1. Under the statute of Massachusetts and the ordinance of
Boston adopted pursuant thereto, that city is not responsible to
the owner of buildings there situate which are destroyed in order
to prevent the spreading of a fire, unless a joint order for their
destruction be given by three or more engineers of the fire
department, who are present, of whom the chief engineer, if
present, must be one.
2. As it is only by force of the statute and ordinance that the
city incurs a liability to such owner, he is not entitled to
recover unless his case be within their terms, and the joint order
The facts are stated in the opinion of the Court.
MR. JUSTICE SWAYNE delivered the opinion of the Court.
The plaintiff in error, who is the assignee of the estate of
Charles H. Hall, a bankrupt, alleges and relies upon the following
A great fire occurred in the City of Boston on the night of the
9th and 10th of November, 1872. Hall was then the lessee and
occupant of the premises described in the declaration. The
fixtures, merchandise, and tools belonging to him in the part of
the building covered by the lease were of the value of $60,000, and
his leasehold estate was of the value of $10,000. The fire did not
first break out in his premises, but that part of the building and
the contents were in danger from its progress. Three fire
engineers, then at a place of danger in the immediate vicinity,
directed the building including his premises to be demolished to
arrest the spreading of the fire. The building was blown up and
destroyed accordingly. This measure stopped the progress of the
fire. The premises were left unfit for occupation, and his personal
effects, before mentioned, were destroyed by the catastrophe. This
action is brought by his assignee to recover what was thus lost to
Page 101 U. S. 17
The claim is founded upon certain statutes of the State of
Massachusetts, and an ordinance of the City of Boston. A brief
reference to their provisions, material to be considered in this
case, will be sufficient.
In cases of fire, any three of certain designated officers "may
direct any house or building to be pulled down or demolished when
they may judge the same to be necessary in order to prevent the
spreading of the fire." Mass.Gen.Stat., c. 24, sec. 4.
"If such pulling down or demolishing of a house or building is
the means of stopping the fire, or if the fire stops before it
comes to the same, the owner shall be entitled to recover a
reasonable compensation from the city or town; but when such
building is that in which the fire first broke out, the owner shall
receive no compensation."
The City of Boston was authorized to establish a fire
department, to consist of so many engineers, &c., "as the city
council, by ordinance, shall from time to time prescribe."
Mass.Special Stats., 1850, c. 22.
Pursuant to the authority thus conferred, the city council, in
the manner prescribed, created such a department, and declared that
it should "consist of a chief engineer and thirteen assistant
engineers," &c. Ordinances of Boston, ed. 1869, sec. 1.
It was provided that
"the chief engineer shall have the sole command at fires over
all other engineers and officers and members of the fire
department, and other persons who may be present at such
"Whenever it is adjudged at any fire, by any three or more of
the engineers present, of whom the chief engineer, if present,
shall be one, to be necessary, in order to prevent the spreading of
the fire, to pull down or otherwise demolish any building, the same
may be done by their joint order."
It appears that at the fire here in question, the chief engineer
and a number of the assistant engineers were present. Upon that
subject there is no controversy.
The case was first tried in the district court of the United
States for that district.
The learned judge who presided at the trial directed the
Page 101 U. S. 18
to render a verdict for the defendant, which was accordingly
The plaintiff in error excepted, and having embodied in the
record all the evidence given on the trial, sued out a writ of
error and removed the case to the circuit court.
There the judgment of the district court was affirmed. A further
writ of error has brought the case here for review.
It is now a settled rule in the courts of the United States that
whenever, in the trial of a civil case, it is clear that the state
of the evidence is such as not to warrant a verdict for a party,
and that if such a verdict were rendered, the other party would be
entitled to a new trial, it is the right and duty of the judge to
direct the jury to find according to the views of the court. Such
is the constant practice, and it is a convenient one. It saves time
and expense. It gives scientific certainty to the law in its
application to the facts and promotes the ends of justice.
Merchants' Bank v. State
10 Wall. 604, 77 U. S. 637
Improvement Company v.
14 Wall. 442; Pleasants
22 Wall. 116.
The rule in the English courts is substantially the same.
Ryder v. Wombwell,
Law Rep. 4 Ex. 32; Giblin v.
Law Rep. 2 P.C. 335. In the latter case it was
"In every case, before the evidence is left to the jury, there
is a preliminary question for the judge, not whether there is
literally no evidence, but whether there is any upon which a jury
can properly proceed to find a verdict for the party introducing
it, upon whom the onus of proof is imposed."
At the common law, everyone had the right to destroy real and
personal property in cases of actual necessity to prevent the
spreading of a fire, and there was no responsibility on the part of
such destroyer and no remedy for the owner. In the case of The
12 Rep. 13, it is said:
"For the Commonwealth a man shall suffer damage, as for saving a
city or town a house shall be plucked down if the next one be on
fire; and a thing for the Commonwealth every man may do without
being liable to an action."
There are many other cases besides that of fire -- some of them
involving the destruction of life itself -- where the same rule is
applied. "The rights of necessity are a part of the law."
Page 101 U. S. 19
357, 1 U.S. 362
also Mouse's Case,
12 Rep. 63; 15 Vin., tit. Necessity, sec.
8; 4 T.R. 794; 1 Zab. (N.J.) 248; 3 id.
591; 25 Wend.
(N.Y.) 173; 2 Den. (N.Y.) 461.
