Surocco v. Geary
3 Cal. 69 (1853)
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Rule of Law:
Under the common law doctrine of necessity, a person is privileged to destroy the private property of another to stop the spread of a conflagration and is not personally liable for the value of the property destroyed, provided the destruction was done in good faith and under apparent necessity.
Facts:
- On December 24, 1849, a major fire was raging in San Francisco.
- The plaintiffs, Surocco, owned a house and goods located in the path of the conflagration.
- John W. Geary, the Alcalde of San Francisco, ordered the destruction of Surocco's building.
- Geary's stated purpose for destroying the building was to stop the progress of the fire and save adjacent buildings.
- At the time Geary ordered the destruction, Surocco was actively engaged in removing property from the building.
- Surocco alleged they could have saved more, if not all, of their goods had they not been prevented by the building's destruction.
- After Surocco's building was destroyed, the fire passed over its location and continued to burn property beyond it.
Procedural Posture:
- The plaintiffs (Surocco) filed an action in the court of first instance against the defendant (Geary) to recover damages for the destruction of their house and property.
- The case was tried by the court sitting as a jury.
- The trial court found for the plaintiffs and rendered a verdict in their favor.
- The defendant, Geary, appealed the trial court's judgment to the California Supreme Court.
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Issue:
Is a person personally liable in tort for destroying the property of another, in good faith and under apparent necessity, to stop the spread of a conflagration?
Opinions:
Majority - Murray, Chief Justice
No, a person is not personally liable for destroying another's property in good faith and under apparent necessity to stop a conflagration. The right to destroy property to prevent the spread of a fire is based on the common law doctrine of necessity, which is traced to the highest law of nature. This principle, summarized by the maxim 'Necessitas inducit privilegium quod jura privata' (Necessity induces a privilege because of private rights), dictates that individual property rights must yield to the higher laws of impending necessity. A house in the path of a fire becomes a public nuisance that can be lawfully abated for the general convenience and safety of society. This act is not a 'taking' of private property for public use under the eminent domain clause of the Constitution, which requires compensation. A constitutional taking is an act of the State for a public purpose, whereas destroying a building to stop a fire is an act to benefit individuals and the city in an emergency. While the necessity for destruction must be clearly shown, the person acting must use their own judgment in the exigency of the moment. The evidence established the destruction was necessary, as the house would have been consumed by the fire anyway, and the goods within it were equally subject to the necessity of the occasion.
Analysis:
This case establishes the common law defense of private necessity in California tort law, immunizing both public officials and private citizens from liability for property destruction undertaken to avert a greater public harm, such as a city-wide fire. The decision significantly clarifies the distinction between a non-compensable act of necessity and a compensable 'taking' under eminent domain, placing the loss on the individual whose property is sacrificed. This ruling encourages decisive action during emergencies by removing the fear of subsequent lawsuits, though it also highlights the need for legislative action to create potential compensation schemes for affected property owners.
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