the race was legal. No distinction can be drawn between the parties in this respect. We are at a loss, however, to see how the legality or illegality of the race affected a person in the condition of the plaintiff. The danger she would encounter in witnessing the race would be exactly the same had there been a statute of the state which expressly authorized it. It does not lie in the mouth of the plaintiff to assert as a ground of liability the illegality of an act from which she sought to draw pleasure and enjoyment. It may be assumed that her mere presence at the race was not sufficient participation therein to render her liable to prosecution as one of the maintainors or abettors of the nuisance (Cooley on Torts, p. 127), though in the case of a prize fight, at common law, all spectators were equally guilty with the combatants of a breach of the peace. Rex v. Perkins, 4 C. & P. 537; Rex v. Murphy, 6 C. & P. 103; Rex v. Young, 8 C. & P. 645. The general maxim, "injuria non fit volenti" applies, and one cannot be heard to complain of an act in which he has participated, if not so far as to render him liable as a party to the offense or tort, at least to the extent of witnessing, encouraging it and seeking pleasure and enjoyment therefrom. Illustrations of this principle may readily be found. It is a misdemeanor to conduct a horse race within a mile of court when the court is in session; also to give a theatrical or operatic exhibition on Sunday. It seems to me absurd that persons obtaining admission and attending the prohibited race or opera and meeting injury there shall successfully assert the illegality of the exhibition as a ground for recovery. It might with just as much force be contended that the presence of the person injured at the illegal exhibition or spectacle precluded him from recovery against the parties by whose negligence or tort the injury had been occasioned. Such is the law in some jurisdictions, but not so in this state. In Platz v. City of Cohoes, 89 N. Y. 219, 42 Am. Rep. 286, the plaintiff while driving on Sunday for the purpose of pleasure was injured through a defect in one of the streets of the defendant. It was held that the fault of the plaintiff in driving on the Sabbath did not constitute a defense to the action and was not to be considered the proximate cause of the accident. We think the same principle applicable here. The acts of the defendant though illegal were illegal as against the public and travelers on the highway, not as against the plaintiff. Had the defendants broken into and entered without permission upon private property and conducted the race thereon, doubtless they would have been absolutely liable for all the injuries occasioned thereby to the owners or occupants of the land. But what bearing would the trespass have on the defendants' liability to spectators? On the other hand, the plaintiff, to get a better view of the race, entered and stood upon adjacent land. This probably

was a trespass on her part. But equally it has no bearing on her right to recover if the defendants were guilty of negligence or other fault. As between the plaintiff and these defendants the legality or illegality of the exhibition given and witnessed, so far as that illegality depends on the obstruction and appropriation of the highway, was not the material factor. It did not create a liability against the defendants if they were at fault in the conduct of the race in no other respect. It does not preclude a recovery by the plaintiff if the injury to her was caused by the misconduct or fault of the defendants.

The view which we entertain is in accord with the law in the state of Massachusetts. In Scanlon v. Wedger, 156 Mass. 462, 31 N. E. 642, 16 L. R. A. 395, it was held that a spectator at an exhibition of fireworks, held in a street, could recover only for negligence, the court saying: "If an ordinary traveler upon the highway had been injured different reasons would be applicable; but a voluntary spectator who is present merely for the purpose of witnessing the display must be held to consent to it, and he suffers no wrong if accidentally injured without negligence on the part of any one, although the show was unauthorized. He takes the risk." From this decision there was a strong dissent, but an examination of the dissenting opinion shows that it was directed rather to the question of negligence than to that of illegality. The case was followed in Frost v. Josselyn, 180 Mass. 389, 62 N. E. 469. In Pennsylvania the law has been extended in this direction farther probably than would command our assent. In Norristown v. Moyer, 67 Pa. 355 the charge of the trial judge that loitering in the public highway would per se preclude a recovery from the fall of a falling pole seems to have been approved. In this state, where a boiler was being tested on the public highway, it was held that for a traveler to remain in the vicinity after being informed of the danger raised a question of contributory negligence to be determined by the jury. The cases relied on by the learned counsel for the respondent we think are not controlling. The decision in Bradley v. Andrews, 51 Vt. 530, is directed to contributory negligence and assumed risks, not to illegality. In Castle v. Duryee, 1 Abb. Dec. 327, where the plaintiff was injured by a ball discharged from a gun during the exercises of a militia regiment, the recovery at circuit was on the ground of negligence, a recovery which was upheld by this court. Judge Denio in his opinion thought the recovery might also be sustained on the ground of trespass. The report shows that a majority of the court concurred in the decision. Whether the opinion was also concurred in does not appear. However that may be, Judge Denio states that the plaintiff in that case was unaware that there was to be any discharge of firearms. Here the plaintiff knew that there was to be a test of speed of automobiles,

