Necessity (tort)
Encyclopedia
In tort
common law, the defense
of necessity gives the State or an individual a privilege to take or use the property of another. A defendant typically invokes the defense of necessity only against the intentional torts of trespass to chattels
, trespass to land
, or conversion
. The Latin
phrase from common law
is necessitas inducit privilegium quod jura privata, "Necessity induces a privilege because of a private right." A court will grant this privilege to a trespasser when the risk of harm to an individual or society is apparently and reasonably greater than the harm to the property. Unlike the privilege of self-defense
, those who are harmed by individuals invoking the necessity privilege are usually free from any wrongdoing. Generally, an individual invoking this privilege is obligated to pay any actual damages caused in the use of the property but not punitive or nominal damages.
In American law, the case most often cited to explain the privilege of private necessity is Vincent v. Lake Erie Transp. Co., 109 Minn. 456, 124 N.W. 221 (1910).
To invoke the private necessity privilege, the defendant must have been actually threatened or have reasonably thought that a significant harm were about to occur. The ruling in Vincent v. Lake Erie assures private citizens from a public policy stand point that they will be compensated for their loss. Vincent will be compensated for repairs and Lake Erie can rest assured that their ship will not sink.
The decision in Surocco v. Geary differs from the private necessity doctrine that a trespasser must compensate a property owner for any damage she may cause. The next case coincides with the private necessity doctrine and shows that American courts are conflicted on the issue of compensation for damage.
It is an issue of public policy to determine if either private individuals or the public at large through taxes should bear the loss for damages caused through public necessity. Wegner v. Milwaukee allocates the loss that benefits the public to the public rather than to Wegner, the innocent citizen. Cases with similar facts to Wegner have used the public necessity doctrine under Surocco, and the individual must bear the cost of the greater public good. Courts determine this issue as a matter of public policy.
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
common law, the defense
Defense (legal)
In civil proceedings and criminal prosecutions under the common law, a defendant may raise a defense in an attempt to avoid criminal or civil liability...
of necessity gives the State or an individual a privilege to take or use the property of another. A defendant typically invokes the defense of necessity only against the intentional torts of trespass to chattels
Trespass to chattels
Trespass to chattels is a tort whereby the infringing party has intentionally interfered with another person's lawful possession of a chattel...
, trespass to land
Trespass to land
Trespass to land is a common law tort that is committed when an individual or the object of an individual intentionally enters the land of another without a lawful excuse. Trespass to land is actionable per se. Thus, the party whose land is entered upon may sue even if no actual harm is done...
, or conversion
Conversion (law)
Conversion is a common law tort. A conversion is a voluntary act by one person inconsistent with the ownership rights of another. It is a tort of strict liability...
. The Latin
Latin
Latin is an Italic language originally spoken in Latium and Ancient Rome. It, along with most European languages, is a descendant of the ancient Proto-Indo-European language. Although it is considered a dead language, a number of scholars and members of the Christian clergy speak it fluently, and...
phrase from common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
is necessitas inducit privilegium quod jura privata, "Necessity induces a privilege because of a private right." A court will grant this privilege to a trespasser when the risk of harm to an individual or society is apparently and reasonably greater than the harm to the property. Unlike the privilege of self-defense
Self-defense
Self-defense, self-defence or private defense is a countermeasure that involves defending oneself, one's property or the well-being of another from physical harm. The use of the right of self-defense as a legal justification for the use of force in times of danger is available in many...
, those who are harmed by individuals invoking the necessity privilege are usually free from any wrongdoing. Generally, an individual invoking this privilege is obligated to pay any actual damages caused in the use of the property but not punitive or nominal damages.
Private necessity
Private necessity is the use of another's property for private reasons. Well established doctrines in common law prevent a property owner from using force against an individual in a situation where the privilege of necessity would apply. While an individual may have a private necessity to use the land or property of another, that individual must compensate the owner for any damages caused. For example:- A strong wind blows a parachuting skydiver off course from his intended landing zone. He must land in a nearby farmer's field. The skydiver tramples on the farmer's prized roses, and the farmer hits the skydiver on the head with a pitchfork. The skydiver can invoke the privilege of private necessity for trespassing in the farmer's fields but will have to pay for the damage caused to the roses. The farmer will be liable for batteryBattery (tort)At common law, battery is the tort of intentionally and voluntarily bringing about an unconsented harmful or offensive contact with a person or to something closely associated with them . Unlike assault, battery involves an actual contact...
because the use of force in defense of property is not privileged against an individual who successfully claims private necessity.
In American law, the case most often cited to explain the privilege of private necessity is Vincent v. Lake Erie Transp. Co., 109 Minn. 456, 124 N.W. 221 (1910).
Vincent v. Lake Erie Transportation Co.
- Facts
- Defendant Lake Erie was at the dock of plaintiff Vincent to unload cargo from Reynolds, the steamship owned by the defendant. An unusually violent storm developed. Lake Erie was unable to leave the dock safely and deckhands for the steamship instead tied the Reynolds to the dock, continually changing ropes as they began to wear and break. A sudden fierce wind threw the ship against the dock significantly damaging the dock.
- Issue
- Is compensation required when there is damage to another's property due to a private necessity?
- Decision Yes. A private necessity may require one to take or damage another's property, but compensation is required. If the Reynolds had entered the harbor at the time the storm began, and the wind knocked her against the dock, this force of nature would not have allowed Vincent to recover. The defendant, Lake Erie, deliberately kept the Reynolds tied to the dock. If they had not done so, the ship could have been lost creating a far greater damage than what was caused to the dock. Although this was a prudent thing to do, Lake Erie is still liable to Vincent for the damage caused.
