
    Beach v. Trudgain & als.
    July Term, 1845.
    Lewis'burg'.
    (Absent Bbooke, J.)
    1. Public Necessity — Destruction of Property — Fire.— A honse in a town may be pulled down and removed, to arrest the spread of a fire, where it is inevitable that the house will take üre and be consumed, if it is permitted to stand; and it is inevitable that if it takes fire and is consumed, it will spread the fire to other houses.
    2. Same — Same—Same—A honse in a town may not be pulled down and removed to arrest the spread of a fire, if it may be prevented taking' fire by the use of the means within the power of the parties pulling it down; or if the nse of these means would prevent its communicating fire to other houses.
    220 *3- Same — Same—Same.—Parties pulling down a house in a town to arrest the spread of a fire, are responsible for the damages thereby sustained by the owner, if the honse may he prevented taking fire, by the nse of the means within the power of the parties pulling it down.
    4. Pleading — Departure in. — The declaration charges a trespass in entering the plaintiff’s close, and pulling down his house. The plea says, the house was in imminent danger of taking fire, and of communicating the fire to other houses. The replication to the plea avers, that by a diligent use of the means in the power of the defendants, the house might have been prevented taking fire. Hei/d. This is no departure in pleading.
    
      5. Same — Replication.—Not necessary to state in the replication the means by which the house might have been prevented taking fire.
    This was an action of trespass vi et armis, brought by Andrew H. Beach against John Trudgain, and seven others, in the Circuit Superior Court of haw and Chancery for the county of Kanawha. The dclaration charged that the defendants had with force and arms entered upon the close of the plaintiff, situate in the town of Charleston, in the county of Kanawha, and pulled down his dwelling house.
    The defendants appeared, and after demurring to the declaration, and pleading the general issue, offered four special pleas. The first of these, stated that at the time of committing the trespass complained of, a fire was raging with great violence in the town of Charleston, contiguous and adjoining to the house of the plaintiff; insomuch that the plaintiff’s dwelling house, from its nearness and contiguity to the fire, would necessarily, and without the possibility of prevention, have caught fire therefrom, and been burned down and wholly destroyed; and would thereby also necessarily have spread fire to, and ignited divers other houses, &c., and destroyed the same, had not the defendants with others pulled down and removed the house of the plaintiff. Wherefore, for the purpose of preventing the plaintiff’s house from taking fire, and to prevent its spreading fire to and igniting other houses adjacent, and destroying them, the defendants, with divers other persons, did pull down and remove plaintiff’s house, &c.
    *The second plea stated that the plaintiff’s house was in imminent peril of taking fire, and being consumed and destroyed, and would, when so on fire and consuming, have necessarily communicated and spread the fire to other houses, &c.; and have destroyed them; and that at the instant when the defendants were committing the trespass complained of, the plaintiff’s dwelling house was about to take fire, and would of necessity and inevitably have taken fire, and been consumed; and would have communicated the fire, while burning, to other houses, &c., if it had been permitted to remain where it was, and had not the defendants pulled down and removed it. Wherefore, to prevent said dwelling house from taking fire, and being consumed, and to prevent its communicating the fire to other houses, and to stop the farther progress of the conflagration, the defendants did enter the close of the plaintiff, and pull down and remove his dwelling house.
    The third plea stated that the plaintiff’s dwelling house was in imminent and instant danger of catching fire, and being thereby wholly consumed and destroyed, and of communicating and spreading the fire and conflagration to divers other houses, &c.; whereby they would have been destroyed, and would have communicated the fire to other parts of the town. Wherefore, to prevent these consequences, the defendants, &c.
    The fourth plea is the same as the third, except that the pulling down the dwelling house of the plaintiff is alleged to be with his knowledge and assent.
    The plaintiff objected to the reception of all the special pleas, but the Court below overruled the objection, and received them; whereupon the plaintiff replied generally, and issues were made up upon the pleas. Afterwards, the plaintiff moved the Court to be permitted to withdraw his general replication to the third plea, and to reply specially to that plea;. and the Court sustained the motion; whereupon the plaintiff filed a special replication *to the third special plea, in which he stated, that at the time his dwelling house was pulled down and removed, as admitted by the defendants in their third special plea, the defendants, by reasonable diligence and exertion, in the application and use of the means in their power, and under their control, could have protected and prevented the dwelling house of the plaintiff from being ignited, burned and consumed, and from thereby spreading the fire and communicating the same to other houses in the town of Charleston; but that the defendants did not, nor would they then and there use reasonable diligence and exertion in the application and use of the means in their power, and under their control, to protect said dwelling house from being' ignited and consumed, and to prevent the same from spreading the fire and communicating the same to other houses in the said town.
    The defendants then filed a demurrer to the special replication to the third plea, in which the plaintiff -joined; and the cause coming on upon this demurrer, the Court below sustained it, and gave judgment for the defendants. From this judgment, the plaintiff obtained an appeal to this Court.
    B. H. Smith, for the appellant.
    If it be a principle of law, that under any circumstances, one man may destroy his neighbour’s house to save his own, the circumstances which will justify his act should be clearly stated in his plea. The party who resorts to the law of necessity for the de-fence of his conduct, must be prepared to establish the existence of that necessity. He must .establish a necessity, not such as is synonymous with convenience, but “a necessity which is not chosen, but chooses. ’ ’ And he must shew its existence, not by probabilities, or apprehensions, but by clear and “demonstrative proofs. Surely nothing short of this, can be required of him who sets himself up as a judge between *himself and his neighbour, and decides in his own favour.