and it was the high speed of the automobile that caused the injury. In Guille v. Swan, 19 Johns. 381, 10 Am. Dec. 234, it was held that a defendant who descended in a balloon upon the plaintiff's garden, whereby a great crowd of people broke through the fences and injured his vegetables and flowers, was liable for the consequences of his act, although he might not have invited the crowd. That case would be in point if it had been held that the defendant was also liable to one of the crowd who had been injured while entering into the garden without invitation. In McGuire v. Spence, 91 N. Y. 303, 43 Am. Rep. 668, it was held that the fact that a child was playing in the street did not prevent her from recovering for injuries occasioned by falling into a dangerous and unguarded area which the defendant had left in the street. This is doubtless authority for the right of the child to play in the street, but it is not authority for the proposition that the defendant would have been liable had the child gone to play with the area by jumping into it and clambering out of it. It must be distinctly borne in mind in this case that as already said the plaintiff was not a casual spectator, whose attention might naturally be drawn to any remarkable occurrence on the highway and thereby loiter for some short period without losing her rights as a traveler, but one who went to the place expressly to see the exhibition.

The learned counsel for the respondent has argued at length that the character of the road, the curve in it, the nature of its pavement and similar matters rendered it dangerous and improper to conduct a contest by automobiles, and that considering the number of persons naturally attracted to such a spectacle the contest was so dangerous as to constitute a public nuisance within the definition of the Penal Code. Pen. Code, § 385, subsec. 4. Whether the contest as conducted was in fact a nuisance, whether the defendants, or any of them, were guilty of negligence in the management of the race and the contributory negligence, if any, on the part of the plaintiff, were all questions of fact which the trial court should have subMcmitted to the jury for determination. Donald v. Met. St. Ry. Co., 167 N. Y. 66, 60 N. E. 282.

For these reasons the judgment of the courts below must be reversed, and a new trial had, costs to abide the event.

EDWARD T. BARTLETT, HAIGHT, HISCOCK, and CHASE, JJ., concur. GRAY and O'BRIEN, JJ., absent.

Judgment reversed, etc.

(186 N. Y. 66)

LITCHFIELD v. BOND et al. (Court of Appeals of New York. Oct. 2, 1906.) 1. CONSTITUTIONAL LAW-POLICE POWER-EX

IGENCIES.

Where a boundary line dispute between counties had existed for over 100 years, such

controversy, though involving the jurisdiction of courts, the right of franchise, and the power of taxation, presented no exigency that required the immediate and arbitrary exercise of the state's police power or the law of overwhelming necessity in the invasion of private rights. 2. EMINENT DOMAIN-INJURY TO PROPERTYSTATUTORY AUTHORITY.

An injury to private property cannot be justified by the plea of statutory sanction, unless the latter is expressly given or may be so clearly implied from the powers expressly conferred that the doing of the act which occasioned the injury can fairly be said to be within the legislative contemplation.

