#### GUSTAF A. CARLSON, ALFRED ANDERSON, CLAUDE H. SIEMS, NICK F. HELMERS, ROME A. SCHAFFNER, DOING BUSINESS AS SIEMS & CARLSON, v. THE UNITED STATES

[No. E-64.

Decided March 15, 1926]

*On the Proofs*

*Contract; road construction; burmnp of d,ét>ris; spread of forest fire.*— Where under a contract for road construction in a national forest the plaintiffs were required to burn the débris “ at such time and in such manner as absolutely to prevent fire from spreading to areas adjoining the right of way,” and the plaintiffs in burning such débris did not prevent the fire from so spreading, they can not recover compensation from the United States for assisting the Forest Hanger, upon his request, to extinguish the fires so started.

*The Reporter's*statement of the case:

*Mr. Samuel V. Marhley*for the plaintiffs. *Mr. Mantón M. WyveTl*was on the briefs.

*Mr. Ralph G.*Williamson, with whom was *Mr. Assistant Attorney General Herman J.*Galloway, for the defendant.

The court made special findings of fact, as follows:

I. The plaintiffs, Gustaf A. Carlson, Alfred Anderson, Claude H. Siems, Nick F. Helmers, and Rome A. Schaffner, constitute a copartnership doing a general contracting business under the name of Siems & Carlson, having their *902principal office and place of business at 412% Kealty Building, Spokane, Washington.

II. The said Gustaf A. Carlson, Alfred Anderson, Claude H. Siems, Nick F. Helmers, and Some A. Schaffner, are, excepting Alfred Anderson, who is a subject of the Dominion of Canada, citizens of the United States and have at all times borne true allegiance to the Government of the United States, and no one of said parties has aided, abetted, or given encouragement to rebellion against the Government of the United States.

III. Under date of August 2, 1920, a written contract was entered into between Gustaf A. Carlson, Alfred Anderson, Claude H. Siems, Nick F. Helmers, and Nome A. Schaffner, doing business as Siems & Carlson, of the first part, and the United States of America, by the Secretary of Agriculture, of the second part, for the construction of a certain road known as the Mount Baker Boad in Whatcom County, Washington, and within the Washington National Forest. Exhibit “A,” annexed to the petition herein, is a true copy of an excerpt from said specifications, proposal, contract and bond for forest road construction, and said road construction was fully carried out and payment therefor made by the United States. Pursuant to the provisions of said contract the firm of Siems & Carlson entered upon the construction work in question during the summer of 1920 and were engaged in that work in the latter part of August of that year. On the 28th of August, 1920, while active work on the project was under way, the contractors were x-eady tó engage in cleaning up by burning the accumulation of slashing and other debris resulting from the clearing of the right of way. The State law in effect at that time provided as follows:

“ Sec. 8. No one shall burn any forest material within any county in this State in which there is a warden or ranger during the months of June to September, inclusive, in each year, which period is hereby designated as the closed season, without first obtaining permission in writing from the forester, or a warden or a ranger, and afterwards complying with the terms of said permit; and any one violating any provisions contained in the preceding portions of this section shall, upon conviction thereof, be fined not less than twenty-*903five dollars ($25.00) nor more than five hundred dollars ($500.00), or be imprisoned in the county jail not exceeding thirtj’- (30) days. Such permission for burning shall be given only upon compliance with such rules and regulations as the board shall prescribe, which shall be only such as the board deems necessary for the protection of life or property.

“ The forester, any of his assistants, any warden or ranger, may at his discretion, refuse, revoke or postpone, the use of permits, to burn when such act is clearly necessary for the safety of adjacent property.”

In accordance with this requirement a permit was secured ' on the 28th day of August, 1920, from Forest Eanger G. G. Burch, who was employed by the United States as a forest ranger in the Forest Service and had also been commissioned by the State forester as an ex officio ranger under the provisions of the laws of Washington, and the permit issued by him, as above noted, was issued in his capacity as an ex officio State officer, and in accordance with said permit, which was subject to revocation by Forest Eanger Burch, the contractors on August 28, 1920, started burning the aforesaid slashings and other debris in the manner usually employed during highway construction in disposing of like rubbish and waste materials. On September 1,1920, weather conditions having made it unsafe to continue burning, Eanger Burch cancelled this permit. At this time fires had spread beyond the right of way of the road project at several points and other fires spread likewise on September 2, 1920. When said permit was cancelled Eanger Burch assumed full charge of fighting the fires and called the crews employed' by Siems & Carlson in the road construction work to assist in preventing further spreading of the fires and for extinguishing the same.

