First State Bank v. United States

• Decision Date: 21 September 1937
• Docket Number: No. 8473.,8473.
• Citation: 92 F.2d 132
• Parties: FIRST STATE BANK OF THOMPSON FALLS v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

92 F.2d 132 (1937)

FIRST STATE BANK OF THOMPSON FALLS v. UNITED STATES.

No. 8473.

Circuit Court of Appeals, Ninth Circuit.

September 21, 1937.

Murphy & Whitlock and J. C. Garlington, all of Missoula, Mont., for appellant.

John B. Tansil, U. S. Atty., and R. Lewis Brown, Asst. U. S. Atty., both of Butte, Mont., and Charles S. Brothers, of Missoula, Mont.

Before DENMAN, STEPHENS, and HEALY, Circuit Judges.

DENMAN, Circuit Judge.

This is an appeal by the defendant bank from a judgment rendered in favor of the United States in the sum of $1,163.28. This amount represents the cost of extinguishing a forest fire originating on land to which appellant held the record title. Liability is predicated upon section 2778.2, Revised Codes of Montana 1935:

"2778.2. Liability for extinguishment of forest fires. Any uncontrolled or spreading fire in forest material in the state of Montana, from May 1 to September 30, inclusive, is hereby declared a public nuisance. The person, firm, or corporation on whose property such fire exists or from whose property such fire spreads, is hereby made responsible, to the extent hereinafter set forth for its control and extinguishment. If the person, firm or corporation thus responsible, shall refuse, or neglect, or fail to take reasonable steps to control or extinguish it, the state forester, the United States or any organized and functioning forest protective association recognized by the state forester, may summarily abate such nuisance by controlling or extinguishing the fire, and the cost thereof may be recovered from such person, firm or corporation responsible for such fire by the state of Montana, or the United States, or the association, which extinguished or controlled it. If the person, firm or corporation shall fail to pay in full the total amount due within thirty (30) days after date of written demand for payment, such amount may be collected in an action for debt by the state, the United States, or the association which abated the nuisance.

"Provided, that when any person, firm or corporation has listed his lands with any such regularly organized and functioning forest protective association recognized by the state forester, or with the state forester or the United States forest service, it shall be considered that he has taken reasonable steps to control and extinguish fires as described in this section except such fires as may be the result of his negligent acts, conduct or operations."

The case was heard on an agreed statement of facts. From this statement it appears that the land to which defendant held legal title was a small plot adjoining lands of the government, the Cabinet National Forest in Montana; that the plot covered by defendant's title included forest and timber material; that it had never been listed with a forest protective association as provided for in the statute quoted.

Without fault or knowledge on the part of the defendant, fire broke out on the land on August 28, 1931. It was discovered at 3 o'clock in the afternoon, and one hour later was reported to an agent of the plaintiff, Supervisor Abbott of the Cabinet National Forest. He immediately dispatched men and equipment to the scene. Until September 7, 1931, plaintiff's employees fought the fire, until it was extinguished.

The defendant bank did not learn of the fire until the day after it broke out. It then took no steps to control or extinguish the blaze.

Whether, on these facts, a landowner is liable under the statute to reimburse the United States for its expense in extinguishing the fire, is one of the questions raised by the parties in this case.

But at the threshold of our inquiry is another question: Was the defendant bank, at the time of the fire, the owner of the property upon which the blaze originated, within the meaning of the statutory clause: "The person, firm, or corporation on whose property such fire exists or from whose property such fire spreads, is hereby made responsible."?

The agreed statement of facts sets forth that on December 7, 1927, the defendant bank agreed to sell, and one Marguerite T. Christie agreed to purchase, the land in controversy for the sum of $2,500, payable in installments. This contract was still executory at the date of the fire.

Under the contract, the vendor (defendant) was to retain title until the full amount of the purchase price was paid. That the vendee, Mrs. Christie, was entitled to possession of the premises during the term of the contract is shown by the provision of the contract governing default on the part of the vendee: "It is mutually understood and agreed by and between the parties of this Contract that thirty days is a reasonable and sufficient notice to be so given to said second party, in case of failure to perform any of the covenants on her part hereby made and entered into, and shall be sufficient to cancel all obligations hereunto on the part of the said first party, and fully reinvest it with all right, title and interest hereby agreed to be conveyed, and the party of the second part shall forfeit all payments made by her on this Contract, and all her right, title and interest in all buildings, fences or other improvements...