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[L]and, and rivers, and any part of the sea which is become the property of any people, ought not to be shut against those who have need of transit for just cause; say, because being expelled from their own country they seek a place to settle; or because they seek traffic with a remote nation.46

The idea is this: by introducing private property we make possible the enjoyment of rights no one had before and allow persons to impose on others duties to which no one was subject before. Persons in the first of the two categories in Grotius’s example are, like homeless citizens, in a situation in which they bear only the new duties and enjoy none of the new rights.47 The right of harmless use, here, serves to limit the right to exclude so that it does not leave anyone with literally nowhere to go. My point in emphasizing this example isn’t just that it shows that the burden of the right is arguably modest. It is rather that it shows that it, and the foundational presumption more generally, do not serve to subordinate owners’ authority to the contingent interests of others. They serve instead to limit property rights in a way that respects the fact that in introducing private property we introduce a normative mechanism by which persons can be made vulnerable to, and by virtue of, the actions of others in a way that they were not before.

5. Saving Property and Public Necessity

I’ve worked throughout this chapter with the example of someone saving her life by trespassing on or damaging another’s property. In this section I will ask whether and if so how the Grotian account I’ve defended applies in cases in which what is defended is property and in cases of public rather than private necessity.

1. Grotius does not address the question whether life and limb cases and property cases rest on the same grounds. When he introduces the right of necessity he does so with a list of examples that are ambiguous on this point (stopping the spread of a fire, freeing a ship caught up in nets), though elsewhere he seems to treat cases of poverty as paradigmatic.

I think the answer most consonant with his account is that property cases are in ways akin to but not in all respects the same as life and limb cases. The conceptual tools necessary to account for the property cases, I’d suggest, are deployed by Grotius in his account of the duties of finders. He says:

[A]s in the state of community of things, a certain equality came to be observed, so that one might be able to use those common things not less than another; so when ownership is introduced, there is a sort of association established among owners, that he who has it in his power a thing belonging to another, is to restore it to the owner. For if ownership were only

46Grotius 1625, Bk. II, ch. 2, para. 13.1. He adds ‘or because they seek their own in a just war’. I omit that from the discussion above because it adds complications unnecessary to the point at hand.

47I borrow this characterization of the situation of the homeless from Waldron 2009, 166. Waldron argues that the institution of private property must be justifiable to persons in such a situation, and that this entails a right to the use of public spaces. I think Grotius anticipates this sort of argument.

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so far effective, that the thing is to be restored to the owner if he asks for it, ownership would be too feeble, and custody too expensive.48

In the original community our equality expresses itself in our each having a right to use common things no less than any other. Once ownership is introduced it requires us to regard ourselves as part of a kind of association that insures owners, in a limited way, against the costs of accidental dispossession. It does so by imposing modest duties on finders. One way to think about this argument is as holding that a kind of formal equality is constant between the two regimes, but is articulated in different duties in each. Another—perhaps just a way of filling out the first—starts with the observation that by introducing private property we make possible kinds of vulnerability that would not have obtained in the original community. The person who has lost something cannot simply replenish her stocks from the commons, so the regime of private property would be an unduly burdensome one for her if finders were in fact keepers, at least in cases in which the duties on the finder are lightly borne.

Now suppose that luck arbitrarily selects my property for destruction and I can save it by damaging yours. We might argue that the same equality-respecting association among owners that imposes duties on finders grants rights of self-help to the imperilled property owner. This seems clearest in cases where the stakes are high and the costs low: where say, my property is priceless and the damage I’d cause to your property minor and easily repairable. But, arguably, the balance is irrelevant in light of the duty to repair.

