
    (No. 631
    LENA J. WEBB, Claimant, v. STATE CONSERVATION COMMISSION, Respondent
    
      Opinion filed November 10, 1948
    
    Appearances:
    
      Claimant, pro se.
    
    
      W. Bryan Spillers, Assistant Attorney General, for the state.
   MERRIMAN S. SMITH, Judge.

On the night of December 5, 1947, there was a forest fire on the property of Lena J. Webb, which property was located at Ramage, Boone county, West Virginia. A Mr. Paxton, an employe of the conservation commission, accompanied by approximately ten teen-age boys, went to the scene of the fire. However, since there was another fire of greater magnitude in this area, Mr. Paxton left the Webb property and went to give his attention to the other fire, the boys remaining to prevent the spreading of the fire on claimant’s property. By this time it was apparent that the fire had about spent itself in the drain or hollow some distance away from any buildings on claimant’s farm. Several hundred yards from the fire claimant had a tobacco barn, filled with corn fodder. Also there was fodder stacked around the outside of the barn, and there were four mine car wheels near the barn. During the night the boys rolled the four mine car wheels away, tramped down the fodder and burned some of it to the extent that it was of no further use or benefit to the said owner.

The statute provides that in preventing the spreading of a fire the state fire fighters have the right to burn fences and plow ground. However, there is no statute, or rules and regulations of the conservation commission that gives anyone the right to willfully destroy the property of another. In the instant case the four mine car wheels and fodder were destroyed and rendered useless to the rightful owner. This was a willful taking or destroying of the property of the claimant by employes of the state conservation commission, who were employed for the express purpose of protecting the property of the claimant. From the evidence, they greatly exceeded their authority and the state of West Virginia is morally bound to reimburse the legal owner for the depredation and destruction of such property. Therefore an award of thirty-five dollars ($35.00) is hereby granted to claimant, Lena J. Webb.  