Nathaniel Ruggles vs. The Inhabitants of Nantucket, 11 Cush. 433

Bigelow, J. The defendants can be held responsible m this case solely under Rev. Sts. c. 18, §§ 4, 7, by which it is provided that towns shall be liable' in certain cases for the value of buildings which are “ pulled down or demolished, in order to prevent the further spreading of a fire.” Unless, therefore, the evidence offered by the plaintiff at the trial orings his case within these provisions, he cannot recover i» this action. Taylor v. Plymouth, 8 Met. 465. Upon looking at the evidence, it is clearly insufficient to establish two essential facts, which lie at the foundation of the plaintiff’s claim. By

section 7 the right to recover compensation is given only to the “ owner ” of the house or building destroyed. In this case, it does not appear that the plaintiff was the owner at the time of the fire. On the contrary, the evidence shows that he then had neither a legál or equitable title to the premises. The legal estate was in Timothy Hussey, and the plaintiff had no right to a conveyance of it, under his agreement for its purchase, until he had paid the entire purchase-money. But he had in fact paid only $600 towards it, and $1,400 were still due.

He had not, therefore, such a right as would enable him to claim and enforce a conveyance from the owner of the legal estate. Assuming the ground taken by the plaintiff to be correct, upon which we express no opinion, that a full and clear equitable title would come within the provisions of the statute, so that a cestui que trust could be considered an owner, and entitled to claim compensation, it is clear that the plaintiff did not hold even such a title to the estate at the time of the fire. He can, therefore, in no proper sense be deemed its owner, so as to maintain this action.

An equally fatal defect in the plaintiff’s proof is, that he does not show that the house was destroyed by the order of three firewards, as is required by

section 4. 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 firewards have been appointed. It is the united judgment of the officers to whom the power is given, 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 them. It is not sufficient, therefore, that a general conclusion or judgment was arrived at by 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 firewards. Coffin v. Nantucket, 5 Cush. 269. In the case at bar, the evidence fails to show any joint judgment of the firewards, as to the necessity of destroying the house, the value of which the plaintiff seeks to recover in this action. It was done upon the judgment and direction of one fireward only. On this ground it is clear that the plaintiff fails to make out his case. Plaintiff nonsuit.