Town of Howard v. Soo Line RR Co.

Decision Date07 May 1974
Docket NumberNo. 345,345
Citation217 N.W.2d 329,63 Wis.2d 500
PartiesTOWN OF HOWARD, a Wisconsin municipal corporation, Respondent, v. SOO LINE RR COMPANY, a Minnesota corporation, Appellant.
CourtWisconsin Supreme Court

Wilcox & Wilcox, Eau Claire, for appellant.

Russell R. Falkenberg, Cadott, for respondent.

HALLOWS, Chief Justice.

The complaint alleges the Soo Line was negligent in the operation of its train and thereby caused live sparks to be emitted from the the locomotive which 'alighted on the land of said town' causing a large grass fire. A stipulation of facts was entered into which stated that on April 25, 1969, sparks from a Soo Line locomotive negligently caused the fire to be spread on land adjoining the railroad's right-of-way causing a large grass fire in the town of Howard. It was also stipulated the town of Howard had no fire fighting facilities of its own but satisfied its statutory duty to furnish fire protection by contracting with the Chippewa Rural Fire Department to furnish such protection at a prefixed rate per hour of service. Under this contract, the Chippewa Rural Fire Department responded to a call to extinguish the fire caused by the Soo Line and made a charge to the town of Howard of $750 therefor. The Soo Line in the stipulation admitted its negligence in causing a large grass fire. It admitted it paid no taxes directly to the town of Howard but was required and does pay taxes to the state of Wisconsin. Based upon this stipulation and the argument that the large grass fire was not a forest fire, Soo Line sought summary judgment dismissing the complaint on the ground it was not liable to pay $750 for extinguishing the fire either as a direct tax, special assessment or service charge.

On this appeal Soo Line contends the fire-fighting charge is illegal as a tax and is prohibited by sec. 76.23, 1 which exempts railroads from taxation excepting those imposed by the state. This exemption was upheld in Milwaukee and St. Paul R.R. Co. v. Board of Supervisors of Crawford County (1871), 29 Wis. 116, but this is not the point in the case because the town of Howard does not purport to tax the Soo Line directly or indirectly, nor does the town of Howard propose that its claim is a special assessment for which, if valid, the Soo Line concedes it would be liable. See sec. 66.64, Stats.; City of Superior v. Lake Superior T. & T. R.R. (1913), 152 Wis. 389, 140 N.W. 26.

Soo Line argues any liability for the cost of extinguishing a negligently set fire must be imposed by statute as there is no common-law liability permitting a town to charge a railroad for such services or to recover for fire suppression expenses. This proposition seems to be supported by People v. Wilson (1966), 240 Cal.App.2d 574, 49 Cal.Rptr. 792; State v. Boston and M.R.R. (1954), 99 N.H. 66, 105 A.2d 751, and United States v. Chesapeake and O.R.R. (4th Cir. 1942), 130 F.2d 308. The town of Howard argues it is not taxing Soo Line directly or indirectly, is not levying a special assessment but is only attempting to recoup its financial expenditures incurred by reason of suppressing a fire negligently caused by the railroad. In doing this, it is merely following a policy of billing negligent nontaxpayers and taxpayers for the reasonable and necessary cost of fire fighting which it paid under a contract to the Chippewa Rural Fire Dept. The town of Howard rests its claim, as did the trial court, upon the fact the fire was a forest fire for which the railroad is claimed to be liable under sec. 26.21, Stats. 2 This section allows the United States, the state, county, or private owner whose property is injured by a forest fire to recover double damages. The section also creates a liability for a person causing fires in violation of the chapter, but this liability is to the state to be enforced in an action for debt. The amount of recovery, as we read the statute, is 'to the full amount of all damages done to the state lands and for all expenses incurred by the towns fighting such fires.' Assuming the fire in question to be a forest fire, it is apparent the trial court was in error in placing liability upon this section. Nowhere in this section is liability created in favor of a town. The town's expense of fighting a fire is restricted to state lands and recoverable by the state. Furthermore, this section creates a liability in favor of the owner of the damaged land and the stipulation is devoid of stating who owns the lands in question--it merely states the land was in the town of Howard. True, the complaint alleges 'on the land of the Town of Howard' but this is an allegation and not evidentiary proof required by a motion for summary judgment.

However, sec. 26.14(8)(b), Stats., 3 creates liability upon any person who sets a fire which becomes a forest fire for all expenses incurred in the suppression of such fire. This section applies to the town in which the forest fire occurs. If the fire in the...

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5 cases
  • Heritage Farms, Inc. v. Markel Ins. Co.
    • United States
    • Wisconsin Supreme Court
    • 26 Marzo 2009
    ...(1914), Allenton Volunteer Fire Department v. Soo Line Railroad Co., 372 F.Supp. 422 (E.D.Wis.1974), and Town of Howard v. Soo Line Railroad Co., 63 Wis.2d 500, 217 N.W.2d 329 (1974). ¶ 25 However, Markel's reliance on these cases is unpersuasive for two reasons. ¶ 26 First, all of these ca......
  • Town of Freetown v. New Bedford Wholesale Tire, Inc.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 16 Julio 1981
    ...49 Cal.Rptr. 792 (1966); Portsmouth v. Campanella & Cardi Constr. Co., 100 N.H. 249, 253, 123 A.2d 827 (1956); Howard v. Soo Line R.R., 63 Wis.2d 500, 503, 217 N.W.2d 329 (1974); Allenton Volunteer Fire Dep't v. Soo Line R.R., 372 F.Supp. 422, 423 (E.D.Wis.1974); Annot., 90 A.L.R.2d 873 (19......
  • In re TMI Litigation Governmental Entities Claims, Civ. A. No. 81-0419
    • United States
    • U.S. District Court — Middle District of Pennsylvania
    • 17 Agosto 1982
    ...authority to maintain suit for the expenses. People v. Wilson, 240 Cal.App.2d 574, 49 Cal.Rptr. 792 (1966); Town of Howard v. Soo Line RR Co., 63 Wis.2d 500, 217 N.W.2d 329 (1974). Recovery by the government is allowed if the property being protected is that of the government itself. United......
  • Heritage Farms, Inc. v. Markel Ins. Co.
    • United States
    • Wisconsin Court of Appeals
    • 28 Febrero 2008
    ...cases are: Bonnell v. Chicago, St. Paul, Minneapolis & Omaha Ry. Co., 158 Wis. 153, 147 N.W. 1046 (1914); Town of Howard v. Soo Line R.R. Co., 63 Wis.2d 500, 217 N.W.2d 329 (1974); and Allenton Volunteer Fire Dep't v. Soo Line R.R. Co., 372 F.Supp. 422 (E.D.Wis.1974). Because the defendants......
  • Request a trial to view additional results

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