
    STRUVE v. DROGE.
    
      N. Y. Common Pleas;
    
    
      November, 1881.
    Trespass.—Supposed Fire.—Public Necessity.
    Although in a case of public necessity, to prevent the spreading of a fire, any person may demolish a building, without being responsible in trespass or otherwise; yet if such public necessity does not exist, and, in point of fact, there is no need of the entry, the person who commits the act is responsible in damages.
    Reasonable cause to believe iu the existence of the danger is not alone a justification.
    Appeal from a judgment of a district court- in the city of New York, in favor of the defendant and against the plaintiff, dismissing his complaint, with $10 costs.
    John C. Struve sued Carsten Droge for damages for trespass to property.
    Plaintiff was a fresco painter, and defendant was his landlord, and occupied adjacent apartments to those of the plaintiff. On the day in question plaintiff left his premises as usual in the morning, closed the windows and locked the door, leaving his sketches, drawings and materials in his rooms. Upon his return in the evening, he found that one of his doors had been broken open, and his property damaged to the extent of $95.70.
    It appeared that defendant had noticed smoke in front of the plaintiff’s window; he knocked at plaintiff’s door. There was no response. He then forced open a side-door and went in. He saw there was no fire, and left. It turned out that the smoke came from a neighboring chimney.
    The justice, in rendering judgment for the defendant, said: “I find, from the evidence that is before me, that the defendant broke open the plaintiff’s door ; that he committed the damages alleged; that there was an appearance of fire in the plaintiff’s apartments, from which apartments the plaintiff was then absent;" that defendant believed the premises were on fire ; that his motive in breaking open the door was to subdue the fire and protect his own property as well as that of the plaintiff ; that such act was lawful and justifiable ; that the damage committed was accidental, and with no intent to perpetrate a wrong, but followed the opening of the door; that the breaking open of the door was justifiable in law.”
    Plaintiff appealed.
    
      George F. and J. C. Julius Langbein, for the plaintiff, appellant.
    I. The law makes no distinction in actions of this character, as to whether the defendant’s act was intentional or not; the intent, belief and motive makes no difference as regards the liability ; that question only arises as to the measure of damages. Trespass lies, if the act of the defendant causes immediate injury, whether the act be intentional or not (Percival v. Hickey, 18 Johns. 257; Guille v. Swan, 19 Id. 381; Castle v. Duryee, 1 Abb. Ct. App. Dec. 327; S. C., 2 Keyes, 169; Dygert v. Bradley, 8 Wend. 469; Vanderburg v. Truax, 4 Den. 464).
    II. The entry of the defendant on the premises of the plaintiff and breaking down his door, was in law a trespass, for which he is liable even though no damages are shown. Every unlawful entry upon the premises of another is a trespass; and, whether the owner suffers much or little, he is entitled to recover some damages (Dixon v. Clow, 24 Wend. 188; Stewart v. Wells, 6 Barb. 79; Sedgw. on Dam. 133; Shannon v. Burr, 1 Hilt. 39; Parker v. Griswold, 17 Conn. 288; Blake v. Jerome, 14 N. J. 406; Browne in Actions at Law, 369).
    III. Even though the entry by the defendant upon the premises of the plaintiff was committed under an lionest, though mistaken, belief, still he is liable in trespass. The rule is, that if the injury is occasioned by an unavoidable accident, no action will lie for it; but if any blame is imputable to the defendant, though he had no intention to injure the plaintiff, or any other person, he is liable for the damages sustained (Dygert v. Bradley, supra; Weaver v. Ward, 1 Hob. 134; Learne v. Bray, 3 East, 593; Wakman v. Robinson, 1 Bing. 213; Percival v. Hickey, supra; Bullock v. Babcock, 3 Wend. 391; Center v. Tinney, 17 Barb. 99; Vincent v. Stinthorn, 7 Verm. 64; Brower v. Neal, 36 Me. 407; 1 Waterman on Tresp. § 11; Allaback v. Utt, 51 N. Y. 651).
    IV. The defendant, having committed a trespass under an honest mistake, without any intention of injuring the plaintiff’s property, is still liable for the actual damages committed. For an involuntary trespass, or one committed under an honest mistake, without intent to injure, the damages should be confined strictly to compensation for the injury sustained ; and in estimating the amount of such damages all the particulars wherein the plaintiff is aggrieved may be considered—whether of pecuniary loss, pain, insult or inconvenience. But, unless the trespass is willful, or committed in reckless or wanton disregard of another’s rights, or accompanied by circumstances showing malice or a corrupt motive, vindictive or exemplary damages should not be given (Ives v. Humphreys, 1 E. 1). Smith, 197; Shannon v. Burr, 1 Hilt. 39; Lane v. Wilcox, 55 Barb. 615; Walrath v. Redfield, 11 Id. 368; North v. McDonald, 47 Id. 528; Armstrong v. Percy, 5 Wend. 535; Crain v. Petrie, 6 Hill, 522; Downer v. Madison County Bank, Id. 648).
    
