Surocco v. Geary
3 Cal. 69 · California Supreme Court · 1853
Facts
During a conflagration in San Francisco on December 24, 1849, Alcalde Geary ordered the destruction of the plaintiffs' house and property. Geary justified this action by claiming official authority and the necessity of stopping the raging fire. Evidence showed the fire ultimately burned beyond the plaintiffs' building, and they were actively removing their property when it was destroyed, though they were prevented from removing all of it. The destruction was intended to save adjacent buildings and halt the fire's progress.
Procedural history
The action was commenced in the court below, where it was tried by the court sitting as a jury. A verdict was rendered for the plaintiffs. The defendant then prosecuted an appeal to this court under the Practice Act of 1850. This court reversed the lower court's judgment.
Issue
Can a person who, in good faith and under apparent necessity, destroys another's house during a conflagration to prevent its spread and save adjacent buildings, be held personally liable for damages by the owner?
Holding
No, a person acting under apparent necessity to destroy property to stop a conflagration is not personally liable. The lower court's judgment for the plaintiffs was reversed.
Rule
The common law, based on the principle of necessity, justifies the destruction of property to prevent the spread of a conflagration. Individual property rights yield to the higher laws of impending necessity, as a burning house or one in its path becomes a nuisance to be abated for general convenience and societal interest. This is not a "taking of private property for public use" requiring compensation. However, the necessity for destruction must be clearly shown; without actual or apparent necessity, the actor would be liable for trespass.
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