Wednesday, April 26, 2017

Liability Associated With A Range Fires and Controlled Burns


The range fires in Kansas, Oklahoma and Texas earlier this year have generated numerous questions.  I have addressed several of those in earlier posts.  Another one is on the table for discussion today and concerns associated liability issues.  In particular, whether a landowner is liable for smoke damage to others and whether there is any obligation to inform people that might be affected by the smoke. 

Range Fire or Controlled Burns?

It is important to distinguish between a true range fire and a controlled burn.  For a range fire that starts by some external event that the landowner has no control over or involvement in, there simply is no liability to others.  This is the situation for the recent range fires in the Southern Plains.  It’s just one of those situations that unfortunately occurs and landowners try their best to contain it and deal with it.  The outpouring of support from farmers and ranchers across the country was heartening to see. 

Many areas of Kansas and elsewhere engage in controlled burns of pasture.  For controlled burns, each state has rules and regulations what govern the procedures to be followed.  Those rules may include a duty to notify adjoining landowners and local authorities before starting a burn.  It is important to understand the rules and follow them closely to avoid fines and other penalties that could apply. 

Smoke Drift As a Trespass?

For a controlled burn, can smoke drift onto another’s property constitute a trespass and make the person conducting the burn liable for any resulting damages?  Trespass is the unlawful or unauthorized entry upon another person's land that interferes with that person's exclusive possession or ownership of the land.  The tort of trespass is conceptually related to the tort of nuisance, but a nuisance is an invasion of an individual's interest in use and enjoyment of land rather than an interference with the exclusive possession or ownership of the land.  The law governing trespass to land is particularly important to farmers and ranchers because real estate plays a significant role in the economic life of the typical farmer or rancher.

A trespass consists of two basic elements: (1) intent and (2) force.  Most jurisdictions do not impose absolute liability for trespass.  Instead, proof of intentional invasion, reckless or negligent conduct, or inherently or abnormally dangerous activity is required.  In these jurisdictions, proof of intent to commit a trespass is not necessary.  Rather, the plaintiff must show that the trespasser either intended the act that resulted in the unlawful invasion or acted so negligently or in such a dangerous manner that willfulness can be assumed as a matter of law.  A minority of jurisdictions still follow the common law approach holding an individual liable for any interference with the possession of land, even if that interference was completely unintentional.  In these jurisdictions, it is immaterial whether the act was done accidently, in good faith, or by mistake.

Trespass also involves an element of force.  Liability for trespass may result from any willful act, whether the intrusion is the immediate or inevitable consequence of a willful act or of an act that amounts to willfulness.

At its most basic level, a trespass is the intrusion on to another person's land without the owner's consent.  However, many other types of physical invasions that cause injury to an owner's possessory rights abound in agriculture.  These types of trespass include dynamite blasting, flooding with water or residue from oil and gas drilling operations, erection of an encroaching fence, unauthorized grazing of cattle, or raising of crops and cutting timber on another's land without authorization, among other things.  In general, the privilege of an owner or possessor of land to utilize the land and exploit its potential natural resources is only a qualified privilege.  The owner or possessor must exercise reasonable care in conducting operations on the land so as to avoid injury to the possessory rights of neighboring landowners.  That can include controlled burn activities and the resulting smoke drift.  For example, in Ream v. Keen, 112 Or. App. 197, 828 P.2d 1038 (1992), smoke from field burning drifted to an adjoining home and the neighbor sued for soot removal costs and emotional and physical damages.  The trespass claim was submitted to a jury and the appellate court ultimately determined that the elements of an intentional trespass had been established and sent the case back to the trial court for a determination of damages.

As in any trespass case, the outcome turns on the facts of each case.  Each case is different.

Is A Controlled Burn an Unnatural Land Use?

“Unnatural” land uses are typically governed by a rule of strict liability.  That means that intent doesn’t matter.  If damage occurs to others, there is liability.  The strict liability approach for “non-natural” land use activities was applied in an 1868 English case.  Rylands v. Fletcher. L.R. 3 H.L. 330 (1868).  In Rylands, the defendants hired an independent contractor to construct a reservoir on their property.  When the reservoir was filled up, water broke from it and flowed into abandoned mine shafts on the property, and then flooded adjacent mine shafts owned by the plaintiffs.  The defendants themselves were not aware of the abandoned shafts, and were therefore not negligent (although the contractor probably was).  After the lowest court denied liability, the case came before the Exchequer Chamber, in effect an intermediate appeals court.  The court reversed, holding that there was liability because “...the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and if he does not do so, is prima facie answerable for all the damage which is the natural occurrence of its escape.”  The case then went to the House of Lords, the final appellate tribunal. The holding of the Exchequer Chamber was affirmed, but was significantly limited.  Liability existed because, the court said, the defendants put their land to a “non-natural use for the purpose of introducing [onto it] that which in its natural condition was not in or upon it”, i.e., a large quantity of water.  If, on the other hand, the court said, the water had entered during a “natural use” of the land, and had then flowed off onto the plaintiff's land, there would have been no liability.

Initially, American courts frequently misconstrued the Ryland's decision and purported to reject it.  They focused on the Exchequer Chamber version, which would have imposed liability for escaping forces even where the land is put to a natural use.  Eventually, however, the vast majority of American courts accepted at least the practical result of Rylands, even if not the case by name. 

Today, the rule has been extended to include most activities that are extremely dangerous. However, in Koger v. Ferrin, 926 P.2d 680 (Kan. Ct. Ap. 1996), the court refused to apply a strict liability rule in a situation involving the spread of a fire that was not intentionally started.   In an important passage, the court stated the following:

“In Kansas, farmers and ranchers have a right to set controlled fires on their property for agricultural purposes and will not be liable for damages resulting if the fire is set and managed with ordinary care and prudence, depending on the conditions present [citation omitted].  There is no compelling argument for imposing strict liability on a property owner for failing to prevent the spread of a fire that did not originate with that owner or operator.  Because the essential facts of this case are undisputed, as a matter of law, the doctrine of strict liability is not applicable under the facts presented.”


Liability for smoke damage from fires depends on the facts and circumstances surrounding the fire.  For controlled burns, carefully following any applicable rules and regulations will go a long way to eliminating liability for any resulting damages. Range fires typically don’t lead to personal liability issues.

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