    To constitute such a -necessity in this case, two things are essential. The first, that the plaintiff’s house must, of necessity, have been ignited and destroyed by the fire; and second, that in being ignited and destroyed, it must, of necessity, have been the means of destroying others. These, then, are the facts which the defendants must prove; and which, therefore, they must allege in their plea to entitle them to the favourable judgment of the Court. And it is submitted-that neither in the first, nor second special plea, and certainly not in the third, have they alleged that there was an inevitable necessity that the plaintiff’s house must have been consumed, or that it must have involved others in its own destruction.
    But is it the law of Virginia that a person, or the public, may destroy the property of a citizen to save their own, without making compensation for it. It is true, that in the early days of English jurisprudence, it has been frequently asserted, thqugh seldom if ever decided, that the property of the citizen might be destroyed to put a stop to a fire. 12 Coke’s R. 279, marginal paging 63; Bacon’s Law Tracts 55-6-7-8; Jenk. R. 165; Dyer’s R.-36-37; Corny. Dig. Pleader 3 M 20 and 30; 1 Dali. R. 398; Mayor of New York v. Lord, 17 Wend. R. 285; Puff. Book II., ch. 6, g 8.
    These cases shew that in a city, in a great public necessity, property may be destroyed; or in the- case of a vessel at sea, property may be thrown overboard to save the lives of the passengers. But in Virginia, the doctrine is not law.
    There is in England no constitutional provision that private property shall not be taken for public purposes without just compensation. The ground of defence in this case, is, that the public necessity demanded the sacrifice of the plaintiff’s dwelling. If this defence be true, then the constitution says he shall have corn-pensation *for the loss he has sustained; and until the Legislature prescribes a mode by which that compensation is to be ascertained, and directs the source from whence it is so derived, the public necessity can be no justification for the destruction of private property, so as to protect the agents in its destruction from a just liability to make good his loss to the owner.
    If, however, it shall be held that this doctrine is law in Virginia, and that the special pleas offer a good defence to the action, still it is confidently submitted, that the Court below erred in sustaining the demurrer to the special replication to the third special plea. This replication alleges that the means in the hands of the defendants would have enabled them, if diligently employed, to prevent the ignition and destruction of the plaintiff’s house; and also have' enabled them ,to prevent the spread of the fire. And yet the Judge below held the parties were not bound to use these means. Necessity, inevitable necessity, is the basis of this defence; and yet when a diligent use of the means within the power of the defendants, will prevent that necessity, will preserve to the plaintiff his dwelling, and secure the public from loss, there is no obligation on the defendants to employ these means, rather than to subject the plaintiff to the loss of his dwelling ! A proposition so monstrous cannot be law.
    The Attorney General and Summers, for the appellees.
    The general doctrine, that a house may be pulled down to stop the progress of a fire in a town, without subjecting the parties engaged in pulling it down to an action, seems to be as well settled as any other common law doctrine, by a series of authorities commencing at the earliest days of English jurisprudence, and coming down to the present time. The cases cited by the counsel for the appellant fully sustain the proposition; and to these may be added 2 Roll’s Abr. 566; Plowden’s R. 332; Noy’s Max. 30, 32; 3 Kent’s Com. 338. *The cases do not specify the precise danger which will justify the pulling down of the house; but where the house is on fire, or where it must inevitably take fire, or where it is in imminent danger, it may be pulled down.. The true en-quiry, always, is, was the danger such, as, in the estimation of prudent sensible men, rendered it necessary to destroy the house for the safety of the town? This question was ' proper for the consideration of the jury, and was properly submitted to it by the special pleas in this case.
    It is said, however, that though this doctrine be -good law in England, it is not law in Virginia; and the provision in the constitution of Virginia, which declares that private property shall not be taken for public purposes, without just compensation, is relied upon.
    That provision of the constitution obviously is intended to apply, and only does apply, to cases where private property is taken to be used for the purposes of the public. It has no application as between individuals ; but the compensation thereby secured to the owner of property is to be made by the government, or some public body to whom the government has delegated the authority to use the property of individuals, for purposes in which the public is interested.
    It will be seen from the cases referred to, that the principle upon which the doctrine involved in this case is founded, is wholly distinct from that on which the right to use the property of individuals for public purposes is based. The first is founded on necessity; the second, on the doctrine of prerogative, or the right of eminent domain existing in the sovereign.
    Taking the common law doctrine to be in force in Virginia, each of the plea states such a case of imminent danger both that the plaintiff’s house would take fire and be destroyed, and that it would spread the fire to other houses adjoining, as, if proved, will make out a "‘clear case of justification on the part of the defendants in pulling down the house.
    The special replication to the third plea, if good in substance, is defective in form. It does not state the means by which the fire might have been arrested, or the quo modo.
    But the replication is not responsive to the plea. The plea says the house was in imminent danger. Without controverting this fact, the replication alleges that the defendants had the means of arresting the fire without destroying the house; thus assuming that it was the duty of these defendants to attempt to put out the fire.
    The replication is also a departure from the declaration. The count charges an unlawful entry; but the replication goes on the ground that the entry was lawful, but that the defendants did not use due diligence and skill in attempting to save the house, after they had entered on the premises. If an action could have been maintained on this ground, it should have been an action on the case for want of diligence and skill. We refer on this subject to 6 Com. Dig. title Pleader, F 6, 153, F 7, 154; 2 Coke Bit. 304, a. by Coventry; White v. Cleaver, 2 Ld. Raym. R. 1449. But it must be crassa negligentia, indeed, which would subject parties attempting to stop a fire in a town, to an action for want of skill in the efforts they were making for that purpose. ,
    
