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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 per 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

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

do pass.

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 Claims 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 staried 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

5 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 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 to 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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attached, which exhibit A indicates leaves, grasses, dead twigs, and small bushes within 15 feet of the still not burned; and this area of unburned woodland continues from this point to within a few feet of the burning operations, as indicated in exhibits A and B on up to the roadway shown in the left-hand corner of the picture marked "Exhibit D.” This area in exhibit D is designated as "Area A.Area A on exhibit D is designated by area A on exhibit A, which is along the sky line at the top of the hill. It appears from the exposures taken by the Government engineers that they did not photograph this area at all, which is the area designated on the drawing as south of the hollow and the line running north and south with the roadway. The ash heaps in the foreground of exhibits A and B are the Government burning operations, and the area cleared and burned is clearly indicated on both exhibits, and the area immediately up-hill from the still shows in both exhibits that no fire had burned over this area, and in exhibit B the log lying up-hill in a line from the whisky still points directly to the site of the burned cabin in exhibits A and B.

Exhibit C is taken at a point marked by arrow along Hurricane Creek designated as the Government burning on the 6th of March. The ditch in exhibit C is the slough or hollow just northeast of the arrow, and the ashes in the foreground is indicative of the log heap that had been burned. This picture indicates the end of the clearing operations of the Government and the proximity to the burnings to the area not cleared. The area above the Government clearing as shown in this picture shows clearly that this area was recently burned and the site of the cabin destroyed by fire is along the sky line and to the left in this picture. The general direction that the camera is facing in this picture is toward the territory photographed in exhibit A. In accordance with the several copies of affidavits hereto attached of employees of the Government, namely: Amos Naramore, Willie Smith, Walter Smith, and Bud Naramore, this area was burning Saturday night, the date the fire destroyed the cabin, and Sunday and Monday the entire area was covered with burning chunks of wood, stumps, trees and bushes, which were smoking and burning even Monday morning; and that none of this area shown by roll A, exposure 4, had any indications of a recent fire but said affidavits positively state that this area was burned 3 or 4 days prior to Saturday March 6.

CONCLUSION Copies of the affidavits, together with the several pictures marked “Exhibits A, B, C, and D,” clearly show that the fire broke over from the burning operations of Saturday, March 6, when no watchman was present at the burning. That the area which the Government claims the fire spread from had had no fire in that area at least for a period of time at least 3 days before the burning operations of March 6; that the whisky still was not in operation on the Saturday night the fire destroyed this cabin, nor had been operated for as much as a week prior to said burning; that the area which most likely could have burned over by a fire starting from the still was intact and not burned over as is conclusively shown by the photograph marked "Exhibit A and B,” nor can any satisfactory explanation be given why this area should not have burned if the fire had spread as is claimed by the Government. This claim, which the photographs designate as A and B, is absolutely impossible, and too, the whisky still as well as the area along the hollow for a considerable distance had already been cleared of all debris that was inflammable, because that was the area which was to be flooded, and the purpose of the clearing was to eliminate such material that would burn. Besides the eyewitness that testified in the affidavit that the area in the background of exhibit C was being burned over Saturday night and the several witnesses testifying of the smoking and burning logs, sticks, and twigs and grasses burned, Sunday and Monday, indicate that the fire spread from these burning operations directly.

Claimants believe that if given an opportunity for the passage of this bill that conclusive proof can be given to the Court of Claims of the United States that the loss sustained by claimants resulted directly from the burning operations of the Government engineers on the 6th of March 1937.

(Prepared and submitted by Lipscomb & Lipscomb, attorneys at law, Bessemer, Ala., attorneys for claimants.)

BIRMINGHAM, ALA., March 25, 1937. Re: Claim for damages for R. Brinskelle and Charlie Melcher for destruction by

fire of their cabin located near Bell's Camp in the vicinity of the junction of

Hurricane Creek with the Warrior River, in Jefferson County, Ala. UNITED STATES ENGINEERS,

Washington, D. C. UNITED STATES ENGINEERS,

Mobile, Ala. Mr. John L. YOUNG,

Jackson Building, Birmingham, Ala. GENTLEMEN: On March 10, 1937, you were advised of the claim of Mr. R. Brinskelle for damages on account of the loss of the house by fire, which occurred on or about March 6, 1937, as a result of fire set out by crews working under the United States Engineers in connection with clearing the banks of the Warrior River in the vicinity of the junction of Hurricane Creek with said river, in Jefferson County, Ala.

Your local representative, Mr. Young, called by this office after receipt of said letter, and submitted sketches setting forth the contention that the house burned as a result of fire in a “wildcat" still located some 500 feet south of the house in question.

Mr. Brinskelle has made a careful check of the facts set forth on the sketch in question, and finds that the person making the sketch has been grossly misled as to the facts in the case.

The true facts which make the error of the sketch apparent are set forth in the attached affidavit enclosed you herewith as a supplement to the claim made on March 10, 1937, and/or as the claim in the first instance for the loss and damage in question.

It is respectfully submitted that the facts as set forth by Mr. Brinskelle are true, and that a check will prove them to be true, and that he should be compensated farthwith for the fire and resultant loss and damage, without the necessity of filing claim in the Court of Claims for the recoupment of his loss and damage. Very truly yours,

W. S. PRITCHARD.

WAR DEPARTMENT,
UNITED STATES ENGINEER OFFICE,

Mobile, Ala., March 25, 1937. Subjunt: Burning of house on Black Warrior River, at mouth of Hurricane Creek. To: l'he Chief of Engineers, United States Army, Washington, D. C. (Through

the division engineer, Gulf of Mexico Division, New Orleans, La.)

1. There is enclosed herewith a letter, dated March 10, 1937, from Mr. William S. Pritchard, an attorney at Birmingham, Ala., addressed to the United States Engineers, Washington, D. C., United States Engineers, Mobile, Ala., and Mr. J. L. Young, Jackson Building, Birmingham, Ala., in which it is claimed that a cabin belonging to R. Brinskelle and Charlie Melcher was destroyed by fire on Saturday, March 6, 1937, as a result of brush fires left burning by a clearing crew employed by this office in connection with the clearing of lands to be flooded by crest gates on dam No. 17, Black Warrior River, Ala.

2. The burning of the cabin was investigated on Monday, March 8, 1937, by John L. Young, principal clerk, of this office, who is in charge of the settlement of land damages growing out of the construction of lock and dam No. 17 and the 12-foot crest gates on said dam. Copy of this employee's report is enclosed. On March 9, 1937, Mr. J. R. Thrasher, assistant engineer in charge of the United States engineer suboffice at Tuscaloosa, Ala., also investigated this fire. His report, contained in a first endorsement on Mr. Young's report, is also enclosed.

3. The evidence indicates conclusively that the fire which destroyed the cabin originated in a slough approximately one-half mile northwest of the area which was being cleared by Government employees; that the fire started from a whisky still, which was operated on the day of the fire, traveled up the slough onto the hill where the Brinskelle cabin was located and then down the other side of the hill to the location where employees of this office had been clearing. The evidence further shows that the only fires started by Government employees on Saturday, March 6, 1937, were several fires that had not burned out on Friday, March 5. These fires were stirred up and had died out at quitting time on Saturday.

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