I say ‘arguably’ because whether that is so depends on how we think of the relationship between the right of necessity and the duty of repair. When he introduces the duty of repair Grotius says, ‘when it is possible, restitution [must] be made’.49 This implies that one has the right unqualified, and then the duty independently, which duty is defeasible under some unspecified conditions of impossibility. Restitution might be impossible because the property damaged was priceless but I think Grotius had a different kind of case in mind. The idea that the right of necessity and the duty of repair are independent is most plausible in lifepreserving cases, for example one in which an impecunious and starving person steals food.50 On this view of the relationship between the right of necessity and the duty of repair, we can understand the intuition that property cases be subject to a condition that requires that the value of the property saved be greater (perhaps substantially greater) than the costs imposed on the other property owner. But even this can’t be right: I can’t be insured against my losses, free of charge, by everyone whose property happens to be of lesser value. This suggests, I think, that the association-among-owners rationale requires us to understand the relationship

48	Grotius 1625, Bk. II, ch. 10, para. 1.2.	49 Grotius 1625, Bk. II, ch. 2, para. 9.
50	Alan Brudner pointed out to me that on	Grotius’s account of the duty of repair as I’ve

reconstructed it we would say of an impecunious imperilled trespasser not that she had a defence to the property owner’s claim or (merely) that she was judgment-proof, but rather that she was not under a duty to repair, because in her case by leaving costs where they fall she would not be taking any more than she needed.

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between the right of necessity and the duty to repair to be different in propertysaving cases. When property is at stake, one’s right is conditional on one’s having the means to discharge the duty of repair.

I’m not sure even that interpretation answers a more basic worry about property cases. How could anyone’s property interests, we might ask, license them to determine how my property ought to be used? There might not be an answer to that challenge, but I think the account drawn by analogy from Grotius’s account of the duty of finders makes as strong a case in favour of the application of the doctrine of necessity to property cases as can be made.

2. According to the Restatement, public necessity is invoked by an individual seeking to prevent a ‘public disaster’ (s. 196). What does ‘public’ mean here? As I stated above, the drafters seem to mean by a public disaster one that affects many people (floods, fires, etc.). But I think some cases reflect another sense of public (sometimes as well), and arguably more than one sense of necessity. Let’s consider three cases that will illustrate the distinctions I mean to draw.

Mouse’s Case.51 In a storm on a river one person’s goods are thrown overboard by others to save them all. Had the goods not been thrown overboard the barge would have sunk and all would have been lost. The owner’s claim to recover the costs from other passengers fails.

The King’s Prerogative in Saltpetre.52 The King’s agents may dig for saltpetre, a component of gunpowder, on anyone’s land, and owe no compensation. But they must be respectful in a number of ways: they must dig where it is least obtrusive, only during the day, not come back often, etc.

Dwyer v Staunton.53 A number of persons cross onto the plaintiff ’s land when a storm renders the highway impassible. The plaintiff ’s claim in trespass fails. The court holds that private citizens may drive on others’ property—and, in fact, may enter it forcibly—when the roads are blocked owing to sudden and temporary causes, such as snowstorms. They must take other routes if possible, and cause no more damage than is necessary. But they need not be in a state of emergency themselves, and need not compensate the owner for unavoidable damage brought about by the exercise of this right.

Though sharing the property of departing from the paradigmatic cases of private necessity on one or more points, these comprise a conceptually heterogeneous class.54 There are two principal points of complexity.

51	1608.	52	1606.	53	1947.
54	These three cases are collected under public necessity by Baudouin and Linden 2010, 467. While

Mouse’s Case and Saltpetre are commonly classified as cases in public necessity, the inclusion of Dwyer is a bit controversial. One point of controversy is whether the right of trespass in such cases is a species of the right of necessity. The court in Dwyer represented necessity as one of two justificatorily sufficient grounds to deny recovery. (The other is the principle salus populi suprema lex.) Sissons DCJ cites an earlier American case, Morey v Fitzgerald 1884, that unequivocally rests the traveller’s right to trespass in circumstances on necessity, as does the court in Cambell v Race 1851, to which the court in Morey refers. But the Restatement excludes such cases from the category of public necessity, covering them instead in an adjacent section, 195 (‘Deviation from Public Highway’). Of course the fine-grained

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The first is what counts as public. Mouse’s Case illustrates the simpler version of one of two senses of public at work here, what we might call its aggregate sense. Necessity is public, in this sense, when it involves many people. In Mouse’s Case the imperilled group included the plaintiff. Let’s stick for now with that factual structure; later in this section I’ll ask what the impact on the analysis is if the owner is not among the group of persons who save themselves by using her property.

