(dissenting) — The evidence established these facts: In the year 1958, Mark Adams owned a 40-acre tract of land, 22 acres of which were classified as agricultural land and 18 acres timber land. He logged the merchantable timber from the 18 acres, and collected and left the slash upon the logged-off land in compliance with state fire prevention regulations. Before Mr. Adams finished his logging operations, he bulldozed and constructed fire trails, designed to prevent the spread of fire from his land to the adjoining timber lands. After completing the fire trails, they were inspected and approved by the state authorities as being sufficient to contain any fire originating on the Adams land and hence no fire hazard to the adjoining timber land. The appellant state of Washington’s evidence in this regard is as follows:
“Q. Mr. Wright, a man by the name of Mr. Needham works for you [the state department], doesn’t he? A. He did work for us [the state]. Q. He did work for you? A. Yes. Q. Didn’t he to your knowledge go out and inspect this area after Mr. Adams had completed his logging and completed the building of a fire trail around it and the falling of the snags? A. Yes. Q. And didn’t he report to you that that had been, properly and adequately done, or did he? A. Yes, the report is right there.” (Italics mine.)
In 1959, Mr. Adams sold the 40-acre tract to Ernest Loertscher. August 8,1960, a fire which had its origin on the agricultural grass land area, burned through a part of the 18 acres of logged-off land and, because of the natural debris in the forest, the fire, aided by stiff, high winds, reached the tops of the small non-merchantable timber, leaped across the state approved fire barriers, and spread over approximately 156 acres.
The state’s cost in extinguishing the fire was $10,512.02, all of which the state seeks to recover from the respondents.
At the close' of the state’s case, respondents challenged the sufficiency of the evidence to take the claim to the jury. The court granted the motion, holding that' the state’s evidence did not establish that the respondents’ slash caused the fire or that the slash on the Loertscher land was left *348in “such condition . . . likely to further the spread of fire, . . . ” as contemplated by RCW 76.04.370. I agree with the conclusion of the trial court.
The state’s evidence failed to establish that the slash caused the fire or that the slash was left in a condition likely to further the spread of fire for the following reasons:
(1) The fire admittedly originated on nonhazardous agricultural lands. The cause of the fire, as appellant’s counsel stated in argument before the court, was a lighted match carelessly thrown in the agricultural grass area or some other cause. The evidence is conclusive that the slash did hot cause the fire.
(2) The state’s only evidence on the issue of whether the slash caused the spread of the fire across the state approved fire trails was furnished by the state’s witness, Cal Poe. On direct examination he testified in answer to the question: “Had there been no slash, would it have crossed the fire trail? A. . . . There is a good chance we could have held it.” Immediately: after this answer, the witness was asked on cross-examination: “I take it, Mr. Poe, that you are unable to answer that last question.' You don’t know whether or not it would have gone across [the fire barriers] or not in the absence of that slash? A. No, . . . This is an element that we don’t know.” (Italics mine.)
(3) Assuming arguendo that the slash did further “the spread of fire”, which originated on the nonhazardous farm land, it was because the fire trails that the state supervisor had approved were not adequate. In this regard Mr. Poe further testified: “ . . . the trail wasn’t wide enough to contain it and it just ran right across it.” The adequacy of a fire trail to prevent the spread of fire is a determination which must be made by the state supervisor. Mr. Adams stood ready, and willing to construct the fire trails as the state supervisor should direct. The supervisor’s agent inspected the fire trails and approved them. If a fire hazard was created by the slash on the Loertscher land, it was a condition which the state had expressly authorized.
(4) The statute provides that, where a known fire hazard exists, “. . . the supervisor may summarily cause it *349to be abated and the cost thereof may be recovered from the owner or person responsible therefor, ...” RCW 76.04.370. The supervisor had full knowledge of the condition on the Loertscher land, from 1958 to 1960, and his failure to abate it establishes that the state supervisor did not consider it to be such a condition “likely to further the spread of fire.”
Since there was no proof of causation, and no proof that an actionable condition “likely to further the spread of fire” was created by the conduct of the respondents, the trial court correctly concluded that the state had failed to establish its claim.
The majority rely upon State v. Anacortes Veneer, Inc. (1961), 57 Wn. (2d) 886, 360 P. (2d) 341. In Anacortes, supra, the fire started by the logging operations in the slash area. In the instant case the fire started from an unknown cause in the adjacent agricultural lands. In the instant case we are concerned with the sufficiency of the evidence to establish liability for a condition which the state supervisor had approved as not “likely to further the spread of fire” and his failure to exercise his duty to abate the condition from 1958 to 1960 if he believed it to be a condition “likely to further the spread of fire”. The issues raised in Anacortes, supra, are not apropos to the issues raised in the instant case.
In State v. Canyon Lbr. Corp. (1955), 46 Wn. (2d) 701, 284 P. (2d) 316, we said: .. .
“. . . No one is held responsible under the statute unless they create the hazard, or suffer it to remain upon their property.” (Italics mine.)
Responsible means answerable as the primary cause (Webster’s New International Dictionary, Second Ed., Unabridged) . Every forest in its natural condition is full of broken branches, small cones, needles, new growth, unmer-chantable timber and pitch which are highly inflammable. It is not this condition for which responsibility attaches. The evidence conclusively established that the high wind caused the fire to spread through the natural forest debris to the tops of the small non-merchantable timber and that *350these two conditions, for which the respondents were not responsible, caused the fire to “leap” across the state approved fire barriers.
The state failed to prove that the slash condition was the primary cause or any cause of the spread of the fire across the state approved fire barriers. To assess the $10,512.02 fire fighting costs to these respondents is to fix liability without fault. Liability without fault should not be the policy of this court. Nor, in my opinion, was such intended to be the policy of the legislature when the slash statute was enacted.
For the reasons stated, I would affirm the judgment of the trial court.