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JUNE 6 (legislative day, May 28), 1940.--Ordered to be printed

Mr. SCHWARTZ, from the Committee on Claims, submitted the

following

REPORT

(To accompany S. 2880)

The Committee on Claims, to whom was referred the bill (S. 2880) conferring jurisdiction upon the Court of Claims to hear, determine, and render judgment on the claim of R. Brinskelle and Charlie Melcher, having considered the same, report favorably thereon with the recommendation that the bill do pass with the following amendment:

Strike out all after the enacting clause and insert in lieu thereof the following:

That jurisdiction is hereby conferred upon the United States Court of Claims to hear, determine, and render judgment on the claim of R. Brinskelle and Charlie Melcher for damages for loss of a fishing cabin located on Warrior River, Jefferson County, Ala., on or about March 6, 1937, because of fire allegedly caused by negligence of Government employees in connection with clearing operations along the banks of the Warrior River and its tributaries.

SEC. 2. Suit upon such claim may be instituted at any time within 1 year after enactment of this act and proceedings for the determination of such claim, appeals therefrom, and payment of any judgment thereon shall be in the same manner as in the cases over which such court has jurisdiction under section 145 of the Judicial Code, as amended.

This bill confers jurisdiction upon the United States Court of Claims to hear, determine, and render judgment on the claim of R. Brinskelle and Charlie Melcher for damages on account of the loss of a fishing cabin by fire on or about March 6, 1937, located on the Warrior River, Jefferson County, Ala.

Claimant's fishing cabin was located on the crest of a hill on the east side of Hurricane Creek near Warrior River, Jefferson County, Ala. To the northwest the hill slopes down to a hollow in which a whisky still was located. Southeast the bill slopes down into Chichester Slough.

Before and after the fire destroying claimant's cabin, employees of the Engineers Office of the War Department were burning brush and

S. Repts., 76–3, vol. 3— 44

per

growth along Hurricane Creek in clearing lands to be flooded by crest gates on dam No. 17, Black Warrior River, Ala. About March 1 the Government employees cleared the hollow northwest of claimant's cabin and conducted burning operations in the location of the whisky still. They then moved along the bank of the creek and by the 6th of March were burning in Chichester Slough southeast of claimant's cabin. By Sunday morning, March 7, claimant's cabin was burned to the ground.

The Birmingham station of the United States Weather Bureau reports the wind at 6 p. m., March 6, 1937, was 3 miles per hour from the northwest. At 6 p. m. March 7, 1937, it was reported 9 miles

hour from the south. Since the cabin was burned some time during the early evening or night of March 6 and since Birmingham is 29 miles from the camp, the wind direction reports are of little value in determining whether the fire started from Chichester Slough on the southeast, or from the hollow in which the whisky still was located on the northwest.

The night watchman was employed on the clearing project in connection with the burning operations until March 6. He did not work that day and hence was not on duty at the time the fire spread and destroyed claimant's cabin, but he went back to work Monday, March 8.

The problem in this case is an evidentiary one. Statements of Government employees indicate the fire destroying claimant's cabin started from fires used in connection with operation of the whisky still and was not attributable to Government employees in the burning in Chichester Slough. For this reason the War Department recommends against enactment of S. 2880. Evidence and proof submitted by claimant and other employees engaged in the burning operation indicate the fire started from logs left burning by Government employees in Chichester Slough.

Your committee believes this case is properly referable to the Court of Claims where the conflicting evidentiary questions can be judicially determined. It is, therefore, recommended that the bill do

pass. The following communications are appended hereto and made a part of this report.

*

WAR DEPARTMENT,

Washington, February 19, 1940. Hon. EDWARD R. BURKE, Chairman, Committee on Claims,

United States Senate, Washington, D. C. DEAR SENATOR BURKE: Reference is made to your letter of January 20, 1940, transmitting for report a copy of S. 2880, Seventy-sixth Congress, first session, a bill conferring jurisdiction upon the Court of Člaims to hear, determine, and render judgment on the claim of R. Brinskelle and Charlie Melcher.