3. SAME STATUTES - BOUNDARY LINES-ES

[Ed. Note.-For cases in point, see vol. 18, Cent. Dig. Eminent Domain, § 180.]

5. STATUTES-RETROACTIVE OPERATION.

Laws 1903, p. 698, c. 348, provides that for the making of surveys and performing the work provided for by the act, to the extent deemed necessary by the state engineer for such purpose, the engineer and his assistants may enter on lands belonging to private persons and perform any acts necessary to complete their surveys, subject to liability only for the payment of all damages on account of their entry and acts done thereon. Held, that such act was prospective only in its operation, and did not affect previous trespasses committed by the state. engineer and his assistants in running the county boundary line.

6. TRESPASS-RATIFICATION-STATUTES.

Laws 1902, p. 1125, c. 473, providing for the establishment of a boundary between certain counties by the state engineer, not having authorized the taking or damaging of the lands of private individuals in the performance of the work, Laws 1903, p. 698, c. 348, authorizing the state engineer and his assistants to enter on land for the performance of such work, subject only to liability of the payment of all. damages on account of the entry, did not operate as a ratification or authorization of previous trespasses committed by the engineer and his assistants; such acts being capable of ratification only by the property owner injured.

7. STATES-OFFICERS-PERSONAL LIABILITIES -ENTRY ON PRIVATE LANDS-PRELIMINARY INCIDENTAL DAMAGE.

In the prosecution of public work by or under the authority of the state, except under the right of eminent domain or common-law necessity, there is immunity from liability for entry on private lands only to the extent that the entry or occupation is temporary or the infliction of damage is incidental, incipient, or preliminary.

the boundary between certain counties, but contained no provision for the damaging of private property in performance of the work. In making the survey, the state engineer and his assistants made a "slash" in the woods through complainant's forest preserve, 31⁄2 miles in length and from 5 to 25 feet in width, for the purpose of permanently establishing a base line from which the boundary line could be more readily and practically located. The slash as made covered the whole territory to such an extent that it would take 80 years of timber growth to repair the same. Held, that such slash did not constitute the establishment and permanent marking of the boundary line on the ground within the statute, nor a mere incidental preliminary damage necessary to the performance of the work, but constituted a trespass for which the officers were individually liable. 9. SAME REMEDIES.

Laws 1902, p. 1125, c. 473, provided for the establishment of a boundary line between certain counties by the state engineer and his assistants, and Laws 1904, p. 1363, c. 561, conferred on the Court of Claims jurisdiction to hear, audit, and determine claims for damages caused by such engineer and his assistants in making the surveys authorized by the act of 1902, but also provided that nothing contained in the act should be construed as creating or acknowledging any liability on the part of the state. Held, that where the state engineer and his assistants in making such survey committed an unjustifiable trespass on plaintiff's land, for which the state was not liable, but for which they were individually liable, plaintiff was not limited by the act of 1904 to a presentation of his claim before the Court of Claims, but was entitled to maintain a suit to restrain such officers as individuals from entering on his premises and continuing such trespass.

Gray, J., dissenting.

Appeal from Supreme Court, Appellate Division, Third Department.

Suit by Edward H. Litchfield against Edward A. Bond and others. From a judgment of the Appellate Division (93 N. Y. Supp. 1016) affirming a judgment entered on the report of a referee in favor of defendants, plaintiff appeals. Reversed.

The plaintiff is the owner of some 9,000 acres of land, situated in the southwesterly corner of Franklin county, in this state, of which he has made a park, inclosed by a steel wire fence, stocked with large and small game, and more or less laid out in carriage drives. The defendants are the state engineer of this state and his assistants, and this action was brought to restain them from entering, or doing acts, upon the plaintiff's premises, in effectuating the provisions of an act of the Legislature relating to the establishment of the boundary lines of certain counties. Upon the trial of the action the plaintiff's complaint was dismissed, upon the report of the referee before whom the case was tried, and the judgment upon the report has been unanimously affirmed by the Appellate Division in the Third Department. The decision of the referee was formulated in findings, and therefore, so far as the facts are concerned, they are conclusively settled upon this appeal by the plaintiff. It appears that in 1902 and theretofore there had been a controversy over the boundary line between the counties of Franklin and St. Lawrence on

