United States v. Boone
| Decision Date | 09 April 1973 |
| Docket Number | No. 72-1484.,72-1484. |
| Parties | UNITED STATES of America, Appellant, v. Ben F. BOONE, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Dirk D. Snel, Atty., Dept. of Justice (Kent Frizzell, Asst. Atty. Gen., James L. Treece, U. S. Atty., Charles W. Johnson, Asst. U. S. Atty., George R. Hyde and Jacques B. Gelin, Attys., Dept. of Justice, with him on the brief), for appellant.
Robert W. Hansen, Denver, Colo., for appellee.
Before SETH, McWILLIAMS and BARRETT, Circuit Judges.
The United States brought this damage action against Ben F. Boone to recover the cost incurred in suppressing a forest fire which spread from the defendant's land, where he was burning brush, to a National Forest. The suit was tried to a jury which found for the defendant, and the United States has taken this appeal.
The issue on appeal centers on the dismissal of one of the two causes of action in the complaint. The first cause asserted negligence in setting on fire a pile of brush by defendant on his property. The cause went to the jury. The second cause of action, which was dismissed by the trial judge before submission to the jury, was based on a Colorado statute which the Government asserts creates an absolute liability and is applicable. This statute (C.R.S.1963 § 41-2-5) reads in part:
"If any person shall set on fire any woods or prairie, so as to damage any other person, such person shall make satisfaction for the damage to the party injured, to be recovered in an action before any court of competent jurisdiction."
The facts are not in dispute. The record shows that the defendant Boone and an employee of the United States Soil Conservation Service were on Boone's ranch to survey and stake out a damsite for a livestock pond. There was a pile of brush on the proposed site, and Boone struck a match and set it on fire. A few minutes later a sudden wind came up, the fire burned out of control and spread on to the lands of the San Juan National Forest which adjoined Boone's property. The fire burned approximately 315 acres of national forest land, and thereafter the United States brought suit to recover the monies expended by it in suppressing the fire, in restoring the watershed, and for timber and other resource damage in the amount of $31,475.11.
The United States on this appeal asserts that the District Court committed error in holding that state law was not available to the United States as a ground for recovery, and that the second cause based on C.R.S.1963 § 41-2-5 should not have been dismissed.
Appellee Boone urges us to hold that even if C.R.S.1963 § 41-2-5 is applicable, which it is not, it sets forth no basis for liability other than negligence which was submitted to the jury and resolved in his favor.
The trial court apparently dismissed the second cause of action of the complaint on the ground that damages to the forest were governed exclusively by federal law.
There appears to be little...
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