When Homes are Sacrificed to Fight Fire: Japan's Supreme Court on Compensation for "Destructive Firefighting"

Date of Judgment: May 30, 1972
Court: Supreme Court of Japan, Third Petty Bench
Case Number: 1969 (O) No. 649

This article delves into a significant Japanese Supreme Court decision concerning the rights of property owners whose buildings are intentionally destroyed by fire authorities to prevent the spread of a larger conflagration. The case clarifies the conditions under which owners are entitled to loss compensation from the local government under Japan's Fire Service Act (消防法 - Shōbō Hō), particularly distinguishing between different scenarios of "destructive firefighting."

Factual Background: A Village Fire and Preemptive Destruction

The incident occurred on January 17, 1958, when a fire broke out in Building A, an inn, within Village Y. The fire quickly spread to an adjacent building to its north, Building B.

The Fire Brigade's Difficult Decision:
The Village Y fire brigade, under the command of its chief, was engaged in firefighting efforts. To halt the further northward spread of the fire from Building B, the fire brigade chief made the difficult decision to order the preemptive destruction of a row of eight buildings located immediately to the north of the already burning Building B.

The Aftermath and Disputed Necessity:
Despite this drastic measure, the fire, after consuming Building B, ultimately only spread to one of the eight demolished buildings that was directly adjacent to Building B, and partially to two more buildings next in line. The remaining buildings among the eight that were destroyed were never actually reached by the flames.

The Lawsuit:
Nine owners of these destroyed buildings, including the three plaintiffs in this appeal (X et al.), subsequently filed a lawsuit against Village Y. Their primary legal claim was for damages under Article 1 of the State Compensation Law, alleging that the destruction of their properties was an illegal or negligent act by the fire brigade. In the alternative, they sought loss compensation under the provisions of Article 29, Paragraphs 3 and 4 of the Fire Service Act, which specifically addresses actions taken during firefighting.

Understanding Article 29 of the Fire Service Act:
This article is crucial to the case and outlines different scenarios for official action during a fire:

• Paragraph 1: Allows firefighters to use, dispose of, or restrict the use of property that is about to catch fire, is currently on fire, or the land where such property is situated, if necessary for extinguishing the fire, preventing its spread, or rescuing human lives. This paragraph does not explicitly mention compensation for such actions.
• Paragraph 2: Empowers fire chiefs (or their equivalents) to use, dispose of, or restrict the use of "fire-fighting objects and land at risk of fire spread" (延焼の虞がある消防対象物 - enshō no osore ga aru shōbō taishōbutsu) if, based on a rational assessment of the fire's intensity, weather conditions, and other surrounding circumstances, such action is deemed "unavoidable" (やむを得ない - yamu o enai) for preventing the spread of the fire. This paragraph also does not explicitly provide for compensation.
• Paragraph 3: Allows fire chiefs (or their equivalents), in cases of "urgent necessity" (緊急の必要があるとき - kinkyū no hitsuyō ga aru toki) for extinguishing, preventing spread, or rescuing lives, to use, dispose of, or restrict the use of fire-fighting objects and land "other than those specified in the preceding two paragraphs." This means property that is not currently burning, about to burn, or directly at risk of catching fire itself. The latter part of Paragraph 3 is critical: "In this case, if a person who has suffered damage thereby requests compensation for that loss, the loss shall be compensated at market value."
• Paragraph 4: Pertains to the allocation of costs for such compensation.

Lower Court Rulings:

• First Instance (Gifu District Court, April 12, 1965): The District Court dismissed all claims. It found that the plaintiffs' buildings were indeed "fire-fighting objects at risk of fire spread" and that their destruction was "unavoidable to prevent the spread of fire." Therefore, the court concluded that the fire brigade's actions fell under Article 29, Paragraph 2 of the Fire Service Act (for which no compensation is stipulated) and were thus lawful and non-compensable.
• Second Instance (Nagoya High Court, March 25, 1969): The High Court, upon appeal by three of the plaintiffs (X et al.), modified the lower court's decision. It also dismissed the State Compensation Law claim (finding the act lawful). However, it partially granted the alternative claim for loss compensation under Article 29, Paragraph 3. The High Court determined that the destruction of X et al.'s specific buildings lacked the "unavoidability" required to fall under Paragraph 2, implying they were not themselves at imminent risk of catching fire. Nevertheless, it found that there was an "urgent necessity" to destroy them as a firebreak to prevent the conflagration from spreading to other properties further away. Thus, the act, while not fitting Paragraph 2, was deemed a lawful exercise of powers under Paragraph 3, which explicitly mandates compensation.

