Bowditch v. Boston

CourtUnited States Supreme Court
Writing for the CourtSWAYNE
Citation25 L.Ed. 980,101 U.S. 16
PartiesBOWDITCH v. BOSTON
Decision Date01 October 1879

101 U.S. 16
101 U.S. 16
25 L.Ed. 980
BOWDITCH
v.
BOSTON.
October Term, 1879

ERROR to the Circuit Court of the United States for the District of Massachusetts.

The facts are stated in the opinion of the court.

Mr. George W. Morse for the plaintiff in error.

Mr. J. P. Healy, contra.

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 case:——

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 the bankrupt.

Page 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, sect. 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.' Id., sect. 5.

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, sect. 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 fires,' &c. Id., sect. 6.

'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.' Id., sect. 11.

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 jury

Page 18

to render a verdict for the defendant, which was accordingly done.

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 Bank, 10 Wall. 604, 637; Improvement Company v. Munson, 14 id. 442; Pleasants v. Fant, 22 id. 116.

The rule in the English courts is substantially the same. Ryder v. Wombwell, Law Rep. 4 Ex. 32; Giblin v. McMullin, Law Rep. 2 P. C. 335. In the latter case it was said: '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 every one had the right to destroy real and personal property, in cases of actual...

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110 practice notes
  • Orr v. United States, No. 18-1894L
    • United States
    • Court of Federal Claims
    • August 30, 2019
    ...a fire, and there was no responsibility on the part of such destroyer, and no remedy for the owner.'" (quoting Bowditch v. City of Boston, 101 U.S. 16, 18 (1879)). Further, quoting Bowditch v. City of Boston, defendant claims that "'[t]here are many other cases besides that of fire,—some of......
  • Customer Co. v. City of Sacramento, No. S035410
    • United States
    • United States State Supreme Court (California)
    • June 12, 1995
    ...7 S.Ct. 490, 30 L.Ed. 634 [military demolition of railroad bridges in path of advancing Confederate forces]; Bowditch v. Boston (1879) 101 U.S. 16, 25 L.Ed. 980 [building in Page 692 path of urban conflagration]; Surocco v. Geary (1853) 3 Cal. 69, 73 [house in path of spreading urban fire "......
  • Ketterman v. Dry Fork R. Co
    • United States
    • Supreme Court of West Virginia
    • December 21, 1900
    ...to the jury, but may direct a verdict for the defendant, "— citing Herbert v. Butler, 97 U. S. 319, 24 L. Ed. 958; Bowditch v. Boston, 101 U. S. 16. 25 L. Ed. 980: Griggs v. Huston, 104 U. S. 553, 26 L. Ed. 840; Randall v. Railroad Co., 109 U. S. 478, 3 Sup. Ct. 322, 27 L. Ed. 1003; Commiss......
  • Jaarda v. Van Ommen, No. 78.
    • United States
    • Supreme Court of Michigan
    • February 1, 1934
    ...of confusion or chaos, demand the enactment of laws that would be thought arbitrary under normal conditions (Bowditch v. Boston, 101 U. S. 16, 18, 19, 25 L. Ed. 980;American Land Co. v. Zeiss, 219 U. S. 47, 31 S. Ct. 200, 55 L. Ed. 82). Although emergency cannot become the source of power, ......
  • Request a trial to view additional results
106 cases
  • Orr v. United States, No. 18-1894L
    • United States
    • Court of Federal Claims
    • August 30, 2019
    ...a fire, and there was no responsibility on the part of such destroyer, and no remedy for the owner.'" (quoting Bowditch v. City of Boston, 101 U.S. 16, 18 (1879)). Further, quoting Bowditch v. City of Boston, defendant claims that "'[t]here are many other cases besides that of fire,—some of......
  • Pennsylvania Coal Co v. Mahon, No. 549
    • United States
    • United States Supreme Court
    • December 11, 1922
    ...and if they go beyond the general rule, Page 416 whether they do not stand as much upon tradition as upon principle. Bowditch v. Boston, 101 U. S. 16, 25 L. Ed. 980. In general it is not plain that a man's misfortunes or necessities will justify his shifting the damages to his neighbor's sh......
  • Customer Co. v. City of Sacramento, No. S035410
    • United States
    • United States State Supreme Court (California)
    • June 12, 1995
    ...7 S.Ct. 490, 30 L.Ed. 634 [military demolition of railroad bridges in path of advancing Confederate forces]; Bowditch v. Boston (1879) 101 U.S. 16, 25 L.Ed. 980 [building in Page 692 path of urban conflagration]; Surocco v. Geary (1853) 3 Cal. 69, 73 [house in path of spreading urban fire "......
  • McCutchen v. United States, 2020-1188
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • October 1, 2021
    ...and lives of its soldiers," specifically, in the belief that it would prevent the spread of infectious disease); Bowditch v. City of Bos., 101 U.S. 16, 18-19 (1879) (finding no compensable taking for the destruction of property to prevent the spread of fire, explaining that "[a]t the common......
  • Request a trial to view additional results
4 books & journal articles
  • The Limitations of 'Sic Utere Tuo...': Planning by Private Law Devices
    • United States
    • Land use planning and the environment: a casebook
    • January 23, 2010
    ...go—and if they go beyond the general rule, whether they do not stand as much upon tradition as upon principle. Bowditch v. Boston, 101 U.S. 16. In general it is not plain that a man’s misfortunes or necessities will justify his shifting the damages to his neighbor’s shoulders. Spade v. Lynn......
  • The Regulatory Takings Battleground: Environmental Regulation of Land Versus Private-Property Rights
    • United States
    • Land use planning and the environment: a casebook
    • January 23, 2010
    ...to prevent the spreading of a fire” or to forestall other grave threats to the lives and property of others. Bowditch v. Boston, 101 U.S. 16, 18-19 (1880); see United States v. Pacific R., Co., 120 U.S. 227, 238-39 (1887). Page 380 Land Use Planning and the Environment: A Casebook all econo......
  • Making Sense of Penn Central
    • United States
    • Environmental Law Reporter Nbr. 39-6, June 2009
    • June 1, 2009
    ...at the other two Penn Central factors, the 93. Id. at 1027-29. 94. Id. at 1026. 95. Id. at 1029, n.16, quoting Bowditch v. Boston , 101 U.S. 16, 18-19 (1880). 96. Id. at 1026 n.16, citing, e.g., Hadacheck v. Sebastian, 239 U.S. 394 (1915); Goldblatt v. Hempstead, 369 U.S. 590 (1962). 97. 48......
  • LAND USE REGULATIONS, CLIMATE CHANGE, AND REGULATORY TAKINGS.
    • United States
    • Environmental Law Vol. 52 Nbr. 2, March 2022
    • March 22, 2022
    ...that in some circumstances the government may take the property of an individual in order to prevent a greater, imminent danger). (208) 101 U.S. 16 (209) Id. at 18. (210) 276 U.S. 272 (1928). (211) Id. at 276. (212) 344 U.S. 149 (1952). (213) Id. at 153-54. (214) Id. at 156. (215) TrinCo In......

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