Case v. Montana · ¶40
From before the founding through the present day, the common law has generally permitted a private citizen to enter another's house and property in order to avert serious physical harm. In those circumstances, and many others, courts have historically held that property rights give way to concern for human safety. See, e. g., 37 Hen. 6, pl. 26; Mouse's Case, 12 Co. Rep. 63, 77 Eng. Rep. 1341 (K. B. 1608); Respublica v. Sparhawk, 1 Dall. 357, 363 (Pa. 1788); Ploof v. Putnam, 81 Vt. 471, 474–475, 71 A. 188, 189 (1908). Courts have long described property-law necessity defenses like these as turning, too, on the adequacy of the defendant's judgment, not a post-hoc assessment of necessity in fact. See, e. g., Mitchell v. Harmony, 13 How. 115, 134–135 (1852); Stone v. Mayor of City of New York, 25 Wend. 157, 176 (N. Y. 1840) (opinion of Verplanck, Sen.); Surocco v. Geary, 3 Cal. 69, 72…Read in context ›
preliminary print (page proof)
Source edition
Passage preview. Read in context for the complete text, notes and references.