomplete. What makes it incomplete is precisely its failure to ac-
count for the way the law purports to bind us, which is to say, its failure to
accommodate, or even make sense of, the idea of a legal duty. So the proper im-
plication of the approach Holmes proposed is not that my contractual duty is
disjunctive—​to perform or to pay damages—​or conditional—​to pay damages

2 See too H. L. A. Hart, The Concept of Law (3rd ed., OUP 2012) 38–​42, 82–​91, John Finnis, Natural

Law and Natural Rights (2nd ed., OUP 2011) 320–​30.

3 See too Leslie Green, “Introduction” in Hart (n 2) xxx: “Sanctions are the law’s Plan B.”
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 Duties and Damages 3

if I do not perform—​but that I owe no duty (as the law understands it) at all.
True, a court will order me to pay damages if I do not perform. But so what? If
I have the option of breaking my contract, do I not also have the option of not
paying?4 Of course, the law says I must pay, but then it also said I must perform.
If I do not pay, the court will order my employer to deduct the sum I owe from
my wages or authorize a bailiff to seize and sell such of my assets as needed to
generate that sum. But as all this happens, I just stand by. In this race to the
bottom, duty is redundant, the only reality to law is the brute application of
state power.

II. Actionability, Enforceability

So Holmes’ account tells us nothing at all about legal duties. Now, the un-
derstanding of, for instance, contractual duties attributed to Holmes—​that
my duty is not to perform but only to pay damages—​may yet be true. But if
it is true, it is not by virtue of the sanctions attached to those who do not per-
form. Rather we need to look to what the law tells me I must do: does it tell me
that I must do as I undertook (with damages then payable as the sanction for
breach) or does it tell me that I am at liberty not to, so long as I compensate
you for any losses I thereby cause? This is a distinction we just cannot see if we
look only to sanctions. In answering this question, it is significant that the law,
through the language and reasoning of legal officials and the broader structure
of legal doctrine, presents performance of one’s contractual undertakings not
as an option but as a duty, with failure to perform a breach of duty and damages
its remedy.
Still, one might ask, if it is true that the law sees performance of contrac-
tual undertakings as not optional but obligatory, why is it so rarely prepared
to take action to see that this happens? No doubt, there is often nothing that
can now be done to secure performance. A court cannot compel timely perfor-
mance when it is already late, some defects and harms cannot be undone. But
even when performance remains possible and desired by the recipient, courts
will typically limit a claimant to damages. Does this not undermine the sugges-
tion that the law does indeed recognize a duty to perform? No, or at least not
without more. The message “you must φ, but we won’t make you” is not equiv-
ocal. On the question of whether φ-​ing is obligatory or optional, it is clear: it
is obligatory. Nonetheless, while rejecting Holmes’ view that our legal duties

4 See too Finnis (n 2) 324.

4 Charlie Webb

are to be found in the sanctions the law attaches to us, we might yet think that
these duties and sanctions should, where possible, match up. If the law’s posi-
tion is that I must φ, then it should, at least all else equal, follow that through by
taking what action it can to see that I φ. So, for many, the law’s failure to back
up its duties with corresponding sanctions involves if not a contradiction then
a sort of inconsistency: the law saying one thing and doing another. And, on
this basis, we can see how the law’s failure to compel performance of its duties
might be thought to call into question whether it really means what it says.
This view is not wholly wrong but it is too quick. To see why we need to
recognize that our duties and the sanctions which attach to their breach an-
swer different questions. What I should do (or what the law should tell me that
I should do) is not the same question as what a court should compel me to do
and we should not think that these different questions should receive the same
answer. So for contracting parties the question is “must I do as I promised?”
For judges charged with resolving claims for breach of contract, however, the
question is “should I, as a state official and backed by its coercive machinery,
now compel that defendant to perform?” There will sometimes be good reason
for the state to tell us to do things which it would be unreasonable for it to
compel us to do, and so it may be reasonable for the law to tell us we must
perform our contracts even where it would not be reasonable to enforce that
duty by compelling performance.5 To put the point the other way around: that
it would, for example, be oppressive and costly to compel me to perform my
employment contract are not reasons for the law to tell me that turning up for
work is optional.
It is a mistake to think that our legal duties extend only so far as what the
law compels. But, as we can now see, it is no less a mistake to think that the law
should compel us to do whatever it says is our legal duty. Often, by the time the
opportunity for the law to apply a sanction arises, circumstances have changed
and performance of the original duty is not possible or, though possible, it may
no longer be desirable or indeed reasonable. And where the defendant’s perfor-
mance of that duty remains possible and reasonable, it may yet be unreason-
able for the law to compel that performance. Indeed there are occasions where
the proper response for the law to a breach of duty is to take no action whatso-
ever. Some breaches of duty are inconsequential. In such cases, there may be
no need for the law to intervene, nothing for it to do if it did. The common law

5 See too Stephen A. Smith, “The Law of Damages: Rules for Citizens or Rules for Courts?” in Ralph

Cunnington and Djakhongir Saidov (eds.), Contract Damages: Domestic and International Perspectives
(Hart Publishing 2008).
 Duties and Damages 5

sometimes resists this conclusion, preferring to allow a claim but to award only
nominal damages, thereby giving some token expression to the wrong that has
been done. But it is not the award of nominal damages which makes the con-
duct wrongful and where the law holds wrongs to be actionable only on proof
of loss or some other consequence, it is not thereby saying that there was no
wrong, no breach of duty unless loss results. Just as there is nothing contra-
dictory or equivocal in the law saying “you must φ, but we won’t make you,”
so there need be nothing contradictory, equivocal, or even inconsistent in it
saying “you were wrong (i.e. in breach of duty) not to φ, but no action now lies
against you.”
A good example of courts saying just this comes in cases of harmless neg-
ligence. The tort of negligence imposes duties of care, duties breached where
reasonable care is not taken. Unless, however, the breach of duty leads to rec-
ognized injury, no claim arises. This rule of actionability is taken by some to
reflect back on the content of the duty: the fact that liability arises only if and
when injury occurs shows my duty is not to take care; rather it is a duty not
to injure carelessly—​a duty of non-​injury rather than non-​injuriousness—​
breached only if and when my carelessness results in your injury.6 But there
is, to repeat, no reason at all to think that the fact the law provides no claim
suggests, let alone entails, that there was in truth no breach of duty. Indeed the
law’s position here—​that there has been a breach of duty, but no claim lies—​is
not only clear but readily explicable. There is good reason for the law to tell me
to take care when, say, driving: it is bad if people get hurt, driving is dangerous,
I am more likely to hurt someone if I do not take care. Now, sometimes my
careless driving will do harm, sometimes it will not. If it does, besides any pen-
alty I may face, it is right that the law should provide my victim with a means
of obtaining compensation from me. But what if no harm results? While it may
still be reasonable to penalize me, there is no harm to undo or loss to make
good. The law reasonably concludes, therefore, that no claim lies: my careless
driving cannot itself be undone, there are no consequences to that carelessness
which the law might demand I correct or offset.

