A Colorado Territorial Law Rises from the Ashes
| Jurisdiction | Colorado,United States |
| Pages | 24 |
| Citation | Vol. 52 No. 9 Pg. 24 |
| Publication year | 2023 |
COLUMN: HISTORICAL PERSPECTIVES
A Sweep of Flame Through Colorado Springs," rang the headline in The Pueblo Chieftain the morning of October 2, 1898, announcing the destruction of the stately Antlers Hotel and much of downtown Colorado Springs.[1] "416 Fire on Track to Become One of Colorado's Largest Wildfires," warned The Durango Herald the morning of July 2, 2018.[2] What did these two fires—separated by 120 years—have in common? Both were claimed to have been started by nearby railroad operations. Also linking these two fires: Colorado's Railroad Fire Law—a legislative relic left over from the days of railway barons and Butch Cassidy. The law had lain mostly dormant for over a century until, per a Forest Service report, a coal-powered steam locomotive running the Durango & Silverton Narrow Gauge Railroad allegedly started the now-historic "416 Fire."[3] The 1898 Antlers Fire and the 2018 Durango 416 Fire became connected through time by law.
The History of Railroad Fire Laws
Steam engines helped lead the Industrial Revolution. Powered by burning coal, they turned water into pressurized steam, which energized a locomotive's pistons and turned its wheels. One risk they posed, however, was that hot ash and fiery embers from the coal were exhausted through the trains' smokestacks into the air and onto the surrounding land, including forests, prairies, farms, and sometimes towns. For their part in building America, railroads and their owners were largely forgiven for their cinders. But soon lawsuits followed the railroads west.
Railroad fire laws tracked the expansion of coal-fired railroads east from Massachusetts to California. As the US Supreme Court explained in 1897:
[T]he liability of the railroad company was not restricted to a building by the side of its road, which the very particles of fire emanating from the engines fell upon and kindled a flame in, but extended to a building across a street, set on fire by sparks wafted by the wind from the first building while it was burning ....[4]
The Court continued:
Railroad companies acquire large profits by their business. But their business is of such a nature as necessarily to expose the property of others to danger; and yet, on account of the great accommodation and advantage to the public, companies are authorized by law to maintain them, dangerous though they are, and so they cannot be regarded as a nuisance. The manifest intent and design of this [Massachusetts] statute, we think and its legal effect, are, upon the considerations stated, to afford some indemnity against this risk to those who are exposed to it, and to throw the responsibility upon those who are thus authorized to use a somewhat dangerous apparatus, and who realize a profit from it.[5]
The Colorado Supreme Court observed that these railroad fire laws sprang from the English common law: "By the ancient common law it was held that a person in whose house a fire originated, which afterwards spread to his neighbor's property and destroyed it, was forced to make good the loss . . . . Sic utere tuo, utalienum non loedas [sic]."[6] The Latin phrase used here by the Court expresses the common law maxim that "one must so use his own rights as not to infringe upon the rights of another."
Railroad Expansion Comes to Colorado
As railroads expanded west to the Colorado Territory in the late 1800s, so too did the inherent dangers of their operation—fires. Despite these dangers, however, railroads were critical to developing Colorado's economy, society, and infrastructure. From the late 1800s to the present, railroads have contributed significantly to Colorado's economy by transporting coal, oil, timber, and other natural resources; wheat, hay, livestock, and other farm and ranch produce; and miners, loggers, farm laborers, tourists, and other travelers. Over 2,600 miles of tracks crisscross Colorado, and the railroad industry and the businesses and residents it serves have a vital and significant economic impact on the state and its citizens.
Colorado recognized that a balance must be struck between the economic importance of railroads and the need to hold them accountable for the dangers they posed to surrounding communities due to the inevitable fires caused by their operation. That balance was struck through a quid pro quo between the railroads and Colorado's citizens. Railroads would be entitled to establish train lines and operate in Colorado, but they would be held strictly and absolutely liable for any and all damages caused by fires from their trains' operation.
Colorado's Railroad Fire Law
Before Colorado joined the Union in 1876, its territorial legislature adopted a Railroad Fire Law in its 1874 Session Laws. The law was reenacted in 1876 and slightly amended in 1887. All versions of the law effectively render railroads strictly liable for fires caused by their operations. The heart of the law states: "Every railroad company operating its line of road, or any part thereof, within this state shall be liable for all damages by fires that are set out or caused by operating any such line of road, or any part thereof, in this state, whether negligently or otherwise."[7]
The Antlers Fire and Its Aftermath
In the early morning of October 1, 1898, the "devastating 'Antlers Fire,' . . . burned a substantial portion of downtown Colorado Springs."[8] The fire started in a pile of trash underneath the Denver and Rio Grande platform at its freight depot and, carried by high winds, quickly burned out of control, destroying much of the central business district, including the historic Antlers Hotel. The fire "begat a significant number of lawsuits, in which insurance companies appeared as subrogees of their insureds."[9] The litigation dragged on for five years before being resolved.
The 1903 "Anti-Subrogation" Amendment
The Railroad Fire Law was amended in 1903 to preclude property owners from contractually or by subrogation assigning their right to recover under the statute to any insurer who may hold a policy on "the property so damaged or destroyed by fire."[10] Little legislative history exists today concerning the 1903 "anti-subrogation" amendment to the Railroad Fire...
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