Surocco v. Geary

Supreme Court of California, 1853.

3 Cal. 69, 58 Am.Dec. 385.

Prosser, pp. 117-118


Facts: Geary, in his role as Alcalde (Mayor) of San Francisco, burned down the plaintiffís house in order to keep a fire from spreading through the city.The plaintiff sued and won.The defendant appealed, saying he had the authority to destroy the building because it was necessary to preserve other buildings.


Issue: If you destroy someoneís house in good faith and out of necessity, can you be held liable for damages?


Rule: The common law says that when it is necessary to give up one house in the interests of society (public necessity), the person whose house is sacrificed canít sue.


Analysis: The court finds no statute that contradicts the common law formulation of necessity.


Conclusion: The Supreme Court of California reversed the trial courtís verdict.


Notes and Questions


1.     This would seem to be a clear case of necessity.Iím not sure I agree with the application of the rule in the second case, because it means that the community at large receives a good at the expense of a third party.In other words, the cost is transferred as it is mitigated.On the other hand, if the defendant in the first case had not sprayed the chemicals, the plaintiffís own timber might have burned down along with all the rest of the trees in the county.

2.     Again, I think the burning of the clothes is a plausible public health necessity, but because the good to the community so far exceeds the cost to the heir, it seems reasonable to transfer at least part of the cost of the clothing to the community.

3.     Again, Iím a bit wary.It seems reasonable that the company should get some compensation, if not full compensation, because the larger community presumably gets a large benefit from the harm done to one company.

4.     If private citizens reasonably judge something is necessary, it is moral for them to act even at the risk of legal sanction.As a mater of policy, we do not want to discourage them from doing what is necessary by threatening them with possible lawsuits.If a private citizen acted in good faith out of what they sincerely believed was necessity, I think it is good policy to not hold them liable.

5.     Again, I think it would be good policy for the government to pay people back for the benefit they conferred on the community by sustaining a personal loss.I think it is a useful distinction to make between the liability and privilege of an individual and the liability of the government as a stand-in for the community at large.

6.     The statute in this case was interpreted only to apply to just compensation due in the case of public works projects.The court would not give the storeowner compensation because the actions of the SWAT team could not possibly be construed as any sort of public project.

7.     Fire insurance seems like an economically efficient way of sharing the cost of destroying an individualís property.The benefit is obviously shared among all the property owners whose property is spared.


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