6 See, e.g., Donal Nolan, “Deconstructing the Duty of Care” (2013) 129 LQR 559, 561–​ 62;
James Plunkett, The Duty of Care in Negligence (Hart Publishing 2018) 94–​95; cf. John Gardner,
“Obligations and Outcomes in the Law of Torts” in Peter Cane and John Gardner (eds.), Relating to
Responsibility: Essays in Honour of Tony Honoré on his 80th Birthday (Hart Publishing 2001) 122;
Arthur Ripstein and Benjamin C. Zipursky, “Corrective Justice in an Age of Mass Torts” in Gerald J.
Postema (ed.), Philosophy and the Law of Torts (CUP 2001) 218–​21; John C. P. Goldberg and Benjamin
C. Zipursky, “Unrealized Torts” (2002) 88 Virginia LR 1625, 1652; Robert Stevens, “Rights and Other
Things” in Donal Nolan and Andrew Robertson (eds.), Rights and Private Law (Hart Publishing
2011) 118.
6 Charlie Webb

The argument that duties of care are duties of non-​injury sometimes chan-
nels a deeper misunderstanding. Thus far I have talked about breaches of duty
without further qualification. But, as some are keen to stress, the duties private
law deals in are specifically relational duties. My duties not to stamp on your
toes or to trespass on your land are duties I owe to you. Accordingly, if I do
these things, I do not just commit a wrong; I wrong you. These duties I owe to
you correspond to rights you have against me and my breach of such a duty is
simultaneously a violation of your rights. This may appear to tell against the
view that duties of care are duties of non-​injuriousness. For, so the argument
goes, while there is no doubt a violation of your rights when my carelessness
injures you, what right of yours is violated when I merely put you at risk? Do
we have, in addition to our rights to our person and our property, a right not
to be subjected to unreasonable risks? And, if we do, must we also then say
that, when my carelessness does cause you injury, I commit not one wrong but
two: one when I expose you to the risk of injury, another when that risk materi-
alizes? This looks a lot like double counting.
The trouble here comes from an indiscriminate use of the language of rights.7
Sometimes rights describe a sort of practical conclusion, identifying how
others must act in their dealings with us. It is when understood in this way that
rights correlate with and are equivalent to duties.8 Our contract puts me under
a duty to you to hand over the shoes and this duty corresponds to a right you
have that I hand them over. “I owe you a duty to φ” and “you have a right that
I φ” are just different ways of saying the same thing. Accordingly, if I owe you
a duty of care when driving, you necessarily have a right that I drive carefully.
The right does not help us make the case for or against me owing that duty; it
just gives us an alternative way of asking the question and expressing our con-
clusion. At other times, however, we see rights used to capture a different idea.
Here rights do not provide an alternative expression of the duties we owe each
other, rather they identify a reason we might owe these duties, telling us not,
or not just, what duties we owe but why we owe them. So, on one popular view,
for you to have a right is for some aspect of your well-​being, some interest of
yours, to be sufficiently important that its protection or advancement justifies
imposing duties on others.9 Call these respectively rights1 and rights2.
We can see why some doubt that we have rights2 not to be subjected to un-
reasonable risks. Someone who simply endangers me does not appear to set

7
See further Charlie Webb, “Three Concepts of Rights, Two of Property” (2018) 38 OJLS 246.
8
See, e.g., Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning
(Walter Wheeler Cook (ed.), YUP 1919) 39.
9 See, e.g., Joseph Raz, The Morality of Freedom (OUP 1986) 180.
 Duties and Damages 7

back any interest of mine, does not compromise my well-​being. Risk matters
only because harm matters, an unrealized risk is a harm to no-​one. If this is
correct, we cannot justify duties of care on the basis that we have rights2 not
to be subjected to unreasonable risks.10 But the truth is that they do not need
this justification. For your interest in, and so your right2 to, your bodily safety
is more than enough to justify the conclusion that I must avoid acting in ways
which unjustifiably threaten to injure you. Moreover, this duty to take care is a
duty I owe to you, whatever view we take on what this means: the duty serves
and is grounded in your interests; it is one you are empowered to waive or,
where possible, enforce. Accordingly, the duty I owe you to take care, say when
driving, corresponds to a right1 of yours that I drive carefully. In short, you
do not need to have a right2 not to be exposed to unreasonable risks to have
a right1 that I not expose you to unreasonable risks (e.g., when driving); your
right2 to your bodily safety is itself sufficient to ground this right1 and my cor-
responding duty of care.
As this brings out, we need to take care when thinking about the law of torts,
and private law more generally, in terms of rights. Take the following three
propositions:

1. The duties recognized in the law of torts are enforced by claimants

bringing private actions, seeking private remedies, against defaulting
defendants.
2. These private duties and rights of action advance or protect important
interests of these claimants.
3. There can be no breach of such a duty, no such wrong, unless and until
some interest of the claimant’s is affected or set back.

These three propositions are not equivalent, nor do they follow from one an-
other. 1 can be true without 2 or 3 also being true. 1 and 2 can, as we have seen,
be true without 3. But framing them each in terms of “rights” invites their eli-
sion or at least suggests, wrongly, that they come as a package deal: torts are
breaches of duties owed to others, as is evident from the basic form of tort
litigation, therefore torts are rights-​violations (since a breach of duty just is
the violation of a right), therefore there can be no tort unless and until some
right of the claimant’s is violated and injury is caused. The consequence is that
“rights-​based” accounts of private law often move far too quickly from accurate

10 Is it correct? For an argument that it is not, see John Oberdiek, Imposing Risk: A Normative

Framework (OUP 2017) 93–​130.