The classic case of pulling down a house to stop the spread of fire and so to save a town is, at one level, like Mouse’s Case so far as the nature of public is concerned,55 but it introduces a complexity. A town is a corporate and legal entity. So there is an institutional sense of public engaged by such a case. The same is true in Saltpetre. On the one hand, there the court emphasizes that the property owner from whom the saltpetre is taken is a member of a group that shares in the overall benefit realized by the imposition of the cost, as Mouse was. But they also emphasize that this right is importantly and inalienably the King’s. It is in the name of the defence of the realm that it may be exercised. Let’s call this the political sense of public. This is the only sense at issue in Dwyer. There trespassers claim a right against a property owner in the name of a public right secured by the state, namely the right to travel through the realm.

While the sense of necessity in Mouse’s Case is just like that in the sort of case we have been considering throughout this chapter, it is different in Dwyer, and the point is complex in Saltpetre. In Dwyer, recall, the trespassers themselves were not in a state of necessity, at least not a dire one: they just wanted to go home, and there was no other way to do so. The ‘necessity’ in such cases derives, we might say, from the unqualified nature of the public right in whose name the defendants claim the right to trespass. What about Saltpetre? To the extent that the King’s agents take private persons’ property on the grounds that otherwise everyone’s life or at least well-being is at stake they act subject to the sort of necessity that characterizes private necessity cases. To the extent that they act under the particular authority of the King, in defence of everyone not qua group of individuals but qua subjects of the realm, they arguably don’t act under the same sort of necessity; nor under the necessity in Dwyer. Arguably, in this sense, they don’t act under necessity at all, at least no more than we would say a state does in, for example, imposing conscription.

sorting is not necessarily dispositive of the conceptual question of the foundations of the right. More significant is that s. 195 imposes a duty of repair on the trespasser, suggesting that if anything the reporters regarded such cases as instances of private necessity. Notwithstanding these complexities I include Dwyer and like cases in the category for three reasons. The first is just that they are sometimes so regarded. The second is that, as I will argue in this section, elements of the structure of the claim in Dwyer and like cases are found in cases that are undeniably cases of public necessity, and it is helpful to consider cases in which those elements are closer to the surface. Finally, my question here is to what sort of cases does the right of necessity on the Grotian account extend, and so it seems right to begin with an inclusive sense of the category of public necessity.

55 And, I think, in factual structure as well. It’s hard to imagine a situation in which the spread of fire could be stopped by pulling down a house and that house not be in the path of the fire and so fated to be lost.

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What I want to suggest is that in cases in which the necessity is like that in private necessity cases and the sense of public is aggregate, public necessity cases fall under the same account as private ones. There is nothing in the fact that many individuals’ lives are at stake that affects the foundation of the right of necessity. What needs to be explained is why in such cases compensation is not owned. First, here is a twist. Mouse’s Case was decided as it was because it happened on a river. Had it happened at sea, Mouse would have had the benefit of the law of general average, which would have required those whose cargo was spared to collectively make up his loss. The coexistence of the two rules in one system is explicable by the fact that the law of general average has its own, very long history.56 If we were starting from scratch, however, arguably we would not have different rules for cases at sea and cases occurring elsewhere. So let’s ask: which rule, if either, does the Grotian account prefer?

The way to answer that question is to ask whether the justification for the duty of repair applies in the facts of Mouse’s Case. That justification, again, rests on the principle that damaging without compensation is an instance of taking more than one needs, as one would if one kept property when all that was necessary was borrowing it, or destroyed it when merely using it would have sufficed. Now: would the defendants in Mouse’s Case be taking more than they needed if they did not compensate Mouse for his loss? It’s at first not clear how to answer that. Here is a suggestion. Recall that Mouse’s goods would have been lost anyway, and that Mouse is a beneficiary of their having been lost as they were. So if he were compensated, he would be better off than had his goods not been thrown overboard. It seems to me that we can say that if the plaintiff is left better off relative to the status quo ante after being compensated then the defendant has been asked to do more than take only what is necessary. And if we can say that, then we can explain why the defendants need not compensate in cases like Mouse’s Case on the same grounds that they must in the sort of case we have been considering to this point.

