Surocco v Geary,
3 Cal 69; 58 Am Dec 385
(Jan 1853)

Defendant Geary was alcalde of the city of San Francisco, and in June, 1849, caused the house of plaintiff to be blown up with gunpowder for the purpose of preventing the spread of a fire then raging in the city. It appeared at the trial, upon the question of the necessity of blowing up the building, that the fire reached the site of the building a few minutes after its destruction, and that unless it had been so destroyed it would surely have been consumed. The court below found for plaintiff, and defendant took this appeal.

386Dwinelle and Holt, for the appellant.

No brief on file for the respondent.

By Court, MURRAY, C.J.

This was an action commenced in the court below to recover damages for blowing up and destroying the plaintiff's house and property during the fire of the twenty-fourth of December, 1849.

Geary, at that time alcade of San Francisco, justified, on the ground that he had authority, by virtue of his office, to destroy said building, and also that it had been blown up by him to stop the progress of the conflagration then raging.

It was in proof that then fire passed over and burned beyond the building of the plaintiffs, and that at the time said building was destroyed, they were engaged in removing their property, and could, had they not been prevented, have succeeded in removing more if not all of their goods.

The cause was tried by the court sitting as a jury, and a verdict rendered for the plaintiffs, from which the defendant persecutes this appeal under the practice act of 1850.

The only question for our consideration is, whether the person who tears downs or destroys the house of another in good faith, and under apparent necessity, during the time of a conflagration, for the purpose of saving the buildings adjacent and stopping its progress, can be held personally liable in an action by the owner of the property destroyed.

The point has been so well settled in the courts of New York and New Jersey that a reference to these authorities is all that is necessary to determine the present case.

The right to destroy property to prevent the spread of a conflagration as been traced to the highest law of necessity and the natural rights of man, independent of society or civil government. "It is referred by moralists and jurists to the same great principle, which justifies the exclusive appropriation of a plank in a shipwreck, though the life of another be sacrificed; with the throwing overboard goods in a tempest for the safety of a vessel; with the trespassing upon the lands of another to escape death by an enemy. It rests upon the maxim, Necessitas inducit privilegium quoad jura privata."

The common law adopts the principles of the natural law, and places the same justification of an act otherwise tortuous precisely on the same ground of necessity: See American Print Works v Lawrence, 1 Zab. 248, and the cases there cited.

This principle has been familiarly recognized by the books 387from the time of the Case of the Prerogatives of the King in Sabpeter, 12 Co. 13; and the instances of tearing down houses to prevent a conflagration, or to raise bulwarks for the defense of a city, are made use of as illustrations, rather than as abstract cases, in which its exercise is permitted. At such times the individual rights of property give way to the higher laws of impending necessity.

A house or fire, or those in its immediate vicinity, which serve to communicate the flames, becomes a nuisance which it is lawful to abate, and the private rights of the individual yield to the considerations of general convenience and the interests of society. Were it otherwise, one stubborn person might involve a whole city in ruin by refusing to allow the destruction of a building which would cut off the flames and check the progress of the fire, and that too, when it was perfectly evident that his building must be consumed.

The respondent has invoked the aid the constitutional provision which prohibits the taking of private property for public use without just compensation being made therefor. This is "not a taking of private property for public use," within the meaning of the constitution.

The right of taking individual property for public purposes belongs to the state by virtue of her right of eminent domain, and is said to be justified on the ground of state necessity; but this is not a taking or a destruction for a public purpose, but a destruction for the benefit of the individual or the city, but not properly of the state.

The counsel for the respondent has asked, Who is to judge of the necessity of the destruction of property?

This must, in some instances, be a difficult matter to determine. The necessity of blowing up a house may not exist, or be as apparent to the owner, whose judgment is clouded by interest and the hope of saving his property, as to others. In all such cases, the conduct of the individual must be regulated by his own judgment as to the exigencies of the case. If a building should be torn down without apparent or actual necessity, the parties concerned would undoubtedly be liable in an action of trespass. But in every case the necessity must be clearly shown. It is true, many cases of hardship may grow out of this rule, and property may often in such cases be destroyed, without necessity, by irresponsible persons, but this difficulty would not be obviated by making the parties responsible in every case, whether the necessity existed or not.

388The legislature of the state possess the power to regulate this subject by providing the manner in which buildings may be destroyed, and the mode in which compensation shall be made; and it is to be hoped that something will be done to obviate the difficulty, and prevent the happening of such events as those supposed by the respondent's counsel. In the absence of any legislation on the subject, we are compelled to fall back upon the rules of the common law.

The evidence in this case clearly establishes the fact that the blowing up of the house was necessary, as it would have been consumed had it been left standing. The plaintiff s can not recover for the value of the goods which they might have saved; they were as much subject to the necessities of the occasion as the house in which they were situate; and if in such cases a party was held liable, it would too frequently happen that the delay caused by the removal of the goods would render the destruction of the house useless.

The court below clearly erred as to the law applicable to the facts of this case. The testimony will not warrant a verdict against the defendant.

Judgment reversed.

HEYDENFELDT, J., concurred.

