Does the doctrine of necessity justify a person in mooring a vessel to another's private dock to protect persons and property from a sudden and violent tempest, such that a complaint alleging that the dock owner's servant unmoored the vessel states a cause of action?

Plaintiff Ploof was sailing a loaded sloop on Lake Champlain with his wife and two minor children aboard on November 13, 1904. A sudden and violent tempest arose, placing the sloop, its cargo, and the persons aboard in great danger of destruction. To save the vessel and its occupants, Ploof moored the sloop to a dock attached to an island owned by defendant Putnam. The island and dock were then in the charge of Putnam's servant. The servant unmoored the sloop, and the tempest drove it onto the shore without any fault of Ploof. The sloop and its contents were destroyed, and Ploof, his wife, and his children were cast into the lake and onto the shore, suffering injuries. Ploof sued on two theories: trespass, alleging that Putnam, through his servant, wilfully and designedly unmoored the sloop, and case, alleging that Putnam owed a duty to permit the sloop to remain moored during the storm and negligently, carelessly, and wrongfully breached it.

Ploof brought suit in a Vermont trial court against Putnam on two counts, one in trespass and one in case. Putnam demurred generally to both counts. The trial court overruled the demurrer, and Putnam appealed to the Supreme Court of Vermont.

(Munson, J.)

Yes. The declaration discloses a necessity for mooring to another's dock during a violent tempest, so it states a valid cause of action against Putnam. The judgment overruling the demurrer is affirmed and the cause remanded. The court did not decide liability.

The doctrine of necessity permits entries upon land and interferences with personal property that would otherwise be trespasses. Authorities include Miller v. Fandrye, Poph. 161 (dog chasing sheep), Proctor v. Adams, 113 Mass. 376 (entry on a beach to save a boat driven ashore), and the rule that a traveler may pass onto adjoining land when a highway is suddenly obstructed. Entry onto land to save goods in danger from water or fire is not a trespass.

The doctrine applies with special force to the preservation of human life. One may run through another's close to escape an assailant, and may sacrifice another's personal property to save lives, as in Mouse's Case, 12 Co. 63, where a passenger lawfully cast a casket overboard during a tempest. The declaration discloses a necessity to moor the sloop, so the counts sufficiently allege a necessity that can justify the mooring.

Putnam's demurrer argued that the counts failed to negate the existence of natural objects to which Ploof could have moored with equal safety. The allegation that the tempest compelled mooring to the defendant's dock covers the necessity of mooring to that dock. The details of the situation are matters of proof and need not be pleaded. Whether such a rule applies in a given circumstance is left for adjudication on the evidence or the charge.

Putnam also argued that the servant may have acted outside the scope of employment. The counts allege that Putnam acted by his servant, and the words 'wilfully and designedly' and 'negligently, carelessly and wrongfully' describe Putnam acting through the servant. The necessary implication is that the servant acted within the scope of his employment.