State v. Loertscher

391 P.2d 520, 64 Wash. 2d 340, 1964 Wash. LEXIS 338
CourtWashington Supreme Court
DecidedApril 23, 1964
Docket37028
StatusPublished
Cited by3 cases

This text of 391 P.2d 520 (State v. Loertscher) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Loertscher, 391 P.2d 520, 64 Wash. 2d 340, 1964 Wash. LEXIS 338 (Wash. 1964).

Opinions

Finley, J.

In this lawsuit the state of Washington is suing two individuals, a landowner and a logging operator, to recoup $10,512.02 in fire fighting costs incurred by the state in suppressing a 156-acre fire on timberland located in Mason County. The claim of the state is based solely on provisions of the slash statute, RCW 76.04.370, which reads:

“Any land in the state covered wholly or in part by inflammable debris created by logging or other forest operations, land clearing, or right of way clearing and which by reason of such condition is likely to further the spread of fire and thereby endanger life or property, shall constitute a fire hazard, and the owner thereof and the person responsible for its existence shall abate such hazard. If the state shall incur any expense from fire fighting made necessary by reason of such hazard, it may recover the cost thereof from the person responsible for the existence of such hazard or the owner of the land upon which such hazard existed, and the state shall have a lien upon the land therefor enforceable in the same manner and with the same effect as a mechanic’s lien. Nothing in this section shall apply to land for which a certificate of clearance has been issued.

“If the owner or person responsible for such hazard refuses, neglects, or fails to abate the hazard, the supervisor may summarily cause it to be abated and the cost thereof may be recovered from the owner or person responsible therefor, and shall also be a lien upon the land enforceable in the same manner with the same effect as a mechanic’s lien. The summary action may be taken only after twenty [342]*342days’ notice in writing has been given to the owner or reputed owner of the land on which the hazard exists either by personal service or by registered letter addressed to him at his last known place of residence.”

The defendant-respondent landowner, Ernest Loertscher, was the original owner of a certain 40-acre tract of timberland located in Mason County. Late in 1958, Loertscher transferred title to this timberland to the defendant-respondent, Mark Adams, who logged all of the merchantable timber and processed it into lumber at the site.

In conducting his operations on the 40-acre tract, Adams left slash and inflammable debris about the area. “Whips and Stems” (unmerchantable trees) were left standing. Around the perimeter of the logging area, he bulldozed a fire trail some 8 feet in width. Apparently it did meet the standard for such fire barriers as prescribed by state forestry officials. The land was in this condition when it was re-conveyed to Loertscher early in 1959.

On August 8, 1960, a fire of unknown origin broke out in a grassy area near the perimeter of the logged-off and now slash-strewn land. The spread of the fire into and through the slash area in a west-southwesterly direction was fairly rapid, perhaps partially due to critical weather conditions, including high temperature, low humidity, and some wind from the northeast. After the fire advanced well into the slash-covered area in a somewhat confined path, leaving unburned slash on each side, according to witnesses, it increased rapidly in intensity, “seemed to explode,” crowned or topped in the “whips and stems” which had been left standing near the edge of the logged area, and then jumped the fire trail and spread into the adjoining stand of timber, which was owned mostly by the Simpson Logging Company. Approximately 156 acres were burned, only 18 acres of which were on Loertscher’s land.

The fire was contained, controlled and extinguished eventually by state fire fighting crews, assisted by an additional labor force summoned to meet the emergency. Thereafter, acting under the slash statute, the state calculated the fire fighting costs and billed the respondents, [343]*343who refused to pay. Failing to reach a settlement, the state instituted this lawsuit.

At the end of the state’s case the defendants interposed three motions for dismissal. All were granted by the trial court, and the lawsuit was dismissed with prejudice. This appeal followed.

The state’s assignments of error relating to the three above-mentioned motions raise the following questions:

(1) Whether the state produced sufficient evidence of a causal relationship between the existence of the slash, the spread of the fire, and the resultant costs of fighting the fire to require the trial court to submit the issue of the statutory liability of the defendants to the jury;

(2) whether, under the circumstances reflected in the record, the state was required to prove what part or portion of its total fire fighting costs was incurred by crews physically operating on respondents’ land, and

(3) whether Loertscher, who was not the owner at the time the fire hazard was created by Adams, could nevertheless be liable for the state’s fire fighting costs by allowing the condition to remain after he re-acquired the land.

We believe the first question instanced above should be answered in favor of the state. The state’s evidence respecting the cause of the spread of the fire included the testimony of one Paul Armstrong, a forester of 31 years’ experience in fighting forest fires. He testified as follows:

“Q. And what did you observe at that time? A. . . . Upon entering the field, the fire was probably the size of this courtroom. It was in what remained of the slabs and those slabs were really burning and then it was creeping west and just very slowly east from the original fire. The original fire was just west of the mill site as we have it (witness indicating on plaintiff’s exhibit No. 4). Q. Here? A. Yes, and before we could go over the distance from the north property line down to the actual site, the fire had moved slowly into the concentrated slash between his fire trail and the slab pile and just as we were parking, the fire you might say, just exploded in height and width and started, the fire started traveling faster south and quite fast west.”

[344]*344And Francis Wright, the District Administrator in Charge of Fire Control for the State of Washington and the person in charge of controlling all fires on state and private lands outside of the national forests, testified as follows:

“Q.' What was the effect or was there any effect upon this fire by Mark Adams fire trail, the one that you described up there, did it have any effect in stopping the fire? A. Not with the conditions of the area at that time. Q. Would you explain that a little more in detail please? A. With the fuel that was on the ground. Q. What do you mean by fuel on the ground? A. The slash, the added risk that was on the ground, these few scattered trees that were left, the fuel created such a heat that it drove this fire up in the top• of the trees. Because of these few scattered trees, then the fire was carried across the trail, the trail wasn’t effective in that case.” (Italics ours.)

Another forester, with 11 years of experience, Cal Poe, testified:

“Q. Why did the fire burn over the trail left by Mark Adams? A. It was going too hot when it hit the trail. Q. How did it get so hot? A. Well, the heavy slash. Your slash and the inflammable fuel that was there burns very fast. This type of light fuel, needles, the small twigs, this type of fuel explodes, as I say, it burns real fast.

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Related

Department of Natural Resources v. Littlejohn Logging, Inc.
806 P.2d 779 (Court of Appeals of Washington, 1991)
Truck Insurance Exchange v. Merrell
596 P.2d 1334 (Court of Appeals of Washington, 1979)
State v. Loertscher
391 P.2d 520 (Washington Supreme Court, 1964)

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Bluebook (online)
391 P.2d 520, 64 Wash. 2d 340, 1964 Wash. LEXIS 338, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-loertscher-wash-1964.