IV. The plaintiffs on December 11, 1920, submitted to the Department of Agriculture a voucher and requested that payment be made by the United States for the services rendered by the agents and employees of plaintiffs in fighting said fires as aforesaid. Said claim was rejected for payment by the Secretary of Agriculture. Exhibit “ B,” annexed to the petition herein, is a true copy of said rejection letter from the Solicitor of Agriculture. The pay roll for the work done by plaintiffs’ agents and employees during the *904time engaged in fighting the fires, as hereinbefore set out,,, and for which plaintiffs ask reimbursement, amounts to* $3,662.25. This amount was slightly in excess of the amount payable for such services at current rate established in the National Forest Service, but is, nevertheless, reasonable and. is not out of proportion to the established rates for suck services.

V. The said sum of $3,662.25, expended by said plaintiffs-in fighting said fires as aforesaid, has not been paid by the-United States, nor have plaintiffs in any manner been reimbursed.

The. court decided that plaintiffs were not entitled to-recover.

GRAHAM, Judge,

delivered the opinion of the court:

This case is before the court on a stipulation of facts.. There is no other evidence than that contained in the-stipulation.

Plaintiffs entered into a contract with defendant for the-construction of a road within the Washington National Forest, State of Washington. The contract required the plaintiffs to burn the debris from the material cut at certain-points on or near the road which was being constructed, and the plaintiffs complied with this requirement. The State-of Washington required a permit for the burning of material in the forest. The State ranger was employed by the-Government, and, as such, he granted a permit to burn on August 28, 1920. The plaintiffs started burning the debris in the usual manner for disposing of such material. On September 1, weather conditions having made it unsafe to continue burning, the ranger cancelled the permit. At this-time fires had spread beyond the right of way of the road project at several points, and other fires spread likewise on-September 2, 1920. After cancellation of the permit the-ranger assumed full charge of fighting the fires and called out the crews employed by plaintiffs in road construction to-assist in preventing further spreading of fires and for the extinguishment of them. Plaintiffs paid the crews for the time thus employed in fighting the fires under the direction-. *905of the ranger, and it is admitted that $3,662.25, the amount .sued for, was the amount expended by the plaintiffs in that -connection. When the claim was presented to the Department of Agriculture payment was refused.

Exhibit “A,” attached to plaintiffs’ petition, being an oxcerpt“from the contract, contains the following provision:

“ The material placed in piles shall be burned by the contractor, at such time and in such manner as absolutely to prevent fire from spreading to areas adjoining the right of way.”

It also provides:

“ The contractor will further be required when requested 3by a properly authorized forest officer to place his employees at the disposal of the United States Forest Service for the ;purpose of fighting forest fires for which he or his employees .are not responsible with the understanding, however, that payment to such employees for such services will be made ’by the United States at not less than the current rate established in the said national forest for such services, and that -any employees furnished will be relieved from fire fighting as soon as it is practicable for the forest supervisor to obtain other labor adequate for the protection of the national :f orest.”

It will be seen from the last-quoted paragraph that the plaintiffs agreed to place their employees at the disposal of ■-the Forest Service for the purpose of fighting fires, and that, if the plaintiffs or their employees were not responsible for the fires, they were to be reimbursed. The question in this case, therefore, is, Were the plaintiffs or their ^employees responsible for the fires for the fighting and ex-tinguishment of which their crews were used in this case?

Plaintiffs’ responsibility is to be measured by the obli.gation of their contract. What was that obligation? As ,set out in the first of the quoted paragraphs, “ absolutely to prevent fire from spreading to areas adjoining the right -of way.” If the fire spread beyond the right of way, then plaintiffs were responsible under their contract. What, then, do the stipulated facts show? They show that at the time the permit was canceled and when the crews were ■ordered out, “ fires had spread beyond the right of way of the road project at several points, and other fires spread *906likewise on September 2, 1920.” For this the plaintiffs must be held responsible because they had entered into an agreement “ absolutely to prevent ” this condition.

The petition shoiild be dismissed and it is so ordered.

Hay, *Judge;*Downey, *Judge;*Booth, *Judge;*and Campbell, Ch*ief*Justice, concur.