PAGE v. TOWN OF WARRENTON, 210 F. 431

KELLER, District Judge. W. W. Page, a citizen and resident of the state of New York, was the owner of a house in the town of Warrenton, Va. Oil October 29, 1910, a fire occurred in the town of Warrenton, and the house of Mr. Page was. destroyed by the officers of the town for the purpose of stopping the spread of fire. Thereafter, said Page brought his action of trespass in the lower court, laying his damage at $5,000.

A demurrer was interposed to the original declaration; an amended declaration was filed, which was also ■ demurred to; the demurrer was sustained and the action dismissed ; to which action of the court the plaintiff sued out his writ of error, assigning as error the sustaining of the defendant's demurrer and the entering of judgment for the defendant town.

We do not deem it necessary to reproduce in full the plaintiff’s declaration, but the following paragraphs, extracted from it, will be helpful in making clear the point in controversy: After the opening paragraph the plaintiff states his cause of action thus “Tliat heretofore, to wit, on the 20th day of October, 1910, the said plaintiff was the owner in fee simple of a two-story frame, metal roof building and addition attached thereto, No. 38 on the East Side of Culpepper street, block No. 12, in the said town of Warrenton, and the said plaintiff avers that on the day aforesaid, a church which was a considerable distance from the said-plaintiff’s building was on fire, and that the said defendant, its officers and agents, wrongfully and unlawfully blew up, tore down and - destroyed his said dwelling house and addition attached thereto, and said plaintiff further avers that there is a statute law of the state of Virginia, in such cases made and provided, being sections 1060, 1061, and 1062 of the Code of Virginia of 1904, as follows: “ ‘Sec. 1060.

The principal engineer, or the warden commanding in his absence, may direct the pulling down or destroying of any fence, house, or other thing which he may judge necessary to be pulled down or destroyed, to prevent the further spreading of the fire, and for this purpose may require such assistance from all present as he shall judge necessary. “• ‘Sec. 1061. The owner of such property shall be entitled to recover from the city or town the amount of the actual damage which he may have sustained by reason of the same having been pulled down or destroyed under such direction. “ ‘See. 1062. The preceding

section shall not enable any one to recover .compensation for property, which would have be’en destroyed by the'fire, if the same had not been pulled down or destroyed under such direction, but only for what could have been saved with ordinary care and diligence, had no such direction been given.’ ” The declaration then goes on to aver that the town had no chief engineer or warden as contemplated by the statute cited, but that it had a mayor and a recorder, and cites passages from the charter of the town in regard to the general powers and duties of the mayor and quotes a provision .in the charter that in the absence of the mayor his-duti.es devolve upon the recorder.

He then proceeds: “And the said plaintiff further avers that at the time of the destruction of his house, as aforesaid, that the mayor, the said defendant (sic) was ah-, sent, but the said plái ntiff hvérs that the said recorder was present at the said fire and approved and directed the destruction oí said plaintiff’s Rouse as aforesaid. “And the said plaintiff avers that his said building and addition thereto would not have been destroyed by the said fire, if the same had not been blown up, pulled down, and destroyed by the said defendant, its officers and agents, as aforesaid, and the said plaintiff avers that by reason of the premises aforesaid he has sustained loss and damage in the sum of $5,000; and therefore he brings his suit.”

Chapter 45 of the Code of Virginia of 1904, embracing sections 1049 to 1067, inclusive, relates to the formation of volunteer fire companies in cities and towns, and provides for the conditions under which such companies may be formed and their duties and organization.

Section 1053 provides: “In every city or town in which there is any such company (italics ours), there shall be appointed, at such time and in such manner as the council of such city or town may prescribe, a principal engineer, and as many fire wardens as the council may direct.” Subsequent sections of this

chapter designate the principal engineer and fire wardens so appointed, and the commanders of fire companies, as the fire department of such city or town; prescribe their duties as to attending fires, their authority, etc. We then come to the sections quoted in the plaintiff’s declaration. This

chapter must be read as a whole, and, when so read, it evidently provides for a permissive system under which the towns and smaller cities of Virginia were authorized by the Legislature to provide more or less effectually against fires. Manifestly, as a prerequisite to the authority of the town council of Warrenton to appoint a “principal engineer or fire warden,” there must have been- organized a fire company under the act, because the language of

section 1053 heretofore quoted limits the authority to appoint to such a case. The declaration is utterly silent as to the existence of such a company, and we may take it, for the purposes of this case, that there was no such fire company in Warrenton. If so, there was no authority in the town council to organize a fire .department under the act, and the law in force there was and i„ the old common law, under which, as is well known, no recovery can be had for property of the citizen destroyed to prevent the spread of fire. Beach v. Trudgain, 2 Grat. (Va.) 220; Amick v. Tharp, 13 Grat. (Va.) 570, 67 Am. Dec. 787.

While the foregoing is sufficient to vindicate the course of the learned trial judge in sustaining the defendant’s demurrer to the plaintiff’s declaration, we desire to say that, even had the declaration averred the existence of a company or companies organized under the provisions of

chapter 45 of the Code, still, in our judgment, the demurrer would have to be sustained because of its failure to show the appointment by the council of any one with authority to act under the provisions of

section 1060.

As was well said by the learned trial judge in his memorandum opinion filed October 3, 1912: “The lawmaking body may well have left to the chief of the fire department of his representative next in authority, the discretion of when and when not to destroy a building to prevent the spread of fire, at the town’s expense, when it would never for a moment have thought of leaving to the mayor or town clerk, the exercise of such discretion.” The statute being plain and the averment being made in the declaration that there was no principal engineer or warden, it follows that there was no officer in the town of Warrenton lawfully authorized to bind the town in respect of the destruction of buildings to prevent the spread of fires.

Affirmed.