- Dissent One who constructs a dock and conducts business assumes a risk of damage that may occur from storms. For this reason, Judge Lewis did not agree with the majority and believed that Vincent had assumed the risk of damage caused by Lake Erie.
To invoke the private necessity privilege, the defendant must have been actually threatened or have reasonably thought that a significant harm were about to occur. The ruling in Vincent v. Lake Erie assures private citizens from a public policy stand point that they will be compensated for their loss. Vincent will be compensated for repairs and Lake Erie can rest assured that their ship will not sink.
Public necessity
Public necessity is the use of private property by a public official for a public reason. The potential harm to society necessitates the destruction or use of private property for the greater good. The injured, private individual does not always recover for the damage caused by the necessity. In American law, two conflicting cases illustrate this point: Surocco v. Geary, 3 Cal. 69 (1853) and Wegner v. Milwaukee Mutual Ins. Co. 479 N.W.2d 38 (Minn 1991).Surocco v. Geary
- Facts
- San Francisco was hit by a major fire. The plaintiff, Surocco, was attempting to remove goods from his home while the fire raged nearby. The defendant and mayor of San Francisco, Geary, authorized that the plaintiff's home be demolished to stop the progress of the fire and to prevent its spread to nearby buildings. Surocco sued the mayor claiming he could have recovered more of his possessions had his house not been blown up.
- Issue
- Is a person liable for the private property of another if destroying that property would prevent an imminent public disaster?
- Decision
- No. The right of necessity falls under natural lawNatural lawNatural law, or the law of nature , is any system of law which is purportedly determined by nature, and thus universal. Classically, natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior. Natural law is contrasted with the positive law Natural...
and exists independent of society and government. Individual rights must give way to the higher law of impending necessity. A house on fire or about to catch on fire is a public nuisance which is lawful to abate. Otherwise one stubborn person could destroy an entire city. If property is destroyed without an apparent necessity, the destroying person would be liable to the property owner for trespass. Here, blowing up Surocco's house was necessary to stop the fire. Any delay in blowing up the house to allow him to remove more of his possessions would have made blowing up the house too late.
The decision in Surocco v. Geary differs from the private necessity doctrine that a trespasser must compensate a property owner for any damage she may cause. The next case coincides with the private necessity doctrine and shows that American courts are conflicted on the issue of compensation for damage.
Wegner v. Milwaukee Mutual Ins. Co.
- Facts
- A suspected felon barricaded himself inside of plaintiff, Wegner's house. The Minneapolis police department fired tear gas canisters and concussion grenades into the house causing extensive damage. Wegner sued the defendant, the City of Minneapolis for trespass. Wegner claimed that the City's actions constituted a "taking" of his property under principles similar to those outlined in the Fifth AmendmentFifth Amendment to the United States ConstitutionThe Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...
to the US Constitution: this was a taking of his private property for public use and so the City was required to compensate him for it. The City claimed there was no taking because the police's actions were a legitimate exercise of police power. Lower courts ruled that the City was justified under the doctrine of public necessity and that the City was not required to compensate Wegner. Wegner appealed to the State Supreme Court in its claim against the City's insurance company.- Issue
- Must a city compensate a homeowner whose property was damaged in the apprehension by police of a suspect?
- Decision Yes. Under Minnesota's constitution, the government must compensate a landowner for any damage it causes when it takes private land for public use. Whether the police acted reasonably is not relevant. The constitutional provision is not limited to an improvement of property for public use. The doctrine of public necessity does not change our holding. Once a taking has been found to exist, compensation is required. If the public necessity doctrine were to apply to a situation like this, no taking would ever be found. Fairness and justice require this result. It would not be fair for Wegner to suffer the burden of his loss for the public good. Therefore, the City must bear his loss. In addition, the individual police officers are not personally liable; the public must bear the loss.
It is an issue of public policy to determine if either private individuals or the public at large through taxes should bear the loss for damages caused through public necessity. Wegner v. Milwaukee allocates the loss that benefits the public to the public rather than to Wegner, the innocent citizen. Cases with similar facts to Wegner have used the public necessity doctrine under Surocco, and the individual must bear the cost of the greater public good. Courts determine this issue as a matter of public policy.
See also
- TortTortA tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
- Common lawCommon lawCommon law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
- Trespass to chattelsTrespass to chattelsTrespass to chattels is a tort whereby the infringing party has intentionally interfered with another person's lawful possession of a chattel...
- Trespass to landTrespass to landTrespass to land is a common law tort that is committed when an individual or the object of an individual intentionally enters the land of another without a lawful excuse. Trespass to land is actionable per se. Thus, the party whose land is entered upon may sue even if no actual harm is done...
- ConversionConversion (law)Conversion is a common law tort. A conversion is a voluntary act by one person inconsistent with the ownership rights of another. It is a tort of strict liability...
- Necessity in English lawNecessity in English lawIn English law, the defence of necessity recognises that there may be situations of such overwhelming urgency that a person must be allowed to respond by breaking the law. There have been very few cases in which this defence has succeeded...
(Criminal) - NecessityNecessityIn U.S. criminal law, necessity may be either a possible justification or an exculpation for breaking the law. Defendants seeking to rely on this defense argue that they should not be held liable for their actions as a crime because their conduct was necessary to prevent some greater harm and when...
(Criminal)