DESTRUCTION OF PROPERTY IN CASE OF FIRE.--"The rights of property must in many cases be made subservient to the public welfare. On this ground rests the right of public necessity which is recognized as part of our law. In the exercise of this right houses may be razed to prevent the spread of a conflagration, and no action lies at common law by the individual who sustains injury thereby:" Note to Hale v Lawrence, 1 Zab 714, 729; 47 Am Dec 190, note 207 (NJ, July 1848). Nor are municipal corporations liable for the acts of their officers in tearing down buildings for the above purpose: Id. In this note the question of statutes authorizing destruction of property in case of fire is discussed. See also City Fire Ins Co v Corlies, 21 Wendell 367; 34 Am Dec 258 (NY, July 1839) (mayor blew up building to prevent fire spreading). The case of American Print Works v Lawrence, 1 Zab 248; 3 Zab 9 aff'd 3 Zab 590; 57 Am Dec 420 (NJ, Nov 1851), is a leading authority upon this question, and harmonizes with the principal case.

"No one has a right to have his property burn, if thereby the property of others is endangered. The right to extinguish fires . . . is a part of the police power. . . . It may be exercised 327not only without the consent of the owner of the property on fire, but against his will." Wamsutta Mills v Old Colony Steamboat Co, 137 Mass 471, 473; 50 Am Rep 325, 326-327 (5 Sep 1884).

See also additional references, e.g.,
  • Stone v Mayor of N. Y., 25 Wend 157; 14 Common Law Rep 802 (1840)

  • Russell v Mayor, etc., of N. Y., 2 Den 461, 475; 17 Common Law Rep 192, 197 (1845) (cases involving the 1835 New York fire wherein the Mayor had buildings blown up ahead of the advancing flames, for a fire break to head off the fire, and was upheld in such fire-halting actions; the pertinent public safety principle covers not only fires, but also "pestilential diseases, or any other threatened and blighting evil")
  • Bowditch v Boston, 101 US 16, 18; 25 L Ed 980 (5 April 1880) said: "At the common law everyone had the right to destroy real and personal property, in cases of actual necessity, to prevent the spreading of a fire, and there was no responsibility on the part of the destroyer, and no remedy for the owner. . . . There are many other cases besides that of fire, some of them involving the destruction of life itself, where the same rule is applied. 'The rights of necessity are a part of the law.' Respublica v. Sparhawk, 1 Dall., 357, 362 [1 L Ed 174, 177 (Pa, 1788)]; see also Mouse's Case, 12 Rep. (Coke), 63 [81 Eng Rep 341 (1675)]; 15 Vin., tit. Necessity, sec. 8; Cast Plate Co. v. Meredith, 4 T.R., 794; Am. Print W. v. Lawrence, 1 Zab., 248; 3 Zab., 591 [57 Am Dec 420 (NJ, 1851)]; Stone v. Mayor of N. Y., 25 Wend., 173 [14 Common Law Rep 802 (1840)]; Russell v. Mayor, etc., of N. Y., 2 Den., 461 [17 Common Law Rep 192 (1845)]."

    TTS of course is a matter of smokers burning property, with a "natural and probable consequence" being injuries to, and deaths of, others, a part of the tobacco holocaust. Smoking is itself a recognized mental disorder, an infectious disease spreading to others.

    Destruction in other circumstances of potential harm has also been upheld:
  • United States v Caltex, 344 US 149; 73 S Ct 200; 97 L Ed 157 (1952) (destruction of petroleum storage facilities ahead of Japanese conquest of Philippines, to falling them falling into enemy hands)

  • Harrison v Wisdom, 54 Tenn 99 (1872) (destruction of whiskey and liquors ahead of military occupation)
  • Destruction of whatever is currently or potentially causing harm, clearly applies under more circumstances than merely fires. Examples:
  • Putnam v Payne, 13 Johns (NY) 312 (1816) (destruction of mad dogs)

  • Seavey v Preble, 64 Me 120 (1874) (destruction of wallpaper in bedrooms of persons with small pox)

  • Miller v Schoene, State Entomologist, 146 Va 175; 135 SE 813 (1927) aff'd 276 US 272; 48 S Ct 246; 72 L Ed 568 (20 Feb 1928) (destruction of diseased cedar trees, pursuant to Virginia law making it "unlawful for any person to 'own, plant or keep alive and standing' on his premises any red cedar tree which is or may be the source or 'host plant' of the communicable plant disease known as cedar rust, and any such tree growing within a certain radius of any apple orchard is declared to be a public nuisance, subject to destruction.") (This is an apt solution to the tobacco problem, identifying the plants as a source of or host to human disease, thus a public nuisance to be destroyed.)
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    The bottom line principle is that "every one ought to bear his loss to safeguard the life of a man," Ploof v Putnam, 81 Vt 471; 71 A 188, 189 (1908). "The doctine of necessity applies with special force to the preservation of human life. One assaulted and in peril of his life may run through the close of another to escape from his assailant. 37 Hen VII, pl. 26. One may sacrifice the personal property of another to save his life or the lives of his fellows."