United States v. Feather River Lumber Co. , 23 F.2d 936 ( 1928 )

KERRIGAN, District Judge.

This is an action by the United States to recover damages from the Feather River Lumber Company on account of the destruction of timber in the Plumas National Forest, by a fire which started August 6, 1924. Defendant is charged with negligently setting this fire and negligently allowing it to spread.

Defendant operates a logging railroad on which it uses oil-burning logging or Shay engines, which at the time of the fire were not equipped with spark arresters. Near the point where the fire started there is a Y in the track. The crotch of this Y is near a saddle on the ridge, along which the track runs in a general north and south direction. From this ridge the slope drops down to a canyon on the east and to a draw on the west, which leads down from the crotch or pocket of the Y to a privately owned meadow. The fire was first seen hacking down this draw toward the meadow. Later, the wind having increased, it swept eastward, crossing the tracks, and reached the • National Forest. The plaintiff asserts that this fire was set by one of defendant’s oil-burning Shay engines, which had switched at the Y shortly before the fire was started.

It appears from the evidence that the season of 1924 was a very dry one. The forest lookout on Mt. Elwell, the highest point in the vicinity, some 15 miles away, had reported two or three fires a day along defendant’s right of way for approximately three months. As early as April of that year defendant had been warned to clear its right of way, which was recognized by the government to be a fire hazard. It also appears that an oil-burning Shay engine is capable of starting a fire along a right of way, especially when it is being sanded out, with the resulting shower of sparks, carbon, and fire box clinkers. In other words, there existed at the place where the fire originated a definite fire hazard, and defendant’s engines were capable of and had started other fires in the same region at about that time.

With reference to the origin of this particular fire, the evidence shows that defendant operated two Shay engines over its logging road, known as No. 1 and No. 2. At about 9 :30 a. m. an engine, with a string of empty ears, identified as No. 1, was switching at the Y. Various witnesses testified to seeing the heavy smoke resulting from sanding out. The forest lookout watched the engine particularly, because he had reported fires along the road .frequently, and waited after the train left to see the smoke disappear. In this instance, after 10 or 15 minutes, the smoke did not disappear and changed its character, and he located and reported the fire, the lower edge of which was then, by his estimate, based on the use of his instruments, 100 feet from the Y. Other witnesses testified to the fact that the. fire started immediately after the train left. Many of them were not in a position to see the fire at its exact point of origin, but they establish the fact that the fire started close to the track at the Y and backed away down the draw to the west. .

No member of the crew of engine No. 1 or the train hauled by it was called as witness by defendant. No fire-bearing or fire-causing agency, other than the engine, was at or near the scene of the fire at the time when it started.

Much stress was laid during the trial upon the fact that, even assuming all of the facts just summarized, the engine could not have set the fire, because the wind was southwesterly, and sparks or clinkers from the engine would be carried on the wind to the northeast, and away from the place where the fire started. It is true that the evidence shows that the wind on August 6, 1924, was from the southwest, and thatñt increased in intensity during that day, partly on account of the draft created by the fire itself. The evidence also shows, however, that in that region the early morning winds are usually light and gusty, a stronger wind rising later in the morning. This was true on the day in question. It also appears that wind is subject to sudden veers and flaws in mountain country of this type, and, further, that there is always a back draft down a draw, such as that in which the fire started, ordinarily and in this ease sufficient to cause the ■fire to burn against the direction of the upper air currents.

In view of these facts, I find that the fire was started by defendant’s Shay engine No. 1. The evidence also shows negligence on the part of defendant in not clearing the right of way, especially after express warning, and other fires, in the sanding out of the engine under the conditions of fire hazard present, and, finally, in not having equipped these engines with spark arresters. On this state of the facts,' defendant is liable for the actual damages claimed and proved.

The prayer of the complaint asks for $177,000 damages on the theory that the government is entitled to double damages under section 16 of the Forestry Act of California. St. Cal. 1905, p. 240, amended by St. 1919, p. 234. It should be noted in this connection that the body of the complaint sets up the usual grounds for recovery for negligence, and does not plead the penal double damages specially. In view of the strictness required in pleading penal damages, this omission is in itself enough to preclude recovery of more than actual damages. Clark v. S. F. & S. J. V. R. R., 142 Cal. 614, 76 P. 507.

In addition, examination of the Forestry Act shows that, even were the penal damages effectively pleaded, the government could not recover them. Section 18 gives the right to recover double damages in a civil action, where the defendant has violated the provisions of preceding sections imposing criminal liability. Among these sections is section 17 (St. 1905), penalizing the operation of engines in, through, or near forests, without spark arresters. Oil-buming engines are specifically excepted from this requirement, so that defendant in the present case did not fall within its terms. Section 17 has not been amended, and is specifically referred to in section 18. It is true that section 384, Penal Code of California, which covers the case of engines -without spark arresters, no longer excepts oil-buming engines. But, in view of the strictness with which penal statutes are construed, it must be held that it is section 17, specifically referred to ini section 18 of the Forestry Act, and not the parallel section of the Penal Code, which controls.

Turning to the actual damages proved, it should be noted that defendant introduced no evidence as to the damages, but was content merely to object to two items on questions of law. The first objection, to the sum of $12,674.24 claimed as damages for loss of young growth, computed on the basis of reforestation cost, is not tenable. The government is entitled to recover for the damage arising out of the destruction of young growth. The difference in the market value of the land before and after the fire is not available as a measure, since the National Forest is not marketable. Reforestation cost is the proper basis for computing the loss.

The second item of damages objected to is one of $822.30 for unmerchantable timber destroyed, the figure having been arbitrarily arrived at. This objection is valid, and this amount will be deducted from the award. Allowing for the deduction above referred to, the damages proved amount to $39,572.33, plus $2,003.47 expended by the government in extinguishing the fire, a total of $41,575.-80, and judgment will bo entered for plaintiff for this amount.

Both parties have requested speeial findings. In view of the fact that they have thereby preserved their right to a review of the evidence on appeal, and that this opinion embodies my view upon all of the essential issues, speeial findings are denied.