P’s house and property were destroyed when they were blown up during the fire of 24th Dec, 1849.
Judge noted clear evidence that if the house not been blown up it would have been consumed by fire.
Whether a person who tears down or destroys the house of another, in good faith, and under apparent necessity (during the time of 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?
General rule: Necessary Intentional interference with property rights is allowable to save lives or the protect public interest from impending external threats (fire, flood, storm, war).
** Imminent peril must be averted by the action (the action must be "truly necessary")
** If it is a reasonable mistake in determining the imminent peril, then no liability follows.
Right to destroy property, to prevent spread of fire, is part of highest law of necessity.
** Natural right of man, independent of society or civil government.
** No different than getting a plank in a shipwreck, to the detriment (death) of another; or throwing goods overboard in a tempest, to save the ship; or trespass on land, to escape death.
** Necessitas inducit privilegium quod jura privata: Necessity provides a privilege for private rights
** The common law adopts principles of natural law, justifies otherwise tortuous acts on necessity. This principle is from Saltpetre’s Case (1606).
Destroying houses to build defences or to prevent spread of fire will be permitted when there is impending necessity.
** A burning house maybe a nuisance, which is lawful to abate, otherwise one person may ruin a city.
** D argued that the owner's judgment is clouded by personal interest (consider: who is the judge of necessity?). Necessity must be shown. However, irresponsible persons don’t have carte blanche to destroy property
** In this case, the action was clearly necessary; also, the property inside was not recoverable, its removal would have delayed demolition.