      G. S. Van Pelt, for the defendant, respondent.
    I. The fact being settled that the defendant had good reason to believe there was a fire in plaintiff’s room, and that he acted without malice, or intent to injure the plaintiff, he was justified in breaking open the door (nay, it was his duty to do so), in the absence of the occupant. He was the landlord of the whole house, and was obliged to protect his own and his tenant’s property as far as he was able. It is a very ancient rule of the common law that an entry upon land to save goods which are in jeopardy of being lost, or destroyed by water, fire, or any like danger, is not a trespass (Proctor v. Adams, 113 Mass. 376).
    II. The defendant had a right to protect his property, by the acts done. A trespass is an unjustifiable interference with the rights of another, or an interference with intent to injure plaintiff, and such must be shown to sustain this action of trespass (Mahan v. Brown, 13 Wend. 261).
    III. The defendant had a reversionary right to the premises occupied by the plaintiff, and therefore he had a legal right to enter to prevent damage by fire (Phelps v. Nowlen, 72 N. Y. 39).
    IV. The rule of damnum absque injuria applies to this case, and therefore cannot be the ground of an action. ■
   Van Hoesen, J.

The plaintiff’s rooms were not on fire, though the defendant supposed they were. The defendant, who occupied adjacent apartments, broke into the plaintiff’s room, and in doing so committed some damage, to recover for which this action is brought. The sole question is, Is he liable % The law seems to be this, that in a case of public necessity, to prevent the spreading of a fire, any individual may demolish a building, without being responsible in trespass or otherwise. If, however, such public necessity does not exist, and, in point of fact, there is no need of the destruction, the person who commits the act is responsible in damages (Addison on Torts [Dudley & Bayliss’ ed.] 1,306). In Mayor of New York v. Lord (18 Wend. 132), Chancellor Walwoeth said, that where it became necessary to destroy the property of an individual to prevent the ravages of a fire, the persons who did the destruction were protected from personal responsibility, where they could show that the destruction of the property was necessary to produce the effect, but that they were, by the common law, bound, at their peril, to decide correctly as to such necessity, to protect themselves from liability to make good the loss.

In Taylor v. Plymouth (8 Met. 462), Chief Justice Shaw uses language of the same import. If this be the law, it follows that the judgment of the district court must be reversed.

I am aware that an argument may be framed to support the proposition that the person who does the injury should be protected if he breaks into a house under such circumstances that a jury could say that he had good and reasonable grounds for believing that there was a fire in it, likely to get headway, and to spread to adjoining property, even though it might afterwards appear that there was in fact no fire, and that he had been deceived by appearances. Such an argument might possibly find some support in the case of the People v. Shorter (2 N. Y. 193).

Joseph P. Daly, J., concurred.

Judgment reversed.  