8 Charlie Webb

observation of the form and structure of private law actions to claims about
private law’s proper content. The truth, I think, is that the basic form of pri-
vate law litigation places few, if any, constraints on the sorts of reasons (princi-
ples, policies) which might bear on the range of practical questions private law
addresses and so on the content of the duties private law recognizes.11

III. Performance Damages

We have seen that for me to owe a legal duty to φ entails neither than the law
will take further action to see that I φ nor that it should. The conclusion that
I was in breach of duty is a determination of how I should have conducted
myself at some earlier point in time. But the central practical question for a
court charged with resolving a claim founded on that breach of duty is not what
I should have done then but what it should do now. These questions may re-
ceive different answers either because circumstances have now changed, so
that what was reasonable to expect of me then is not reasonable now, or be-
cause there are considerations which bear on the reasonableness of the court
compelling me to φ which do not bear, or bear differently, on the reasonable-
ness of me φ-​ing.
Sometimes it is too late to see that I φ as φ-​ing is no longer possible. Here,
necessarily, any action the law takes must be directed toward achieving some
other result. Even if it remains possible for me to φ, it may be that the passage
of time and the changed circumstances in which we now find ourselves mean
that the balance of reasons no longer supports this and so the law should not
take action to see that I φ, even if it could do so cost-​free. Say we contract for
me to give you a lift to the airport tomorrow. You have a flight to catch, taking
you to a friend’s wedding overseas. (I may know this, I may not.) I don’t show
up. Should a court order me to take you to the airport at the next available op-
portunity? You have missed your flight and missed the wedding, you have no
interest in going to the airport for any other reason. Whether this is because
the reasons that supported my initial obligation to take you to the airport no
longer apply or because other reasons—​you no longer want that performance,
indeed you would now be an unwilling party to its performance—​override

11 For a fuller argument to a similar conclusion, see John Gardner, “Backwards and Forwards with

Tort Law” in Joseph Keim-​Campbell, Michael O’Rourke, and David Shier (eds.), Law and Social Justice
(MIT Press 2005).
 Duties and Damages 9

those reasons, the upshot is that it would be unreasonable now for a court to
order me to do this.
Even where it remains possible for me to φ and unreasonable for me not to,
the law may still reasonably decline to take action to see that I do on account
of the costs of taking such action. Here we see the standard reasons the courts
give for refusing specific relief: compelling performance would be too great an
infringement of the defendant’s liberty, would be too costly to police, would
invite further acrimony and litigation, and so on. In such instances, the courts
are not saying that it is reasonable for me not to perform, only that it would be
unreasonable for them to take further action to see that I provide that perfor-
mance. On occasion, the denial of specific relief may be based on a blend of
both sorts of consideration. I covenant with you not to build on the vacant plot
of land I own adjoining yours. Nonetheless I do. By the time the case comes to
court, the work is already complete; an apartment block sits on the once-​vacant
plot. It is not too late to return the land to its prior undeveloped state, the block
could be demolished, performance of the covenant could, to this extent, still be
secured. But doing this would mean the destruction of good housing at a time
when housing is in short supply. The fact that I cannot now perform my cov-
enant without significant social cost is a consideration which rightly bears on
whether such performance should now be considered obligatory, even reason-
able. (Some influential accounts of private law disagree. Their wilful blindness
to the relevance of such considerations testifies to their inadequacy.) And, even
if these costs are not sufficient to defeat any obligation to return my land to its
prior state, such that this remains, all considered, what I really ought to do, we
might still conclude that it would be unreasonable for a court now to take ac-
tion to secure this, intervening to order that these homes be destroyed.12
Nonetheless, when it comes to deciding how the law should respond to
breaches of duty, the law’s determination that, on the balance of reasons at the
time, I was under a duty to φ counts for something. Though what I should do
will sometimes change by the time the law has the chance to respond, often it
will not. The reasons which make it unreasonable for me to play my music loud
late into the night do not diminish if I have now been doing this for weeks. It
is unreasonable to drive my car onto your foot and it remains just as unrea-
sonable to keep it there once I have. And while there are always costs involved
in the law intervening, there are also benefits to be had, not just in securing
my conformity with my duties but also in encouraging others’ conformity with
theirs. So, it is not surprising that, where the costs of compelling performance

12 Cf. Wrotham Park Estate Co. Ltd. v. Parkside Homes Ltd. [1974] 1 WLR 798 (Ch.).
10 Charlie Webb

are low, and certainly no higher than any other meaningful remedy, the courts
will tend to do so. We see this in their routine enforcement of duties to pay
money, which do not raise the same concerns about supervision and forced
labor which attend many other forms of specific relief.
It may be that the law is sometimes too cautious here, too ready to cede to
worries about the costs of compelling performance, too slow to see its benefits.
The common law’s default approach outside duties to pay money is to consider
specific relief only where damages would be inadequate, rather than to look
beyond specific relief only where it would be too costly. Much depends on how
good a substitute for specific relief damages provide. As typically formulated,
the standard aim of damages is to put the claimant in as good a position as she
would have occupied but for the breach. But this formulation is ambiguous.13
One way to put a claimant in a position as good as had there been no breach
is through compensation. Even if the specific injuries and disadvantages the
claimant has incurred cannot or will not be reversed, they may yet be offset or
counterbalanced by providing the claimant with alternative benefits—​benefits
distinct from and additional to those which the defendant’s performance of
her duty would have secured—​which advance her interests, considered in the
round, to the equivalent extent as the defendant’s breach set them back. (This
assumes the possibility of a sort of netting of our diverse interests.) So the pain
and suffering my breach caused you cannot be undone, the assets I damaged
cannot be repaired or replaced, but by paying you damages I provide you with
funds which then enable you to purchase other items you value, satisfying
other interests of yours. The upshot is that by adding such advantages to the
disadvantages caused by the breach, you can be placed in a position which,
though different, is no worse than the position you would have been in had
I performed my duty.
But there is another, and in some ways more straightforward, way of put-
ting the claimant in as good a position as she would have occupied but for the
breach: namely to ensure that she obtains the very advantages which the defen-
dant’s performance of her duty would have given her. This is, of course, the
effect of granting specific relief: my duty is to hand over the shoes and an order
of specific performance sees that you get those shoes from me. But much the

13 See further Charlie Webb, “Justifying Damages” in Jason W. Neyers, Richard Bronaugh, and

Stephen G. A. Pitel (eds.), Exploring Contract Law (Hart Publishing 2009). The distinction, drawn
there and here, between different ways a claimant can be put in as good a position as had the de-
fendant performed her duty largely mirrors the distinction identified in Adam Slavny, “Negating and
Counterbalancing: A Fundamental Distinction in the Concept of a Corrective Duty” (2014) 33 Law and
Philosophy 143, though see n 32 and surrounding text for discussion of examples where negation of the
claimant’s harms is possible though performance of the defendant’s primary duty is not.
 Duties and Damages 11

same result can also, on occasion, be achieved through an award of damages.