the north and the counties of Lewis, Herkimer, Hamilton, and Essex on the south. Chapter 473, p. 1125, of the Laws of 1902 was passed by the Legislature as an act providing for the establishment of this line. Thereun

der, the state engineer, with his assistants, undertook the work directed to be performed by the act and prosecuted it in good faith. The state engineer directed that the making of the survey and the marking of the boundaries required by the statute should be according to the straight base line method of survey, which was the one best adapted to the proper performance of the work, in securing the most certain and permanent results. What other methods of doing such work may have been practiced were found to be inferior. In prosecuting the survey, the assistants of the state engineer climbed the fence surrounding the plaintiff's park and cleared a "slash," or cutting, through the standing timber in his woods, which was, from first to last, some 34 miles in length, varied from 25 to 35 feet in width for a quarter of a mile, and for the rest of the distance from 3 to 6 feet, and involved the cutting down of some 1,400 trees. The surface thus cleared amounted to about 180/100 acres. It was further found with respect to the performance of the work that this cutting, while not upon the boundary line, "served as a base line from which to locate the boundary line which was. to be marked, and was made for a purpose in its nature temporary and incidental to the location and marking prescribed by the statute." When making the survey, according to the straight base line system, except as to the cut timber being left upon the ground, the work was done with care and skill. The cutting, or "scar," was remote from the plaintiff's buildings and roads, and it was only noticeable from points in a line with it, or within a few hundred feet of it. The merchantable value of the wood cut from the "slash" was about $100 less than the cost of removing it, and the impairment in value of the plaintiff's preserve, as an entirety, amounted to $500. According to the judgment of the referee, the plaintiff failed to make a case for relief, either upon the ground that the defendants were exercising a discretionary power, not reviewable by the courts, or, if the power was reviewable, upon the ground that it appeared to have been the best and only method of survey. He thought, too, that any taking of property of the plaintiff was under the exercise of the police power of the state. The Appellate Division, however, differed from the referee, in opinion, with respect to the theory upon which the acts of the defendants were justifiable, and that court entertained the view that whatever was done, or taken, by the defendants, it was under the right of eminent domain. While the exercise of that power was subject to the statutory limitation that just compensation must be made, the Appellate Division held that the Court of Claims was open to the plaintiff as

a court with competent jurisdiction to pass upon his claim for compensation.

William G. Wilson, for appellant. Julius M. Mayer, Atty. Gen. (James G. Graham, of counsel), for respondents.

WERNER, J. (after stating the facts). The plaintiff is the owner of about 9,000 acres of forest land in the Adirondack Mountains. This tract he inclosed and improved as a park and game preserve, which was brought within the protection of the law by the posting of proper notices. In 1902 the defendants entered upon these premises and denuded of its growth of forest trees a strip of about 34 miles in length and from 3 to 8 feet wide, except for a distance of 1,350 feet, where the cutting was from 25 to 35 feet in width. Upon a complaint which alleged these facts and contained averments of further threatened devastation of plaintiff's preserve by the defendants, the court granted a preliminary injunction restraining pendente lite the further commission of similar acts. There was no conflict of evidence as to the principal facts; the real defense being that in the commission, of the alleged trespasses the defendants were agents of the state engaged in the making of a survey under legislative authority, and that nothing had been done upon the plaintiff's land that was not essential to the proper performance of the work. At the trial the learned referee gave judgment for the defendants, holding that in the commission of the acts complained of the defendants were agents of the state, which, in the exercise of its police power, had done nothing to invite or justify judicial interference with its agents. At the Appellate Division this judgment was unanimously affirmed, not upon that ground, but because the legislative enactment, under which the defendants sought to justify their procedure, contained inherent but obscure indications of the state's purpose to exercise the right of eminent domain, under which the only remedy open to the plaintiff is a resort to the Court of Claims for such damages as he may have suffered. On the present appeal it is sought to sustain the decisions below by discarding both of these divergent theories and justifying the action of the defendants under the state's general governmental power to establish boundary lines between its political subdivisions. In view of this diversity of opinion I venture to join the symposium of judicial disagreement with a fourth proposition under which I shall endeavor to demonstrate the error of the three preceding conclusions, and to establish the plaintiff's right to maintain the action at bar.

