Necessity

Privilege to invade property interest of another when circumstances deem it necessary to prevent great harm to another person or more valuable property.

Mistake IS allowed:

If there is an appearance of necessity then the person has a right to act on that necessity even if it was wrong.

1. Public necessity privilege is not limited to public officials; private citizens can act on behalf of public necessity.

2. NEED to establish that it is necessary for the COMMUNITY not simply an individual

3. If a public action is an action of “taking” private property simply for public use then the Constitution requires that there be compensation.

4. Courts have made a distinction between taking (constitution says pay) and destroying (constitution says don't have to pay).

1. In private necessity there is a privilege to trespass, but are still liable for any damage.

2. Privilege exists when necessary to avoid harm to D, others, or property and there is no reasonable less-damaging means of protection

3. Land owner may not interfere with trespasser to land who is there because of necessity.

4. If they do interfere and damages are incurred because of the interference, the owner will be liable for the damages.