You contract to buy 1,000 widgets from me. The widgets I supply are defective.
You sue. The remedy you will be awarded is damages assessed at the difference
in market value between the widgets I supplied and those you contracted for.
These damages may appear straightforwardly compensatory. I have not sup-
plied you with the promised widgets, so the law orders me to pay you a sum of
money which can apply to acquire other benefits which will offset the losses
this has caused you. But the award can also be viewed in a different light. You
still want the correct widgets. You can still get them by going back into the
market and buying some from another supplier. The damages award is pre-
mised on you doing just this.14 If you sell the defective widgets I supplied, you
get some of the money you need to buy replacements; the damages ensure that
the additional money you have to provide to make up the difference is recov-
ered from me. In so doing the award covers the expenses you incurred as a
result of my breach. But, more than that, it sees that, at the end of the day, you
obtain—​or would have obtained had you taken the steps the law expected you
to take—​the (or such) widgets as I undertook to supply and that it is me who
funds this. The end result is not simply that I compensate you for the losses you
suffer as a result of my breach, but that I supply you with some part of the per-
formance you were, and remain, due.
Here these two functions of damages awards run together: an award aimed
at compensating you for your losses, quantified by reference to the difference
in value between the widgets you contracted for and those I in fact provided,
also enables you to obtain the widgets you wanted from another source. But
we get a clearer sense of the true distinctiveness and significance of damages
aimed at securing partial performance where the two come apart. I contract
to install a new kitchen in your home. You go away while I do the work. When
you return you see that the units I have installed are not the color you had asked
for. The cost of removing these units and putting in the right ones is substan-
tial. The difference in market value between the two sets of units may well be
nothing, however, and, while you have a preference for the color you chose,
the difference in value to you—​as reflected in how much less you would have
paid for units I in fact installed—​falls well short of the sum it would take to
replace them.
My breach here, though it leaves you no poorer in balance-​sheet terms,
does indeed put you in a worse position than had I performed, your interest in

14 This aspect of these awards is brought out in Andrew Dyson and Adam Kramer, “There is No

‘Breach Date Rule’: Mitigation, Difference in Value and Date of Assessment” (2014) 130 LQR 259.
12 Charlie Webb

having a kitchen which meets your esthetic preferences set back. But to com-
pensate you for this loss, we need only to provide you with a sum of money
which reflects this difference in the value you place on the kitchen as promised
compared to the kitchen as delivered, a sum which then allows you to pur-
chase other benefits, advancing other interests of yours, sufficient to offset the
setback I have caused. Such an award would see that you are left in no worse/​
as good a position as had I performed. What it would not do is to provide you
with the kitchen you contracted for. This end result remains possible, how-
ever, and, if the court is not prepared to compel me to do this work myself, it
could still see that I put you in the position to get the kitchen you wanted by
funding someone else to come in and complete the job. This is what a cost of
cure damages award would achieve.
It is, therefore, a mistake to see cost of cure as, or as simply, one possible
measure of or formula for calculating a claimant’s losses and hence the com-
pensation she is due. True, the award of cost of cure damages is premised not
only on the claimant’s continuing right to the defendant’s performance but also
on this money then being used to secure that performance. The effect of the
award is therefore to cover the out-​of-​pocket expenses which the claimant has
incurred or is expected to incur. But to see such awards as compensation for
these expenses sets us off on the wrong foot. We can see this from the English
cases.15 Cost of cure damages are awarded only where the court concludes that
this is the true measure of the losses suffered by the claimant.16 This will be
the case where the cost of cure is equal to or lower than the difference in value
between the performance promised and the defective performance in fact pro-
vided. Where, however, the cost of cure exceeds the difference in value, it will
be seen as the proper measure of the claimant’s losses only where the court
considers that it would be reasonable for the claimant to incur such costs. This
is effectively an application of the mitigation principle: claimants are expected
to take reasonable steps to mitigate their losses; if they do not, their damages
will not extend to the losses they would have avoided if they had. By the same
token, when determining whether a claimant who has yet to get the defective
performance put right should recover as damages the sum it would take for
her to do so, the court must consider whether incurring such costs would be
reasonable. Accordingly, cost of cure damages will be refused where the court

15 For a fuller version of the argument made in this section and further analysis of these cases, see

Charlie Webb, “Performance Damages” in Graham Virgo and Sarah Worthington (eds.), Commercial
Remedies: Resolving Controversies (CUP 2017).
16 Ruxley Electronics and Construction Ltd. v. Forsyth [1996] AC 344 (HL).
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The Project Gutenberg eBook of Scott Burton
and the Timber Thieves
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Title: Scott Burton and the Timber Thieves

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*** START OF THE PROJECT GUTENBERG EBOOK SCOTT BURTON

AND THE TIMBER THIEVES ***
SCOTT BURTON AND THE TIMBER THIEVES
“WE’VE GOT TO GET ’EM, I TELL YOU.”
SCOTT BURTON AND THE TIMBER THIEVES
BY

E. G. CHEYNEY

AUTHOR OF “SCOTT BURTON, FORESTER,”

“SCOTT BURTON ON THE RANGE,” ETC.

D. APPLETON AND COMPANY

NEW YORK :: 1922 :: LONDON
 COPYRIGHT, 1922, BY
D. APPLETON AND COMPANY

PRINTED IN THE UNITED STATES OF AMERICA

SCOTT BURTON AND THE TIMBER THIEVES
 CHAPTER I

Scott Burton sat on the porch of the little cabin on the edge of the
forest and looked absently out across the wide beach at the restless
waters of the Gulf of Mexico. No one ever would have guessed from
his expression now how crazy he had been to see that gulf only the
day before. He apparently did not see the water at all. The big
waves boomed on the beach unheard and even the little oyster
schooner, which glided across the picture on its way to port, failed to
catch his attention. He had sat motionless for so long that a great
big fox-squirrel, afraid but drawn on irresistibly by his curiosity, had
crept nervously up within a few feet of him.
Suddenly Scott shook his head to rid himself of a bothersome fly
and the frightened chatter of the squirrel as it whisked behind the
nearest tree broke the spell. He gave the intruder a quick glance and
turned his attention once more to the open letter which he held in
his hand. He had read that letter dozens of times, in fact he knew
every word on the typewritten page by heart, but he read it again
now in the hope of finding some additional meaning between the
lines.

