Leuteneker v. Fisher

WARNE, J. pro tem.* Respondents brought separate actions to recover damages to their lands as a result of a “controlled burn” which had been ignited on appellants’ land and escaped to the respondents’ adjoining lands. The eases were consolidated for trial and tried by the court sitting without a jury. The trial court found that the respondents had suffered damage to their lands by reason of the negligence and carelessness of the appellants in maintaining the fire on their said lands. A money judgment was rendered in favor of each respondent.

Subject to certain conditions appellants were issued a permit by the Division of Forestry to conduct a controlled burn on their lands. In compliance with certain precautionary requirements for the burn, appellants bulldozed a fire trail around the area of the proposed burn 75 to 100 feet in width, but failed to give respondents the required notice of the time of the intended burning. Neither did appellants comply with the condition of the permit that “Brush along County Road on East side to be pushed back 60' or more.” There is testimony that the fire, which spread to respondents’ property, started within 50 feet across the road in this area. The appellant Fisher, while a witness, admitted that the fire which damaged respondents’ land had its origin from the fire which had been ignited on his (appellants’) adjoining land. [35]There is evidence that the fires were set under living trees; that piles of debris and slash were burned under living trees and that in one instance there was a spectacular burn of a cedar tree which “went up with a roar and created quite a vortex.” It was a warm day in August. A Mr. Overmire testified that on five occasions he objected to the practice of lighting fires under trees and questioned it “very vociferously. ’ ’ He also testified to falling sparks in the area, making it necessary for him to move his car and the members of his family to a safer position. He said that he had been parked near the place where the fire jumped the road; that while this condition prevailed it was decided to light but one more fire which was to be the last; that soon after this last fire was ignited it escaped easterly across the county road upon other property of the appellants. From then on the fire was out of control and ultimately damaged respondents’ lands. It also appears that appellants had no one stationed east of the road near the point where the fire jumped to extinguish any spot fires that might be caused by flying sparks. We feel that this evidence supports the findings of the trial court.