To this end I invite attention to the initial fact that the dispute as to the boundary lines between the counties of Franklin, Hamilton, St. Lawrence, and Essex, which is the underlying cause of this controversy, had existed for over 100 years prior to 1902, 78 N.E.-46

so that there was no occasion for emergent action on the part of the state. A controversy of such long standing, even though it involved the jurisdiction of courts, the right of the franchise and the power of taxation, presented no exigency that required the immediate and arbitrary exercise of the police power or the law of overwhelming necessity in the invasion of private rights. Am. Print. Works v. Lawrence, 23 N. J. Law, 624, 57 Am. Dec. 420; Matter of Jacobs, 98 N. Y. 108, 50 Am. Rep. 636; Wynehamer v. People, 13 N. Y. 401. It is to be observed, moreover, that the police power, which is concededly an inherent attribute of sovereignty, should be permitted to override or nullify our constitutional limitations only in cases of the highest public necessity. That governmental power, like every other, is subject to the Constitution, and when it is paramount it is because it is not limited by the Constitution, or because some immediate and overruling emergency calls for the application of the maxim, "Salus populi suprema lex." If the trespasses complained of by the plaintiff were merely those of agents of the state, committed while necessarily engaged in the making of a survey to establish the boundary lines of civil divisions thereof, and which involved no such taking of private property for public

as to bring the plaintiff within the protection of the constitutional provisions embracing that subject, then it is obvious that there was neither occasion nor right for the exercise of the police power, since the inherent governmental power of the state, unrestricted by the Constitution, was ample for that purpose; and that assumption would, of course, necessarily compel the concession that the plaintiff's loss would be damnum absque injuria. It seems equally clear, however, that if the acts of the defendants went so far beyond the necessary incidents of a governmental survey as to involve the taking of plaintiff's private property for an alleged public use, the state is liable if the taking is authorized by its legislative direction, and the trespassers are liable if there is no such authority. This brings us logically to the discussion of the power of eminent domain, and to the assertion that it was exercised against the plaintiff under the statute invoked by the

defendants.

The learned Appellate Division, although placing its decision upon the ground that the defendants' invasion of the plaintiff's land could be justified under the state's power of eminent domain, conceded "that much, of necessity, must be read into the statute authorizing condemnation," but concluded that "in one form or another, if the state through its officers has caused injury to the plaintiff in the prosecution of a public work commanded by its Legislature, * * the Court of Claims must be open to him to prove and recover his damage." I think

this position is utterly untenable. It is the settled law of this state that an injury to private property cannot be justified by the plea of a statutory sanction unless the latter is expressly given, or may be so clearly implied from the powers expressly conferred that the doing of the act which occasioned the injury can fairly be said to be within the legislative contemplation. Cogswell v. N. Y., N. H. & H. R. R. Co., 103 N. Y. 10, 21, 8 N. E. 537, 57 Am. Rep. 701. Even under the most liberal reading of the statute