“Washington, D. C.
“September 3, 1913.

“Mr. Scott Burton,

“Okalatchee, Fla.

“Dear Mr. Burton:

 “Your remarkable work in cleaning up the trouble with the
sheepmen on the Cormorant Forest last summer has led us
to select you for some special work of a rather delicate
character on the Okalatchee. There have been some timber
thieves at work on that forest for some time, and so far our
officers have been unable to catch them or effectually put a
stop to their work. It will be your particular duty to see that
these thefts are stopped and the trespassers brought to
justice.
“In order that you may have ample authority, you have been
appointed deputy supervisor under Mr. Graham and will be
given every possible assistance.
“You will report directly to this office.
“Very truly yours,

“Martin Spear,
“Chief of Personnel.”

No, he could not see any more in it, and yet it seemed mighty
little to tell a man who had been looking forward to that letter for a
week and had traveled two thousand miles to get it. He turned the
paper over thoughtfully as though he hoped to find some further
instructions on the back of it, and then proceeded to review once
more the whole situation.
He had been fortunate enough to earn considerable distinction in
Arizona, where he had been working as a patrolman, by clearing out
a gang of grafters who had been running sheep on the Forest
without a permit. This achievement had won for him the chance of
an appointment as a ranger, but he had asked for the opportunity to
obtain a little more experience as a patrolman before taking up a
more responsible position. His request had been granted and he had
spent the summer very profitably on the district he had cleaned up
so creditably in the spring.
 Suddenly, without the slightest warning, he had received a
telegram from the Washington office.

“Report Okalatchee, Fla., at once. You will find instructions

there.”

He had become attached to the Southwest and had looked

forward contentedly to a permanent location there, but he was
possessed of even more than the usual young man’s love of travel,
and Florida had always been a country of his dreams, a country of
fairy tales that he had hardly even dared hope to see. The sudden
realization that he was actually going there had driven everything
else from his mind, and an hour after he had received the message
he was in the saddle on his way to town.
It was only when he was on the train speeding across the vast
expanse of Texas, with plenty of opportunity to think, that he had
begun to burn with a consuming curiosity to know what his
instructions would be. The longer he had traveled the higher his air
castles had grown and the more anxious he had become to see
those instructions. By the time he had reached New Orleans he was
in such a hurry that he could hardly enjoy his ten-hour wait there,
though it was the first southern city he had ever been in and a place
which he had always longed to see.
The sight of the tall palmetto palms and the moss-covered live
oaks drove his imagination to even more fantastic efforts, and finally
arrived in Okalatchee he had almost run directly from the train to the
postoffice to get those precious instructions. And this letter was all
that he had found. He had found that the supervisor’s headquarters
were five miles away through the pine woods and the telephone
gave him no answer. He had hired an old negro to drive him over.
There was no one there, but the door was not locked and he had
decided to stay there till some one came. He was not much better
off than before he had obtained the letter.
“Well,” Scott thought, “there is nothing to do but wait till the
supervisor turns up,” and he proceeded to investigate his new
surroundings.
The little three-room cabin, built of rough lumber with battens
over the cracks, was exactly like numbers of other ranger cabins he
had seen, but its location had been selected with more than the
usual attention to beauty and comfort. It nestled just within the
edge of a very dense stand of tall, longleaf pines and the little front
yard ran out to meet the broad sand beach. Flowerbeds of hibiscus
and groups of oleanders lined the walk of crushed oyster shells, and
plants with which Scott was entirely unfamiliar were scattered
around in great profusion on either side of the cabin. It seemed to
Scott as though a woman must have planned it all, for he could not
imagine a man taking so much pains with the decoration of his
home. He found himself thinking that it was no wonder this fellow
had not caught the timber thieves.
Just to the west of the cabin a little creek bordered with titi and
sweet jasmine wandered slowly out to meet the blue waters of the
Gulf. It could not always have flowed as slowly as it did now, for
some time in the past it had built quite a little delta which extended
out in the form of a miniature cape, and was covered with a grove of
tall, stately palmettos. Far out from the shore a long line of low-lying
sand islands broke the horizon. It was certainly an ideal spot.
The interior of the cabin was quite as tastily equipped as the
exterior, and the cupboard seemed to be stocked for a long siege.
There was nothing lacking even to the luxuries. Scott smiled as he
thought of his own bare little shack high up in the southern Rockies
with the round bullet hole in the windowpane.
“I don’t care if that sissy supervisor does not show up for a week,”
Scott grunted contentedly as he settled down in a comfortable
steamer chair on the porch. No one could have asked for a better
place to wait. But Scott was not much given to idle comfort,
especially when his curiosity was aroused, and it usually was
aroused about something. Just now he was almost wild to know
something more of this new problem which he had been given to
solve. He watched a little flock of sandpipers run along the smooth
beach a way, following the very edge of a wave, but long before
they had turned the point of the little palmetto cape he jumped
restlessly from the chair and went into the cabin to study a map
which he had noticed hanging on the wall.
It was a detailed map, showing the irregular boundary of
Okalatchee forest and the different types of timber. It was a great
sprawling tract of a million acres extending along the gulf to the
river on the west, to the farm lands on the east, and north to the big
swamp. It was covered with unfamiliar terms he had seen in books,
but which had never seemed real to him before. He had always read
them before as he would read the names in a fairy tale, and here he
was in the very midst of them: pine ridge and cypress swamp,
hardwood bottom and gum slough, low hammock and baygall, high
hammock and cane break, turpentine orchards and stills.
He marveled at the great number of ridges shown in that flat
country, and the many long, stringlike swamps which paralleled the
river and the coast. And he wondered where in all that maze of
unknown country the timber thieves whom he was supposed to
catch were working. He noted several ranger stations shown on the
map and wondered whether any of them were connected with the
mystery as had been the case in the sheep business in the West, or
whether there were really any thieves at all. He remembered reading
a story in which men had been convicted on circumstantial evidence
of stealing a raft of logs, and it was not till they had served a month
in jail that the raft had been found in the bottom of the pond where
it had been tied.
If only the supervisor, or any one else who could tell him anything
about it, would come. He had not liked the “gum-shoe” game as he
had called it when he had been obliged to try his hand at it in the
West, but he found himself eager to get at it here because other
men had tried it and failed. It seemed to him like a challenge and he
was eager to accept it.
He pored over the map, studying the lay of the land and letting his
imagination run wild. He had caught those thieves in forty different
ways in at least a dozen different parts of the map when the failing
light warned him that it was time to get supper and prepare for the
night.
He had no instructions or invitation to make use of that cabin or
the supplies in it, but there is a certain freemasonry among the men
of the woods which was invitation enough for him. He had no
hesitation in spreading his blankets on one of the beds and
ransacking the cupboard for his supper. There was plenty to choose
from and the wood was laid in the stove ready for the match. In half
an hour he was sitting down to his lonely meal.
But it was not destined to be a lonely meal. Scott had hardly
finished what he probably would have called his “first course,” when
he heard a light step on the shell walk, a thud or two on the porch,
and a man loomed big in the doorway.
 CHAPTER II