      
      Public Necessity— Destruction of Property. — The principal case Is cited in Amick v. Tharp. 13 Gratt. 569, 570, and Fisher v. Penn. R. Co.. 66 Fed. Rep. 73.
    
   STANARD, J.,

delivered the opinion of Court.

The Court is unanimously of opinion, that the Court below properly received the 1st, 2d and 4th special pleas offered by the defendants in that Court. And the Judges of this Court being equally divided in opinion as to the propriety of receiving the 3d special plea, the judgment of the Court below is affirmed. The Court is further of opinion, that the Court below erred in entering judgment for the defendants in that Court, on their demurrer to the replication to the 3d special plea; two *of the Judges of this Court being of opinion, that judgment should have been given for the plaintiff on that demurrer, because, in their opinion, the 3d special plea was bad; and the other two, because, though that plea was good, the replication thereto was sufficient. Therefore, it is considered that the judgment be reversed and annulled; and that the plaintiff in error recover of the defendants in error the costs of prosecuting his writ of supersedeas in this Court. And the case is remanded for such proceedings in respect to the 3d plea, by the allowance of such amendment, or the withdrawal of the demurrer to the replication, or otherwise, as the Court below, in the exercise of a sound discretion, might or would have allowed on the application of either party, had its judgment on the demurrer to the replication been such as is expressed by this Court; and for a trial of the issue of fact, if any, that may be made upon the said 3d plea; and the other issues in the case on the other pleadings.  