But that’s a bit quick, on textual and on conceptual grounds. The textual point is that Grotius endorses the law of general average in the context of cases of goods thrown overboard at sea. Let’s consider the rationale he provides. He says:

the owners of goods which are thrown overboard to lighten the ship, recover a part from the others whose good are saved by that proceeding; for a person who preserves, by any step, his property which was in danger of perishing, is by [doing so] so much the richer.57

In other words (I think we can say): we might conclude that in fact those whose goods survive do take more than was necessary if they do not compensate, in just the way that anyone who saves his property at the expense of another would.58

56On which see Cooke and Cornah 2008, 1–19. On the evolving rationales for the rule see in particular Cooke and Cornah 2008, 9–15 and Rose 2005, 6–14.

57Grotius 1625, Bk. II, ch. 10, para. 9.2. My addition.

58The argument here has the feel of a claim in unjust enrichment. I have argued elsewhere that, while it seems promising for many reasons, the view that the duty to repair bears the structure of a claim in unjust enrichment does not bear careful scrutiny. The main stumbling block is that sense cannot be made of measuring the defendant’s gain by the plaintiff ’s loss in such cases, as the unjust

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So which answer is right? That depends, it seems, on what the right baseline is. Do we measure the plaintiff ’s post-jettisoning position against the state of affairs in which she would have been had no cargo been tossed overboard, or against the position of her fellow passengers, whose property was preserved? I don’t think the principle underlying the duty to repair in the private necessity cases can by itself answer this question. To this extent the Grotian account reproduces the common law’s ambivalence.59

Note that the Grotian account does unambiguously assign significance to the distinction between cases in which the plaintiff is a member of the group that benefits from the invasion of her property rights and those in which she is not. The case in favour of interpreting the principle underlying the duty to repair in private necessity in the way that denies the plaintiff ’s recovery rests on her sharing in the benefit realized through the use or destruction of her property. Compensation would leave her better off than she would have been and so imposing the duty to repair would arguably burden defendants with a greater obligation than merely taking no more than they need. It follows that on the Grotian account if the plaintiff was not among the beneficiaries of the use or destruction of her property there is no basis to deny her compensation. If it is analytic that no compensation is due in public necessity then let’s call such cases multi-party private necessity cases. The claim of Mouse’s Case to a place in the category of public necessity rests on Mouse’s having been among the beneficiaries of his goods being lost, because it is only in virtue of that property that a case in support of the court’s denial of his claim for compensation can be made out.

Let’s wrap things up by considering Saltpetre and Dwyer. At one level Saltpetre continues to be like Mouse’s Case. Understood as resting on the aggregate sense of public, this is a public necessity case in the sense I just specified, and carries with it the same rationale for relieving the trespassers of the duty to repair. The property owner is among the beneficiaries of the realm’s defence. To the extent, however, that the right in Saltpetre rests on its being an exercise by the King’s agent of an inalienable right and duty of the crown the conceptual basis for denying compensation must be found elsewhere, in principles distinctive of public law.60 This seems to me to be true of cases such as Dwyer, which involve private citizens using other private citizens’ property in the name of a distinctively public right.

So in sum: for one particular subset of the category, the Grotian account extends to, or at least illuminates, cases of public necessity, and the ones to which it does not

enrichment account requires. See Klimchuk 2001. I made the case in the context of private necessity but it seems to me to carry over into public necessity cases.

59This ambivalence is expressed by the drafters of the Restatement who reserve judgment on the question whether compensation ought to be due in public necessity cases, arguing that on the one hand morality requires it but acknowledging on the other the right of states to immunize those acting on their behalf from liability.

60Though maybe these levels of analysis come together. They might for Kant. This is suggested by analogy with his claim that, as beneficiaries of a rightful condition, the wealthy have an obligation to the poor that the state may uphold through taxation. See The Metaphysics of Morals in Gregor 1996, 468 (6: 326).