Scott’s first impression was that this was the biggest man he had
ever seen. He almost filled the doorway and the crown of his Stetson
brushed the frame. His keen eye took in the interior of the cabin in
one swift glance as he entered and then focused steadily on Scott,
who had risen smiling to greet him.
“Mr. Burton, I presume?” he said, smiling pleasantly and extending
a cordial hand. “My name is Graham. Glad to see you.”
“I am afraid that I am trespassing on your property, your
provisions and your good nature,” Scott explained, “but I did not
know what else to do.”
“Wasn’t anything else to do,” Mr. Graham said as he hung his hat
carefully on a nail. “If you have just cooked supper enough for three
I shall not say a word.”
Scott involuntarily glanced toward the door.
Mr. Graham noticed the look. “Oh, there isn’t anybody with me,”
he laughed, “that’s just the way I feel. Had lunch with a cracker to-
day. Maybe you don’t know what that means yet, but you soon will.”
“Well, I wasn’t expecting two men to supper,” Scott laughed, “but
I think there is plenty for all three of us.”
Scott started to get another cup and plate, but Mr. Graham had
already gotten them for himself and took the seat opposite. He had
never seen a man who looked more like his ideal of a woodsman, or
one whom he had liked better at first sight. They had not been
together five minutes and yet Scott felt as though he had known this
big man for months.
 “I had word from Washington that you would be down here,” Mr.
Graham explained, “but I did not know just when you would come. I
had a trip to make and thought I would get it in before you arrived.
Found out at the postoffice that you had beaten me to it. What do
you think of my hang-out here?”
“It’s a wonder!” Scott exclaimed enthusiastically. “I was just
thinking before you came that I would not mind waiting here for you
for a week or two.”
Mr. Graham was evidently pleased with his enthusiasm. “Don’t
blame you, I feel pretty much that way myself. I ran on to it by
chance one time and it took my fancy so that I decided to fix it up
for my summer headquarters. I like it so well now that I stay here
nearly all the time.”
“You fixed it up?” Scott exclaimed incredulously.
“Sure,” the big fellow grinned, immediately divining his thoughts.
“Thought some woman did it, did you?”
Scott admitted it rather sheepishly.
“Yes,” Mr. Graham confessed, “I am somewhat of a lady myself
when it comes to a love of flowers and beauty. I dawdle around out
there in the yard a good share of my spare time. Not many ‘movies’
around here to distract a fellow’s attention.”
And so they talked till the meal was finished, the dishes washed,
and the dishrag hung on its proper nail; for Mr. Graham was as
orderly in the house as he was in the yard. Then they settled down
in the steamer chairs on the porch and gazed in silence for a few
minutes at the line of islands shimmering in the moonlit bay. It was
like a scene from a fairy tale.
Mr. Graham broke the spell with a sigh. “I could look at a thing like
that all night, but I suppose you are burning up to know something
of this peculiar job to which they have assigned you.”
Scott admitted that he was rather curious.
“Well, I’ll try to tell you the whole story. The trouble started about
two years ago. The Quiller Lumber Company had bought a big
bunch of pine and cypress timber up near the edge of the big
swamp. They are a small concern and do not have a very large crew.
Of course, that means slow work and easy checking for us. Their
slowness came to be a standing joke with the ranger up there who
looks after the scaling. He used to say in his diary every now and
then, ‘Quiller got down another tree to-day.’
“They had been at it about six months when the foreman came
down to see me. ‘Have you noticed anything peculiar about our
scale?’ he asked. ‘Noticed there has not been much to scale,’ I told
him. ‘That’s just it,’ he said, ‘checked up on the stumps any?’ I
explained to him that we seldom did that till a considerable quantity
had been cut.
“‘Well, I have,’ he said, ‘and more than half of the stuff we have
cut ain’t there.’
“He went on to tell me that he had had a night watchman on the
boom for two weeks and tried in every way to check the thing up,
but the logs kept disappearing just the same. A lot of his niggers got
superstitious about it and quit the job.”
“How do they handle their logs?” Scott asked.
“Skid them down to the edge of the big swamp on high wheels
and shove them into a bag boom. Then they raft them and float
them out into the river.”
“Do they keep them in the boom long?” Scott was thinking again
of the story of the sunken logs.
“Oh, they are not in the bottom of the swamp if that is what you
are driving at. Murphy has prodded the bottom of that pond with a
pike pole a dozen times.”
“Is there a channel through to the river or can they take them out
anywhere?”
“I’ve hunted all over there myself and I cannot find a place where
they could take them out except through that one channel.”
“I suppose you have had that channel watched?”
 “Watched, I had Murphy hidden up there on a point of land for a
month and the logs disappeared out of the boom right along just the
same.”
“Are you sure that Murphy is all right?”
“Murphy, why, he thinks more of the Service than the Secretary of
Agriculture does. No, sir, it is not graft, I am sure of that; but I
would give a good deal to know what it is.”
“Do they disappear before or after you scale them?”
“Did go both before and after. We scale them all in the woods now
before they put them in the boom, but they are going out of the
boom just the same.”
There was a long pause while both men frowned unseeing across
the beautiful lagoon. Scott was thinking of the ranger who had been
the leader of the sheep gang in the West and wondering how he
could best get a check on Murphy. Mr. Graham had long ago gotten
past the point where he could think about it logically at all.
“Has the thing been going on ever since?” Scott asked.
“For two solid years,” Mr. Graham answered peevishly. “I have put
about half my time on the pesky thing and Murphy hangs around
there like a baited bulldog. The foreman is almost crazy about it. He
has all but accused the ‘’gators’ of eating the logs.”
“I suppose they take some rafts out occasionally?”
“Sure. They have been taking them out right along. Have speeded
up considerably during the past year.”
“Ever check up the delivery of those logs?”
“Many a time, and so has the company. Check to the dot with the
scale in the rafts.”
“If you are scaling in the woods you are getting paid for all they
cut, aren’t you?”
“Yes, the company is paying all right. They howl and checkscale a
lot, but they pay.”
“Then why is the Service interested in it? They are not losing
anything by it.”
 “No, they are not losing anything on this scale, but it is hurting our
other sales and giving the forest a bad name. We do not like to have
a thing like that going on under our very noses. Besides, it gets on a
fellow’s nerves. I tried my best on it. Hated to give it up, but had to
confess myself licked at last. Then I asked the office for help and
you are the result.”
“Some result,” Scott grunted. “I am not a professional detective. I
just stumbled on to that sheep graft out there by chance, and now
look what it’s gotten me into. I had never been to Florida and was
glad enough to come down, but there is a fat chance of my solving
this mess. It looks about as clear as mud.”
“That’s about the way it looks to me,” Mr. Graham nodded, “about
as clear as mud. But all of us here are hypnotized now. We have
been mooning over the thing so long that we cannot see straight
any more. We may be walking all over some clue which will be
perfectly clear to a stranger with an unfogged mind. Don’t give up
before you start, man.”
“I’m not giving up,” Scott exclaimed, “far from it. Now that I have
come all the way down here I simply have to put the job through,
but I’m going to steer clear of these detective jobs in the future.
They are too uncertain. Too much depends on luck.”
“Well, here’s wishing you luck,” said Mr. Graham, rising; “we’ll give
you all the help we can, and grunt for you. Let’s go to bed, and to-
morrow we’ll ride out and have a look at the arena.” He paused for a
moment at the porch railing. “Isn’t that fine? You can just imagine
old Ponce de Léon threading his way along that beach looking for
the Fountain of Youth four hundred years ago, and I’ll bet he
stopped and sampled that very creek.”
This historical touch gave the country a new interest to Scott.
 CHAPTER III