The bill provides as follows: "* That jurisdiction is hereby conferred upon the United States Court of Claims to hear, determine, and render judgment on the claim of R. Brinskelle and Charlie Melcher for damages on accoun of the loss of a fishing cabin by fire on or about March 6, 1937, located on the Warrior River, Jefferson County, Alabama."

This Department has investigated every angle of the burning of the claimants' camp house. The first investigation of the fire was made on Monday, March 8, 1937, 2 days after the cabin was burned. The evidence from this and subsequent investigations indicates conclusively that the fire which destroyed the cabin originated in a slough approximately one-half mile north of an area which was being cleared by the Engineer Department. Information obtained as a result of the investigations points to the conclusion that the fire started from a whisky still in the vicinity and traveled from the still to the hill where the claimants' cabin was situated, and thence, downward to the Department's clearing operations. Official weather reports show that at the time the fire occurred, the wind was blowing from the locality of the still toward the cabin. A number of competent witnesses testified that the fires used in the clearing operations were out before the close of the working day on Saturday, March 6, 1937. An examination of the trees within the burned area, made on March 8, 1937, shows that the trees were badly burned on the side nearest the cabin indicating that the fire had traveled from the cabin toward the site of the clearing operations. An investigation made immediately after the fire occurred indicated that the still had been recently operated. It appears to be common practice by those operating “wildcat” stills to fire the woods nearby in order that revenue agents might not be able to locate the smoke emanating from fires used to operate stills.

In view of the foregoing, it is considered that the evidence obtained does not support the contention that the cabin was destroyed by the negligence of the employees of this Department and recommendation, therefore, is made that the measure be not enacted. Affidavits and correspondence relating to the claim, together with official report of the United States Weather Bureau, Birmingham. Ala., are inclosed for the information and consideration of the committee. Sincerely yours,

HARRY H. WOODRING,

Secretary of 'War.
IN RE: CLAIM OF R. BRINSKELLE AND CHARLIE MELCHER VERSUS UNITED

STATES GOVERNMENT, SENATE BILL S. 2880
Status: Before subcommittee of Senate for recommendation

STATEMENT OF CASE BY CLAIMANTS

The United States Engineer Corps Headquarters, Mobile, Ala., during the first part of the year 1937, was clearing and burning land on the Warrior River above lock 17 for the purpose of clearing such overflow land that would result from the raising of lock 17. In the clearing and burning operations of the engineers on the east bank of Warrior River at and near the north bank of Hurricane Creek during the night of March 6, 1937, fire spread from the burning operations to the adjacent woods, which fire extended to and destroyed the BrinkselleMelcher cabin, together with its contents.

FACTS AS STATED BY ENGINEER DEPARTMENT, AS CLAIMANTS UNDERSTAND IT

That the Government had burning operations on the north bank of Hurricane Creek on Saturday, March 6, 1937, at a point indicated by an arrow on the attached drawing; that the employees discontinued work at 11 a. m. on said date and left several log heaps burning well within the area cleared, and without any watchman. That the wind on the afternoon and evening of March 6 was blowing from north to south, that a small illegal whisky still was located about 500 feet northwest of the destroyed cabin in a hollow adjacent to Warrior River; and that during the night of March 6 fire spread from the operation of this whisky still in a northeastern direction, crossing a road at a point marked X on said road in accordance with attached drawing and extended along the east side of said road down to the destroyed cabin, and that the fire which destroyed the cabin did not spread from the Government burning operations, as indicated by the arrow on the drawing, but from the operation of the whisky still. The several pictures taken by the Army engineers are offered to prove this statement.