under consideration (Laws 1902, p. 1125, c. 473) it is impossible to find in it a single word or sentence indicating that the state proposed to exercise its right of eminent domain, or to make compensation for private property taken or destroyed. The legislative direction to the state engineer and surveyor was to "locate, establish, and permanently mark upon the ground" the boundary line in dispute, and the sum of $40,000 was appropriated, not to pay for property taken or to liquidate damage inflicted upon property owners, but for the purpose of the act; that is, to pay the necessary expenses of the survey. This is made clear beyond a doubt by a subsequent section of the statute limiting the amount which the state treasurer was authorized to pay an account of the work during the years 1902 and 1903, and providing for the final expenditure in 1904 "of $12,000, or so much thereof as may be necessary for the completion of the work." Such a statute, if intended to authorize the exercise of the right of eminent domain, would be clearly unconstitutional, because it makes no provision for compensation to those whose private property is to be taken for a public use. While payment need not precede the taking, the provision for compensation must not only pre-exist, but it must be so definite and certain as to leave nothing open to litigation except the title to the property taken and the amount of damages which the owner may recover. Sweet v. Rechel, 159 U. S. 380, 398, 16 Sup. Ct. 43, 40 L. Ed. 188; Sage v. City of Brooklyn, 89 N. Y. 189, 195; Matter of Mayor, etc., of N. Y., 99 N. Y. 569, 577, 2 N. E. 642; Brewster v. Rogers Co., 169 N. Y. 73, 80, 62 N. E. 164, 58 L. R. A. 495. It seems equally clear, also, that if the statute did not direct, and was not intended to authorize, the exercise of the power of eminent domain, the defendants can claim no protection under it, and the immunity from liability for which they contend must be sought in some other direction.

For this purpose we are referred to the statute of 1903 (chapter 348, p. 698), which enacts that, "For the purpose of making the surveys and performing the work provided for by this act, to the extent deemed necessary by the state engineer for such purpose, stating the purpose and extent thereof, the state engineer and surveyor, and upon his written authority, his assist

ants, agents, employees and servants, are hereby authorized and empowered to enter in and upon any and all lands in this state to whomsoever belonging and to do and perform any acts or act whatsoever necessary to do and fully complete such work and surveys, subject to liability only for payment of all damages on account of entry upon such lands and acts done thereon." This statute, if read literally and according to strict grammatical criticism, authorizes the state engineer and his assistants to do certain things, subject to individual liability for damages inflicted by their entry upon any lands. The defendants, and not the state, are to be liable for such damages. But that is a mere technicality, which, in the consideration of fundamental principles, may be passed without further mention. When we undertake to find in the statute a legislative purpose to subject the state to liability for damages inflicted upon the private owner in the performance of this public work, we perceive more clearly the real and substantial objections to its use by the defendants as a shield against their wrongful acts. It was enacted in 1903, or something like a year after the commission of the alleged trespasses. To the extent that it may have been designed as a statute authorizing the taking or invasion of private property for the public use, it fails of its purpose, so far as the plaintiff is concerned, because his property had been invaded before its its passage. There is nothing retroactive in its letter, and it could not be retroactive in effect, for, as we have seen, it is one of the cardinal essentials of a statute authorizing the taking of private property for public use that provision for compensation must precede the taking or entry. The theory of respondent's counsel that the statute of 1903 operated to ratify and confirm the acts of the defendants upon the plaintiff's lands is untenable for two reasons: (1) If the statute of 1902 was effective to authorize the taking of or entry upon the plaintiff's lands, there was no need of ratification or confirmation, and in that view the so-called confirmatory statute of 1903 would be just so much waste paper. (2) If the statute of 1902 did not authorize the entry upon or taking of plaintiff's lands under the state's power of eminent domain the defendants were naked trespassers just in so far as they transcended, if they did transcend, the general governmental powers which inhere in the state's right to make surveys and delimit the boundaries of its civil divisions, and in that aspect of the case the unauthorized acts committed by the defendants upon the plaintiff's lands were wrongful, and could be ratified by no one but the plaintiff. The statute of 1903, instead of being an attempted governmental ratification of the acts of a state agency, seems to be nothing more than a legislative admission of the insufficiency of the