Scott and Mr. Graham had an early breakfast together.

“I suppose there is no use in asking a man from the West if he
rides?” Mr. Graham laughed.
“Not much,” Scott replied. “If a man lives in that country he has to
ride. It almost broke my heart to leave my saddle horse behind, but
the ‘super’ there seemed to think that I would be transferred West
again and would not be here long enough to make it worth while to
ship him East.”
“Humph,” Mr. Graham growled, “judging from my own experience
you will be grayheaded before you catch those thieves. Well, I have
two ponies here and you can use one of them. He’s not the best in
the world, but I guess he’ll do.”
Scott was glad to find the western stock saddle in use here
instead of the English saddle he had been used to in his home in
Massachusetts. The man who has once become familiar with a stock
saddle wants no other. The pony, too, though far from the equal of
the big black stallion he had bought from Jed Clark, was a very good
one. It was easy to see that Mr. Graham was a connoisseur in more
things than cabin sites and flowerbeds. Everything he owned was of
the best.
“We’ll take a run up around the cuttings first,” Mr. Graham
explained, “have lunch at the turpentine camp, and come back by
the river. That will give you a pretty good idea of the whole forest
and show you just how the land lies. Then you can study the thing
in detail at your leisure and tackle it any way you please. I’ll help
you all I can but I have failed at it too often to have any advice to
offer.”
“I’ll probably need all the advice I can get whether it is any good
or not. I certainly have no ideas about it now, but there cannot be
much wrong with seeing the country first.”
Their road—it was little more than some winding wheel tracks—
lead through a rather thin stand of tall, yellow pines which were
straight and smooth as telegraph poles with only a few flat branches
near the top. In places there was scarcely any underbrush on the
ground, only a few stray spears of wire grass and a thin layer of
dead needles which scarcely covered the white sand. Here and there
were large patches of scrub palmetto, just leaves three or four feet
high growing up from the snakelike roots which seemed to lie almost
on the surface of the ground. With the exception of these
palmettoes it did not look very different from the pine forests of the
Southwest with which Scott was so familiar.
“Where are all those ridges which are marked on the map
hereabouts?” Scott asked, as he looked curiously at the level
country. So far he had seen no sign of a hill.
“There is one of them,” Mr. Graham laughed. “Doesn’t look much
like the ‘Great Divide,’ does it?”
“I don’t get you,” Scott said, still scanning the country.
“Well, you see this country is all made up of strips of swamp and
strips of dry land. The dry land is often not more than two or three
feet higher than the swamp, but it is called a ridge just the same.
Must seem a little strange to a man from the mountains.”
Just ahead of them appeared a solid bank of dense underbrush,
all woven together with climbing vines which arched the road like a
gateway. The road dipped slightly under the arch where the ground
was black and damp, but rose quickly and was almost immediately
out in the open pine woods again.
“That,” Mr. Graham explained, “is a baygall, and this is another
ridge. Always be careful how you try to ride through those baygalls
where there is no road, they are sometimes very soft and even if
they are not you are more than apt to hang yourself in those vines.
They have yanked me out of the saddle more than once.”
For two hours they rode through this fascinating country of
alternating swamp and pine flats without seeing any one or any sign
of human habitation. It seemed to Scott even more deserted than
his own wild, rocky mountains. They ducked through a little baygall
and suddenly came out on to an open ridge from which all the
timber had been cut. A more desolate-looking place Scott had
seldom seen. Every stick of timber was gone and under the Forest
Service regulations the slashings had been burned so clean that the
ground was perfectly bare. The low stumps stood out like
tombstones in a cemetery.
“You are approaching the haunted grounds now!” exclaimed Mr.
Graham. “This is where Qualley is cutting and over yonder in that
swamp lies the enchanted pool where all those logs have so
mysteriously disappeared.”
They could hear the sound of axes now and the darkies laughing
and shouting at the mules. Soon they overtook the strangest-looking
rig that Scott had ever seen. It looked at first like two great wheels
rolling along the road alone, but as they drew closer he could make
out a pair of mules ahead of them and three long logs hung on
chains underneath. He had read of these “high wheels” (they were
actually eight feet high), but these were the first he had ever seen.
A darky was sitting on the long tongue singing light-heartedly and
punctuating his song with entirely unnecessary shouts at the patient
mules. When he saw the riders his shiny black face broke into a
broad grin.
“Whatever crooked work is going on around here,” Mr. Graham
remarked soberly, “these darkies are not in on it. They are always as
jovial in their welcome as that fellow there and they are scared to
death of this pond.”
“Or they are good actors,” Scott said. He was unwilling to except
any one from his suspicion.
 Mr. Graham shook his head. “Of course, you are right to suspect
everybody. I was just expressing my own convictions. A white man
can act scared pretty well but when a nigger turns gray he is
scared.”
A little farther on the logging road ended abruptly at a rough log
dock on the edge of a pond. It was unlike any other log pond which
Scott had ever seen. It was in reality an arm of the big cypress
swamp. Great churn-butted cypress trees rose queerly out of the
water around it’s edges. They were bare of leaves, but their limbs
were draped with great festoons of Spanish moss. A number of long
pine logs, some loose and some bound together into rafts, floated
