State v. Anacortes Veneer, Inc.

Finley, C. J.

— On August 5, 1952, a fire started on timber land owned by one of the respondents, and spread to timber land owned by two other respondents before it was brought under control. One of the respondent logging companies had logged the land on which the fire started and had left slash (i.e., debris consisting of branches, bark, roots, et cetera) lying on the ground. The other respondent logging company had logged, in a similar manner, the contiguous land to which the fire spread. The logging process, although pursued in compliance with all state regulations, had been conducted during a hot, dry period. Because of the weather conditions, it was then unlawful to burn the slash.

This action was brought by the state to recover the costs it incurred in fighting the fire. The basis of liability of the respondents is the “slash act,” RCW 76.04.370, which, in part, reads as follows:

“Any land in the state covered wholly or in part by inflammable debris created by logging . . . and which by reason of such condition is likely to further the spread of fire and thereby endanger life or property, shall constitute a fire hazard, and the owner thereof and the person responsible for its existence shall abate such hazard. If the state shall incur any expense from fire fighting made necessary by reason of such hazard, it may recover the cost thereof from the person responsible for the existence of such hazard or the owner of the land upon which such hazard existed . . . ”

*888The state interprets the statute to mean that all respondents should be held jointly and severally liable for the total cost to the state.

The respondents, arguing in support of the trial court’s judgment dismissing the action, assert that, inasmuch as they had no opportunity lawfully to abate the slash hazard after it was created by the logging operation (the trial court found that, apart from burning which was at that time unlawful, there was no practical way to remove slash from the area involved), application of the statute under these facts would deprive them of property without due process of law. We find this argument to be without merit.

In State v. Canyon Lbr. Corp. (1955), 46 Wn. (2d) 701, 284 P. (2d) 316, the respondent lumber company urged that RCW 76.04.370 violates the due process clauses of the state and federal constitutions by imposing liability upon those engaged in logging who either create a hazardous condition or who suffer a hazardous condition to remain upon their land. We rejected this argument and upheld the statute as a valid exercise of the state’s police power.

The underlying justification of the exercise of the state’s police power in the legislation here involved is that the logging business, dependent upon the manner of conducting operations or upon weather conditions, or a combination of the two factors, can be extremely dangerous to both life and property.

The logic or reasoning of the statute is explicit; i.e., that the safe conduct of logging operations is a responsibility and expense of those engaged in the business. There certainly is no specific language in the statute permitting respondents, or persons similarly situated, to escape liability for fire-fighting costs incurred by the state by explaining that they encountered practical or other difficulties justifying their failure to remove slash. It is of course quite clear that, if the danger to life and property is really significant, the state, under its police power, may require elimination of the danger, or it may impose upon those responsible for the danger an absolute duty to safeguard against it. In our opinion, the legislature has done just this as to costs of fire *889fighting in enacting the pertinent portion of RCW 76.04.370 without expressing therein any qualifications as to the liability of one who creates a slash fire hazard. The reasonableness of the statute is illustrated by the facts of the instant case. Respondents conducted their operations during a hot and dry season, when forest fires were especially likely to occur and would be more than usually dangerous, knowing that thereby the fire hazard which they would be powerless to abate would be continued if not increased. We hold that the respondents are liable to the state under RCW 76.04.370.

The extent of liability of the individual respondents is to be ascertained by reference to the statute. The person responsible for the hazard and the owner of the land on which it exists are liable to the state for its cost of “fire fighting made necessary by reason of such hazard.” (Italics ours.)

What fire-fighting costs were made necessary by which hazards, as defined by the statute, is purely a question of fact to be determined at trial. We may illustrate our concept of the operation of the statute by discussing a hypothetical situation (the present state of the record in the instant case does not inform us of the exact nature of the circumstances therein) which, we suspect, would frequently occur.

In cases where a slash hazard existed at the source of the fire and the circumstances were such that the fire would not have spread to surrounding areas had not slash remained on the originating tract, it would seem ordinarily to follow that all of the fire fighting would have been “made necessary by reason of such hazard.” In such cases, the owner of the land where the fire originated and the logging operator responsible for the existence of the hazard thereon would each be liable for the whole of the state’s fire-fighting costs. Pursuing our hypothetical situation, the extent of the liability of the owners of contiguous slash-covered land to which the fire spread, and of the operators who created and left slash on that land, would depend on other facts. Certainly, the costs of fighting the fire on their own land, or *890that logged by them, where a slash hazard was left, would ordinarily be attributable to such owners or operators. Further, however, it is conceivable that the fire might have spread from the land contiguous to the place of origin to still other land that would have been untouched but for the slash hazard on the contiguous land, thereby making necessary additional fire-fighting costs attributable to the hazards on both the land of origin and the contiguous land.

Under our view of the statute, it is quite possible for the costs of fire fighting on a given portion of the burned area to have been “made necessary” by more than one owner or more than one operator. On the other hand, it is conceivable that the existence of a slash hazard on certain land may have contributed little or nothing to the state’s fire-fighting costs because of the nature of the spreading of the fire, topographical characteristics and their effects on the mechanics of fire fighting, or other factors. These possibilities present questions of fact which may be summarized in the language of RCW 76.04.370: how much of the fire-fighting expense incurred by the state was made necessary by each of the various hazards?

The respondents have raised, in the presentation of their constitutional argument, the issue of the right to contribution among the parties if more than one should be held liable for certain of the costs. They assert as a general proposition that contribution is not available to joint tort-feasors. The state’s response is that it did not bring an action in tort, but sought to impose a purely statutory liability. The issue of a future right to contribution among the respondents, if any, after the state has received reimbursement for its fire-fighting costs, is not properly a part of the instant case, and we decline to undertake to answer it here. (We might point out that one side of the issue has been presented by the state, which has no particular interest in the respondents’ contribution rights inter se so long as it is paid, and the other side was presented by the respondents as a group, although their interests are potentially antagonistic.)

For the foregoing reasons, the trial court’s judgment of dismissal is reversed and the case is remanded with direc*891tions to proceed in accordance with the views expressed herein. The appellant will recover its costs on this appeal.

Mallery, Hill, Rosellini, and Hunter, JJ., concur.

Foster, J. did not participate.