In these cases the common law adopts the principle of the
natural law, and finds the right and the justification in the same
imperative necessity. Burlem. 145, sec. 6; id.,
159, c. 5,
secs. 24-29; Puffendorf, B. 2, c. 6.
The statute of Massachusetts, as far as it goes, gives as a
bounty that which could not have been claimed before. How far the
statute trenches upon the legal and natural right which everyone
possessed prior to its enactment is a subject we need not
All the questions arising in this case are questions of local
law. It is our duty to consider the controversy as if we were a
court of the state, and sitting there to apply her
The subject was within her police power, and it was competent
for her to legislate upon it as she might deem proper. It is wholly
beyond the sphere of federal authority.
Whether the statute is to be construed strictly, as being in
derogation of the common law, or liberally, as being remedial in
its character, are points within the exclusive cognizance of her
tribunals. The jurisdiction of the district court arose from the
incidental fact that a claim in behalf of a bankrupt's estate was
involved, and that his assignee was the plaintiff.
In order to charge the city,
"the remedy being given by statute only, the case must be
clearly within the statute. . . . The city is responsible by force
of the statute only, and such responsibility is limited to the
cases specially contemplated."
Taylor v. Plymouth,
8 Metc. (Mass.) 465.
The law of the case has been clearly laid down by the highest
judicial court of the state, and we cannot do better than quote it
"The plain intent of the statute is that no house or building
shall be demolished unless it shall be judged necessary by three
fire wards, or by the other officers authorized to act in their
absence or where no fire wards have been appointed. It is the
united judgment of the officers to whom the power is given,
Page 101 U. S. 20
acting upon the immediate exigency, and determining the
necessity, which is contemplated by the statute. Its language is
capable of no other reasonable interpretation. It is a joint
authority expressly given to the officers designated, acting
together, and cannot be exercised by a minority or by any one of
"It is not sufficient, therefore, that a general conclusion or
judgment was arrived at by the three fire wards or the other
officers mentioned, that it was necessary to destroy some buildings
in order to put a stop to the further extension of a fire. They
must go further. They must determine upon the particular house or
building which they shall adjudge necessary to be destroyed for the
purpose. This cannot be left to the individual judgment of any one
of the fire-wards."
Ruggles v. Inhabitants of Nantucket,
11 Cush. (Mass.)
The validity of the ordinance creating the fire department was
not questioned in the argument here, and we see no reason for doubt
upon the subject. The statute which authorized the ordinance
declared that "the engineers or other officers," appointed pursuant
to the provisions of the latter, should be clothed with all the
powers and duties "conferred upon fire wards by the Revised
Statutes or special acts relating to the City of Boston now in
force," and that the city council might "make such regulations in
regard to their conduct and government" as it might see fit to
ordain. For all the purposes of this case, the engineers were fire
wards at and during the fire here in question. Several things were
necessary to the validity of an order for the destruction of the
tenement of the bankrupt:
At least three engineers of the fire department -- the chief
engineer, if present, being one -- must have consulted together
touching the blowing up of that particular building.
They must all have arrived at the conclusion that it was
necessary to destroy it in order to arrest the progress of the
They must all jointly and specifically have ordered that
building to be destroyed.
Upon looking carefully through the record, we have failed to
find the slightest proof that any three of the fire engineers
Page 101 U. S. 21
ever consulted in relation to destroying the building to which
this controversy relates; that any three, jointly or severally,
expressly or by implication, gave an order that it should be
destroyed, or that this particular building was ever present to the
minds of any three of the engineers in that connection.
The mayor was on the ground early after the commencement of the
fire, and was there, actively engaged, until the next morning. He
heard consultations as to the use of gunpowder, but his testimony
is an entire blank as to the points here under consideration.
The chief engineer was called by the plaintiff and was fully
He gave authority to numerous persons according to this
"Colonel Shepard will blow up buildings or remove goods as his
"J. S. DAMRELL, Chief Engineer
The utter nullity of such an instrument is too plain to require
In the course of the chief engineer's testimony these questions
and answers occur:
"Q. You and the engineers did not direct the blowing up of any
buildings in Boston by gunpowder?"
"A. No, sir. Not when I was present. If any three engineers did
so when I was not present, I have yet to learn the fact."
"Q. Did you know that any three engineers directed the
demolishing of any building by gunpowder?"
"A. I do not know the fact."
The building was blown up by General Burt, the postmaster of
Boston. He had a written paper from the chief engineer, and it was
in his possession when he testified. The document is not in the
record, and its contents are not shown. Upon the points here in
question, his testimony was as follows:
"Q. Did you at any time consult with three of the engineers of
the city, after you started the scheme of blowing up? "
Page 101 U. S. 22
"A. I don't think we did. I had in my mind distinctly what to
do, and we stuck to it until we got it done."
"Q. You used your own discretion entirely?"
"A. I intended to. I intended to keep that line plumb up, if I
could, and not to let it get into the new post office building, and
not get over into this part of the city."
These witnesses are unimpeached and uncontradicted, and what
they say is conclusive. It is unnecessary to refer particularly to
the rest of the testimony. Nothing is to be found in it in conflict
with the parts we have quoted. It affords no ground for a plausible
conjecture that the facts were otherwise. The plaintiff not only
failed to prove what he claimed, but his own testimony
counter-proved it and established the negative. The proposition was
vital to his case.