Village Y appealed this High Court decision to the Supreme Court, challenging the award of compensation.

The Supreme Court's Judgment: Upholding Compensation for Lawful "Sacrificial Destruction"

The Supreme Court, on May 30, 1972, dismissed Village Y's appeal, thereby affirming the High Court's decision to award loss compensation to X et al.

Clarifying the Conditions for Loss Compensation under Fire Service Act Article 29(3):
The Court meticulously outlined the conditions under which a person whose property is damaged during firefighting activities can claim loss compensation pursuant to Article 29, Paragraph 3:

1. The disposition (e.g., destruction of property) must have been made against "fire-fighting objects and land other than those that are about to catch fire, are currently on fire, or are at risk of fire spread (and the land these are on)." This critically distinguishes actions eligible for compensation under Paragraph 3 from actions taken under Paragraph 1 or Paragraph 2 (which generally do not entail a right to compensation under the Act).
2. The said disposition must have been undertaken when there was an "urgent necessity" for the purpose of extinguishing the fire, preventing its further spread, or rescuing human lives.

Application to the Facts of the Case:
The Supreme Court reviewed the facts as determined by the High Court and found:

• At the time the destructive firefighting activities were carried out, the buildings belonging to X et al. were "not necessarily at risk of the fire spreading to them directly" (「必ずしも延焼のおそれがあったとはいえない」 - kanarazushimo enshō no osore ga atta towa ienai). This finding was crucial because it meant that the conditions for a non-compensable destruction under Article 29, Paragraph 2 (destruction of property itself at risk) were not met for these specific properties.
• However, the Court agreed with the High Court that there was an "urgent necessity" to destroy X et al.'s buildings "in order to prevent the spread of fire from Building B to the buildings connected to its north." This implies that X et al.'s properties were sacrificed as a necessary firebreak to protect other, more distant properties from the advancing flames.

Conclusion on Lawful Act and Compensation:
Since the destruction of X et al.'s buildings met the criteria of Article 29, Paragraph 3—they were not themselves imminently threatened by fire but were destroyed due to an "urgent necessity" to prevent the broader spread of the fire—the act of destroying them was deemed a lawful exercise of powers under that specific paragraph.
The Fire Service Act, in Paragraph 3, explicitly provides for compensation in such instances. Therefore, the Supreme Court concluded that X et al., having suffered damage as a result of this lawful act of "sacrificial destruction," were entitled to claim loss compensation from Village Y as stipulated by Article 29, Paragraph 3.

The High Court's judgment awarding compensation to X et al. was consequently affirmed.

Significance and Implications

This 1972 Supreme Court decision is a leading case in Japan concerning compensation for property destroyed during firefighting operations.

1. Distinction Between Types of "Destructive Firefighting": The judgment clearly distinguishes between the destruction of property that is itself already on fire or imminently threatened by fire (under Fire Service Act Art. 29, Paras. 1 and 2, generally without statutory compensation) and the "sacrificial destruction" of property not yet directly threatened, but demolished out of urgent necessity to act as a firebreak and save other properties (under Art. 29, Para. 3, with a statutory right to compensation).
2. Objective Assessment of Risk: The Court appeared to favor an objective assessment of whether a property was genuinely "at risk of fire spread" for the purpose of distinguishing between Paragraph 2 and Paragraph 3 actions, rather than relying solely on the subjective judgment of the fire chief at the scene, although the "rational judgment" of the fire chief is a component of Paragraph 2.
3. Compensation for Lawful, Necessary Sacrifices: It affirms that when private property is lawfully sacrificed under conditions of urgent necessity for the public good (preventing a wider conflagration), the Fire Service Act provides a specific mechanism for loss compensation, distinct from damages for unlawful acts under the State Compensation Law.
4. Burden of Justification for Non-Compensable Destruction: Implicitly, for a destruction to be considered non-compensable under Article 29, Paragraph 2, the authorities would need to demonstrate that the destroyed property was indeed under an imminent threat of fire spread and that its destruction was "unavoidable" for fire prevention. If these strict conditions are not met, but an "urgent necessity" for broader fire control prompted the destruction, compensation under Paragraph 3 becomes applicable.
5. Guidance for Fire Authorities and Property Owners: The decision provides crucial guidance for both fire authorities making operational decisions in extreme circumstances and for property owners who suffer losses due to such decisions, clarifying the legal framework for potential compensation.

This case highlights the legal balance struck between the public necessity of effective firefighting, which may include the destruction of private property, and the right of property owners to be compensated when their property is lawfully taken or damaged for the greater public good in such emergency situations.