Surocco v. Geary
Before: Murray
Synopsis
A person who tears down 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, is not personally liable in an
v*--a.ction by the owner of the property destroyed.
A house on fire, or those in its immediate vicinity, which serve to communicate the flames, is a nuisance which it is lawful to abate, and the private rights of the individual yield to considerations of general convenience and the interests of society.
The constitutional provision, that requires payment for private property taken for public use, does not apply in such case. This right belongs to the State, in virtue of her right of eminent domain.
The property thus taken was not a taking for public purposes, but a destruction for individual benefit, or for the city, and not for the State.
The necessity for such act of destruction must be clearly shown. But in all such cases the individual must be regulated by his own judgment; and if done without actual or apparent necessity, he is liable in trespass.
The plaintiff cannot recover for the value of the goods in the house which he might have saved—these are equally liable to the necessities of the occasioa with the house in which they are placed.
Murray, Chief Justice, delivered the opinion of the Court. Heydenebldt, Justice, concurred.1
This was an action, commenced in the court below, to recover damages for blowing up and destroying the plaintiffs’ house and property, diming the fire of the 24th of December, 1849.
Geary, at that time Alcalde of San Francisco, justified, on the ground that he haebauthoritv. fr? virtue-of-h-is-effice. to destroy said building, and also that it had been blown up hv him to stop the progress of the conflagration then raging.
It was in proof, that the 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 prope'rty, and could, had they not been prevented, have succeeded in re'-, moving 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 prosecutes this appeal under the Practice Act of 1850.
The only question for our consideration is, whether the person who tears down 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^ personalia liable in an action by the owner of the property destroyed.
[73]This point has been so well settled in the courts of New York and New Jersey, that a reference to those authorities is all that is necessary to determine the present case.
The right to destroy property, to prevent the spread of a conflagration, has been traced to the highest law of -necessity, and the naturaVrights 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 quod jura privata.”
The common law adopts the principles of the natural law, and places the justification of an act otherwise tortious precisely pn the same ground of necessity. (See 1st Zabriskie, American Print Works v. Lawrence, and the cases there cited.)
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