Surocco v. Geary

Supreme Court of California, 1853. 3 Cal. 69, 58 Am. Dec. 385.

Defendant is Geary. Plaintiff won in trial court and defendant appealed.


Can “necessity” be a privilege? Under what circumstances?


A person can damage another’s property (in good faith) because of necessity to protect the property of others around it.


There was necessity here. Judgement reversed.


There was a raging fire. The plaintiffs were in the process of saving their items from the house before they got there when the defendant showed up and destroyed the house to prevent the spread of the fire. Plaintiffs could have saved all their items had the defendant not destroyed the house. They were furious and sued.


Impending necessity is more important than property. Therefore, if a reasonable person can assume necessity (and the defendant prove necessity), then there is a privilege.

The courts also say that the legislature can make rules to what extent the privilege of necessity can extend. When no such rules exist, the courts will rely on common law.


The privilege of necessity is there for the protection of others property.

Additional Notes

Public necessity. Damage can be caused because there are larger public interest at stake. The defendant may not be held liable and the plaintiff might not be able to collect compensation for the damages.

Here are some circumstances where this may be necessary:

  1. Wildfire
  2. Flood
  3. Unsafe foundations

Vincent v. Lake Erie Transp. Co.

Supreme Court of Minnesota, 1910. 109 Minn. 456, 124 N.W. 221.

Defendant lost and appealed.


Is there a privilege of necessity to protect personal property against damage if it damages other’s property?


If the injury arises from an act of God, where there is nothing the defendant can do, then they can find necessity.



The defendants own a ferry service and was tied and docked when a strong storm came in. Rather than risking the safety of the boat at sea, they stayed tied into the dock which caused damage to the dock.


The court recognizes that the defendant had a significant interest in protecting their property. Therefore, they can protect their property if it is prudent and able to avail itself of the others. Here, however, considering how their actions to protect their own property damaged the property of others, and they would have been able to survive, they are still liable to compensate for the damage.


This is private necessity. There are some times when you are not a tort feaser (because of privilege of necessity) but may still be liable for the damages that were caused from your actions out of necessity.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Categories: 1L Fall, Torts

Will Laursen

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