quietly on the black waters. Around the head of the pond directly
opposite them and back a way from the water were the crude board
shacks of the logging crew.
It was a dull, gray day and the whole scene presented a gloomy
enough picture.
“So this is the haunted pond?” Scott asked eagerly, as he took in
every detail of the surroundings. “It sure looks it to-day.”
“Yes, this is the place, but it has had me baffled for so long now
that I am not sure whether it is haunted or enchanted. Seems
sometimes as though it must be enchanted.”
They sat their horses and gazed at the pond in silence for several
minutes. Mr. Graham had stopped even thinking about the possible
solution. Scott was studying all the details of the layout. This was
the place where his problem must be solved and he wanted to be
familiar with every foot of it.
“What’s that?” he asked suddenly, pointing at a bunch of brush
near the opposite side of the pond.
Mr. Graham studied the clump carefully and made out the outline
of a man half screened by the foliage. Even as they looked the form
melted away.
“Come on!” Scott called as he spurred forward. “Let’s ride around
there and see who that is.”
 They dashed wildly around the end of the pond on the trail which
the logging teams had made. It could not have been much more
than a minute till they had reached the point opposite the clump.
There was thirty feet of water between it and the shore, and it was
screened quite as thoroughly on this side as on the other. They
examined it minutely but found no sign of life.
“You stay here and watch it while I go get a boat,” Mr. Graham
suggested. He rode back toward the shanties and Scott kept his eyes
glued on the spot where he had seen that mysterious figure.
Before Mr. Graham had ridden fifty yards a shrill whistle arrested
him. Scott turned quickly at the sound and saw a man walking
leisurely toward him along the edge of the swamp. Mr. Graham rode
back again to join them.
“Thought you had him that time, didn’t you?” grinned the
newcomer.
“Sure did,” replied Mr. Graham good-naturedly. “Was that you out
there on that stump?”
The man grinned again and nodded. Scott thought that he looked
a little ashamed of his discovery and studied him suspiciously.
“What made you beat it when you saw that we had spotted you?”
“Well, I did not want to wave because I did not want those other
fellows to know that I was there. I knew you’d come whooping
around here to have a close look, so I slipped out and came along
the shore to meet you.”
“Pardon me,” exclaimed Mr. Graham, noting the curious glances
the two men were casting at each other. “I had forgotten my
manners. Murphy, this is Mr. Burton who has been sent down here
by the office to solve this log-stealing mystery. Murphy is the ranger
in this district,” he explained to Scott, “and can probably tell you
more about this thing than anybody else.”
The two men shook hands and Scott found himself looking into a
pair of clear, blue, unfaltering eyes.
 “I ought to be able to tell you something about it,” the ranger
admitted doggedly, “but I can’t tell you a blamed thing. I’ve sat on
that stump out there till I’ve worn it smooth, but I have not found
out a thing. Not a single thing.”
“Ever watched at night?” Scott asked.
“Day and night,” he replied. “Watched out there all one night
without seeing so much as a bubble on the water, and in the
morning Qualley reported another bunch of logs missing. Gone right
from under my nose.”
Scott looked mystified but said nothing.
“I’m showing Mr. Burton the layout to-day and letting him get the
general run of things. Going over to the turpentine camp for lunch
and have to keep moving. You will help him all you can if he wants
you.”
“You bet I will!” Murphy exclaimed enthusiastically. “I’ve had my
try at it. Now I’d like to see how somebody else goes about it. Call
on me any old time,” he called to them as they rode away.
“Funny place for him to be,” Scott commented after a long silence.
“The thing is getting on Murphy’s nerves,” Mr. Graham laughed. “It
would not surprise me much to find him in the bottom of that pond
in a diving suit. He wakes up in the middle of the night and sneaks
over there.”
Scott did not say any more about it, but he decided to keep his
eye on Murphy. There might be more than one explanation of his
interest. At least he would bear watching. They rode in silence for
some time, each absorbed in his own thoughts. All traces of the big
swamp were far behind them and they were once more on the open
pine ridges.
 CHAPTER IV

At first Scott did not notice any difference between this forest and
the one they had traversed earlier in the day; he was too busy
thinking of that enchanted pond, but he soon realized that there was
a difference. There was a little earthen flowerpot hanging near the
ground on the side of each tree. On some of the larger ones there
were three or four of them. For three or four inches above each cup
the tree was scratched as though some great bear had been
sharpening his claws there. These scratches were very regular and
there was exactly the same number above each cup. At the bottom
of the scratches and draining into the flowerpots were two little tin
gutters stuck into slits in the tree.
Scott knew that they must be in the turpentine orchard. It was the
first one he had ever seen. He was very curious to know all about it,
but he did not want to appear too ignorant. “Is this a very large
orchard?” he asked.
“About twenty crops,” Mr. Graham answered absently.
That meant over two hundred thousand cups and it seemed to
Scott like an enormous number. It did not seem possible to take care
of so many. It was not long till they saw a darky in overalls and
undershirt shambling about from tree to tree.
“Ever seen them chip?” Mr. Graham asked, suddenly realizing that
it must all be entirely new to Scott. Scott admitted that he had not.
“They are pretty clever at it,” Mr. Graham continued, riding over to
the darky, who greeted them with a pleased grin. “Show us a good
one now, Josh. This gentleman has never seen it done.”
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