TOWN OF FREETOWN vs. NEW BEDFORD WHOLESALE TIRE, INC., & others. [Note 1]

BRAUCHER, J. The plaintiff town seeks to recover from the defendants its cost of fighting a fire on land of the defendants corporation. It claims damages on the basis of common law tort liability for negligence or misrepresentation and on the basis of G. L. c. 266, Section 8, and G. L. c. 111, Section 145. The complaint was dismissed in the Superior Court under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), and we transferred the plaintiff's appeal to this court on our motion. We affirm the judgment for the defendants.

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The complaint contained two counts. In the first the town alleged that the defendants had negligently dumped some 750,000 used tires on land in the town, violating G. L. c. 111, Sections 143 & 150A, and creating a nuisance and a fire hazard, and that as a result the town fire department was unable to inspect the premises properly and unable to extinguish promptly a fire that occurred on the premises. As a result the town "incurred greater expense than usual and necessary" in extinguishing and controlling the fire. The second count added an allegation that the defendants "falsely and maliciously with intent to defraud, mis-stated to the Board of Health . . . and the Board of Selectmen the proposed use and scope of operations at the site," and that as a result the town boards could not take proper precautions.

There seems to be no authority for common law recovery by a town of its expenses in fighting a fire. See People v. Wilson, 240 Cal. App. 2d 574, 576 (1966); Portsmouth v. Campanella & Cardi Constr. Co., 100 N. H. 249, 253 (1956); Howard v. Soo Line R.R., 63 Wis 2d 500, 503 (1974); Allenton Volunteer Fire Dep't v. Soo Line R.R., 372 F. Supp. 422, 423 (E. D. Wis. 1974); Annot., 90 A. L. R. 2d 873 (1963). No claim is made for fire damage to town property of a type that would give rise to damage liability to a private owner for negligence or nuisance. G. L. c. 111, Section 145. See Dartmouth v. Silva, 325 Mass. 401, 404 (1950); Hanifin v. C & R Constr. Co., 313 Mass. 651 (1943); cf. United States v. Chesapeake & O. Ry., 130 F .2d 308, 310 (4th Cir. 1942) (expense of protecting public property from advancing fire). Expense incurred by the town in extinguishing a fire on private land stands on a different footing. See State v. Boston & Me. R. R., 99 N. H. 66, 71 (1954). Once a town establishes a fire department under G. L. c. 48, Section 42, as amended by St. 1973, c. 1048, Section 1, the fire chief has "charge of extinguishing fires in the town and the protection of life and property in case of fire." Safeguards against fire are maintained "for the benefit of the public and without pecuniary compensation or emolument." Tainter v. Worcester, 123 Mass. 311, 316 (1877).

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Under these authorities the right of the town to recover firefighting expenses depends on statute. See, e.g., G. L. c. 48, Section 59A, providing for a written agreement for reimbursement in case of aid to another municipality; G. L. c. 148, Section 5, abatement of fire hazard at owner's expense on twenty-four hour notice. Such statutes have generally been strictly construed. See United States v. Burlington N., Inc., 500 F. 2d 637, 639 (9th Cir. 1974); State v. California Or. Power Co., 225 Or. 604, 612 (1961). The town argues that G. L. c. 266, Section 8, as appearing in St. 1958, c. 526, Section 2, provides for liability in the present case, but the complaint lacks the necessary allegation that the defendants set or increased "a fire upon land of another " or that they suffered any fire upon their own land "to extend beyond the limits thereof whereby the woods or property of another are injured." See State Forester v. Obrist, 237 Or. 63, 67 (1964). Thus, the complaint fails to state a claim upon which relief can be granted.

Judgment affirmed.