Copyright 1965, American Law Institute
RULES AND PRINCIPLES
Division One - Intentional Harms to Persons, Land, and Chattels
Chapter 10 - Privileges Intentionally to Invade Interests in Present
and Future Possession of Chattels
Topic 2 - Privileges Arising Irrespective of Consent
§ 262 PRIVILEGE CREATED BY PUBLIC NECESSITY
One is privileged to commit an act which would otherwise be a
trespass to a chattel or a conversion if the act is or is reasonably
believed
to be necessary for the purpose of avoiding a public disaster.
COMMENTS & ILLUSTRATIONS: Comment:
a. The privilege stated in this Section is similar to the privilege to enter land in the possession of another for the same purpose as stated in § 196. The Comments to that Section are applicable here in so far as they are pertinent.
b. The privilege stated in this Section is applicable where one intermeddles with chattels in the possession of another in a reasonable effort to protect against a public enemy, or to prevent or mitigate the effect of conflagration, flood, earthquake, or pestilence. The privilege is not confined to an official representative of the public. The privilege is equally applicable to afford immunity to a private citizen, so long as he acts for the purpose of the protection of the public against the impending disaster.
c. To create the privilege stated in this Section, the threat of disaster must reasonably appear to be imminent. As in the case of a privilege to enter land for similar purposes, the privilege must be exercised in a reasonable manner, and the actor must do no unnecessary damage. (Compare § 196, Comment c.)
d. Since the privilege stated in this Section arises only because of the public necessity, the actor is not liable for the harm caused by its proper exercise. The question whether or not the State or municipal subdivision is liable to indemnify the person whose chattel has been thus commandeered or destroyed is not within the scope of the Restatement of this Subject.
Illustration:
1. In the course of fighting a serious and widespread conflagration, A, a fireman, removes B's car lawfully parked on the highway for the purpose of gaining access to a fire plug. In so doing, A unavoidably damages the car. A is not liable for the harm thus caused.
e. The rule stated in this Section applies to any type of act which would otherwise result in liability for trespass to a chattel or for conversion. It is not limited to dispossession, or to interference with a chattel in the possession of another.
Illustration:
2. A, an agister of cattle, kills B's bull, which is in his possession, to prevent a spread of infection which is dangerous to other cattle and to human beings. If the act is reasonably necessary to prevent the spread of the disease, A is not liable to B.
f. Since it is ordinarily a more serious invasion of another's interests in his chattel to destroy it or to dispossess him of it than it is merely to intermeddle with it while it is in his possession, the actor is not privileged in any destruction or dispossession of the chattel, if the public disaster could be averted by a mere use or other intermeddling.
Illustration:
3. A, a fireman, demands that B get out of his automobile and permit
the fireman to drive it to a widespread conflagration. B refuses to
turn
his car over to A, but offers to drive him to the fire. A is not
privileged
to take the car.
REPORTERS NOTES: This Section has been changed from the first Restatement by broadening it to include other acts of trespass or conversion in addition to use of the chattel or intermeddling with it. As reworded the Section now includes the matter formerly covered by § 269, which is now omitted.
As to the destruction of buildings containing goods in the path of a conflagration, see Surocco v. Geary, 3 Cal. 69, 58 Am. Dec. 385 (1853); American Print Works v. Lawrence, 23 N.J.L. 9 (1850); American Print Works v. Lawrence, 23 N.J.L. 590, 57 Am. Dec. 420 (1851); Bishop & Parsons v. Mayor of Macon, 7 Ga. 200, 50 Am. Dec. 400 (1849). Cf. Conwell v. Emrie, 2 Ind. 35 (1850); Fields v. Stokley, 99 Pa. 306, 44 Am. Rep. 109 (1882); Newcomb v. Tisdale, 62 Cal. 575 (1881), flood.
Illustration 2 is based on Seavey v. Preble, 64 Me. 120 (1874); State v. Mayor of Knoxville, 12 Lea (80 Tenn.) 146, 47 Am. Rep. 331 (1883). Cf. Putnam v. Payne, 13 Johns. R. (N.Y.) 311 (1816), shooting mad dog.
To justify interference with property to avert a public catastrophe the damage must be iminent and the necessity urgent. Allen v. Camp, 14 Ala. App. 341, 70 So. 290 (1915); Farmer v. Lewis, 1 Bush (Ky.) 66, 89 Am. Dec. 610 (1866); Dills v. Hatcher, 6 Bush (Ky.) 606 (1869); Bryan v. Walker, 64 N.C. 141 (1870); Yost v. Stout, 4 Cold. (44 Tenn.) 205, 94 Am. Dec. 194 (1867), overruled on other grounds, Smith v. Brazelton, 1 Heisk. (48 Tenn.) 44, 2 Am. Rep. 678 (1870).