STATEMENT OF CLAIMANTS

That the Government clearing and burning operations on the north side of Hurricane Creek and the east side of Warrior River began Monday, March 1, 1937. That on the first 2 days of the week beginning March 1, an area adjacent to a small whisky still in a hollow leading off from the bank of Warrior River, about 450 feet northwest of the destroyed cabin, was cleared and burned. That during these clearing and burning operations of the Government fire broke over from the burning operations in the hollow where the whisky still was, as marked on the attached drawing, and burned in a northeasterly direction up to the road, as shown on said drawing. This burning was confined to a small area between the hollow and the roadway, and was put out by Amos Naramore. That all of the area south of the south boundary line of the hollow, as indicated on the drawing, down to Hurricane Creek, was not burned over on this operation, nor from the burning operations of March 6, at the time the cabin was destroyed by fire. A large area of this part of the hill is shown in attached exhibits A and B, which was taken on the 15th of April 1937, and that about Wednesday of the said week a shower of rain fell, washing away the ashes resulting from the burning of leaves, twigs, and sticks of wood. And that on the last 3 days of said week, to wit, 4th, 5th, and 6th of March, the Government forces began clearing and burning operations along the north bank of Hurricane Creek in the area around Chichester Slough, which clearing and burning operations are indicated by the broken lines along the bank of Hurricane Creek in accordance with attached drawing, and that on Saturday, March 6, the Government forces had several large log heaps burning in this area.

That at 11 a. m. all of the forces left with the said log heaps burning, and that the watchman, Willie Smith, was cut off leaving the burning operations without a watchman; that a strong wind was blowing from south to north and toward the Brinskelle-Melcher cabin from the burning operations, that the fire broke over from some of these log heaps during the late afternoon and a Government employee by the name of Mr. Edwards, who was foreman of the operations, returned to the burning operations late in the afternoon of March 6, and whipped out a fire that had spread from the burning operations on Hurricane Creek. This fire that was whipped out by Mr. Edwards broke over from the burning operations on Hurricane Creek. That the fire that destroyed the cabin broke over from these burning operations of Saturday, March 6, and burned over the area from the point where the arrow is marked on Government burning operations up past the cabin and along the east side of the road up and past the point where the cross mark is made on the highway with the notation "fire crossed here" and that the whisky still was not fired at any time during the 6 days preceding March 6, 1937.

CONFLICT OF EVIDENCE The Government contends that the fire that destroyed the cabin burned along the hollow, marked on the drawing, up to the point where the cross mark is made on the road and then over into the area east of the road and south and destroying the cabin. That this fire that started from the whisky still did not burn any area south of the hollow and west of the roadway; that all pictures taken by the Army engineers indicate following the trail of the fire from the whisky still up the hollow to the roadway then across the road south to the destroyed cabin and on to Hurricane Creek burning operations.

The claimants' statement is that, the fire which burned the leaves, twigs, and grasses between the hollow, as marked on the drawing, and the area designated by the Government's picture roll A, exposure No. 4, came from the burning operations of the 1st, 2d, and 3d of March, which burned up to the road and was put out by a witness, an employee of the Government by the name of Amos Naramore, and that the fire that destroyed the cabin and burned the area covered by the pictures taken by the Army engineers and designated on the drawing as roll A, exposures 5 and 6, and roll B, exposures 1, 2, 3, 4, 5, and 6, spread from the Government burning of Saturday morning, March 6, and broke over and burned this area, the cabin, and up to the roadway along the east side of the road from the point where Government roll A, exposure 4, was taken.

ARGUMENT OF FACTS ADVANCED BY CLAIMANTS The attached copies of affidavits of Amos Naramore, an employee of the Government; and Willie Smith, a nightwatchman for the Government at that time; and Bud Naramore, another employee, state that the burning operations along the hollow, indicated on the drawing, broke over and burned the area between the whisky still and the road at the top of the hill, and was put out by Amos Naramore the first part of the week ending March 6. That the whisky still was not operated any time from the 1st of March up to and including Monday morning, March 8. That had a fire broke over from the operations of the still, or for any other cause as suggested in a letter relative to operators of the illicit whisky still firing the woods tu escape detection, would have burned the area within 10 or 15 feet of the whisky still as is shown on pictures marked "Exhibits A and B,” which are hereto

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