
    John C. WENZEL and Zilpha L. Wenzel, husband and wife, Plaintiffs, v. UNITED STATES of America, Defendant.
    No. 2287.
    United States District Court D. Idaho, Central Division.
    Jan. 3, 1964.
    Calvin Dworshak, Wm. R. Padgett, Boise, Idaho, for plaintiffs.
    Sylvan A. Jeppesen, U. S. Atty., Robert E. Bakes, Asst. U. S. Atty., Boise, Idaho, for defendant.
   CHASE A. CLARK, Chief Judge.

This matter was tried before the Court without a jury at Moscow, Idaho. The matter was then submitted on briefs for final determination by the Court.

This action is brought under the Federal Torts Claims Act for alleged loss of market value of certain real property, allegedly sustained by plaintiff Wenzel when officers and employees of the United States Forest Service entered upon his lands for the purpose of fighting a forest fire, burning in the immediate area.

The Federal Torts Claims Act makes the United States liable in the same manner and to the same extent as a private individual under like circumstances.

The first question for the Court to consider is that raised by the Government’s defense that the United States is excused from liability based on the common law doctrine of “emergency and necessity”.

The Court feels that the test as to emergency and necessity is the test ordinarily used in tort cases: would it appear to be an emergency and of necessity to a reasonable prudent person under like or similar circumstances then and there existing.

This Court feels that the evidence here shows that the United States Forest Service officials acted as a reasonable prudent person would have acted under like or similar circumstances; that the immediate and imminent danger required the trespass and the doctrine of necessity protects the defendant from any damages which may have been inflicted upon the property of plaintiffs.

This makes it unnecessary for the-Court to pass upon the question of damages alleged by Plaintiffs, but the Court having heard the evidence as to damages was impressed by the fact that the plaintiffs suffered no damage but, in fact, benefitted by the building of the road by the Forest Service.

Counsel for Defendant may prepare .Findings, Conclusions and Judgment and -submit them in accordance with the rules ■of this Court.  