Arnhold v. United States, 14331.

Citation225 F.2d 650
Decision Date14 October 1955
Docket NumberNo. 14331.,14331.
PartiesArthur A. ARNHOLD et al., Appellants, v. UNITED STATES of America, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Ferguson & Burdell, W. H. Ferguson, W. Wesselhoeft, Donald McL. Davidson, Seattle, Wash., for appellants.

Warren E. Burger, Asst. Atty. Gen., Alan S. Rosenthal, Paul A. Sweeney, Samuel D. Slade, Sondra K. Slade, Attorneys, Dept. of Justice, Washington, D. C., Charles P. Moriarty, U. S. Atty., Francis N. Cushman, Asst. U. S. Atty., Seattle, Wash., for appellee.

Before BONE, ORR and HASTIE, Circuit Judges.

ORR, Circuit Judge.

As is the situation in the case of Rayonier, Inc., v. United States, 9 Cir., 225 F.2d 642, appellants have appealed from a judgment dismissing their complaint insofar as it attempts to state a cause of action against the United States. The allegations of the complaint, in the instant case, are in most part substantially the same as those considered in the Rayonier case.

In the instant case appellants, by an allegation not found in the Rayonier case, attempted to avoid the rule that ordinarily the servient tenant of an easement has no duty to make repairs or maintain the easement and is not liable to third parties by failing to do so, by placing their case within the recognized exception where by contract or long established custom the servient tenant has undertaken such an obligation. The allegation relied on is: "* * * said owner United States had for several years prior thereto failed to require defendant railroad to abate the above conditions, or any of them, although it had reserved the right to do so and had done so at various times previous thereto."

Most liberally construed this allegation charges only a prior practice of requiring the dominant tenant to make repairs. There is no allegation that the servient tenant, the Government, had made repairs on the right of way; therefore, there is no showing of an obligation to maintain or repair the right of way on the part of the servient tenant. Hence, the Government was merely an adjoining landowner to whose land fire, started by another's negligence, subsequently spread, and had no duty to follow the fire. Cases such as Sandberg v. Cavanaugh Timber Co., 1917, 95 Wash. 556, 164 P. 200, on which appellant relies, do not impose such an obligation. They govern the duties of the landowner on whose property the fire breaks out. The complaint portrays a situation in which...

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4 cases
  • Kirtland v. J. Ray McDermott & Co.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 3, 1978
    ...these decisions also rely on the rationale that the district court lacks jurisdiction to act during the appeal. But cf., Arnhold v. U. S., 9 Cir. 1955, 225 F.2d 650, vacated and remanded on other grounds, 352 U.S. 315, 77 S.Ct. 374, 1 L.Ed.2d Thus, in Bush, supra, 311 F.2d at 894, this cour......
  • Rayonier Incorporated v. United States Arnhold v. United States
    • United States
    • United States Supreme Court
    • January 28, 1957
    ...private actionable rights.' The Court of Appeals affirmed the trial judge's disposal of the complaints. 9 Cir., 225 F.2d 642 and 9 Cir., 225 F.2d 650. In agreeing that the United States could not be sued for any carelessness by the Forest Service in fighting the fire, it also relied exclusi......
  • Arnhold v. United States
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 26, 1960
    ...in their allegations, and we affirmed, in Rayonier Inc. v. United States, 9 Cir., 1955, 225 F.2d 642, and in Arnhold et al. v. United States, 9 Cir., 1955, 225 F.2d 650. However, the Supreme Court granted certiorari, and setting us right on our misapprehension of the meaning of certain lang......
  • Arnhold v. United States
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 10, 1961
    ...earlier opinion when the case was first here. Rayonier Incorporated v. United States, 9 Cir., 225 F.2d 642, 648; Arnhold et al. v. United States, 9 Cir., 225 F.2d 650. In the first of those two opinions language was used to the effect that "liability may not be predicated on conduct occurri......

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