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statute of 1902 to authorize such acts as were committed by the defendants upon the lands of the plaintiff.

Thus we are brought to the consideration of the two real questions upon which the fate of this litigation depends: (1) Whether the defendants' invasion of the plaintiff's premises was within the general and inherent power of the state in making a survey for the establishment of the disputed boundary lines of the counties named. (2) Whether the plaintiff's remedy, if the defendants' acts were in excess of such governmental power, lies in the Court of Claims in an action against the state, or in a court of general equity jurisdiction in a suit against the actual wrongdoers.

The power of the state to make surveys for public improvements and to mark the boundaries of its civil divisions is so universally recognized that it may be conceded without discussion. In the case at bar we are not so much concerned about its existence as with its limitations. The existence of the power necessarily implies the right to make it practical and effective. For that purpose the state through its agents may, doubtless, enter upon and temporarily occupy private lands, or even commit acts thereon that are ordinarily classified as technical trespasses, without becoming liable to compensate the injured owner. It must be, however, that this arbitrary power has its limitations, and while these are no more clearly definable than the power itself, they are to be looked for in the special circumstances of each separate case. The statement of a few generalizations taken from learned authors cited by the respondents will serve to mark the angle from which the question should be viewed in the case at bar. "In the construction of public improvements, as railroads or canals for instance, before it is known that the land will be wanted, preliminary steps, such for instance as surveys, are indispensably necessary. These preliminary steps are in themselves a trespass, and may sometimes. as by felling trees, work actual injury to the proprietor. On the other hand, if payment be not made before the work is actually begun, then, if it be discontinued or left in imperfect state, the owner might be entirely remediless. In such a conflict of interests the current of decisions seems to tend to estab. lish the rule that the preliminary steps in regard to public works may be taken without any compensation, but that before any definite act be done toward the construction of the improvement, which is in the nature of the assertion of ownership, payment must be made or tendered, or a certain and adequate remedy be provided, and unless this is done in the act authorizing the work the statute is wholly unconstitutional and void, and any step taken under it is an unauthorized trespass.” Sedgwick on Construction of Stat. & Const. Law, pp. 467, 468. “It is settled that the Legislature may authorize railway com

panies to enter upou land for the purpose of preliminary surveys without making any compensation therefor, doing as little damage as possible, and selecting such seasons of the year as will do least damage to the growing crops.” Redfield on Railways (5th Ed.) p. 258. "When a surveyor or engineer is an officer of the state or of the federal government, or is acting by authority of either, or under powers granted to a corporation by the Legislature, he is authorized to enter upon lands and perform his work, and cannot be interfered with, if acting within the scope of his duties. The entry must be for a temporary purpose and be accompanied with no unnecessary damages. Preliminary surveys may be authorized by the state without compensation being previously paid or secured by an owner. This is so even though the Constitution requires the payment of compensation to precede a taking, on the ground that no estate is thereby taken." Wait on Law of Operations Preliminary to Construction and Engineering, $ 353. “No constitutional principle is violated by a statute which allows private property to be entered upon and temporarily occupied for the purposes of survey and other incipient proceedings with a view of judging and determining whether the public needs require the appropriation or not, and if so what the proper location shall be; and the party acting under this statutory authority would neither be bound to make compensation for the temporary possession, nor be liable to an action of trespass. When, however, the land has been viewed, and a determination arrived at to appropriate it, the question of compensation is to be considered." Cooley's Const. Lim. (7th Ed.) p. 813.

These extracts from the writings of learned commentators upon subjects germane to the question under consideration, clearly indicate that in the prosecution of public works 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 upon private lands, only to the extent that the entry or occupation is temporary, or the infliction of damage is incidental and incipient or preliminary. If the occupation is to be permanent or the damage is to be substantial, then the state and those assuming to act under it must invoke those powers under which such things may lawfully be done. The case at bar differs in circumstance, but not in principle, from the illustrations taken from the learned authors above referred to. Here the permanent demarcation of boundary lines between several counties was the permanent work to be done. To that end a preliminary survey was necessary, and that could not be made without entry upon some private lands. It is reasonable to suppose that, to some extent, the blazing of trees, or the felling of an occasional tree, might be regarded as indispensable, and that the ordinary monuments of the surveyor's profession might have to be

established on private lands. All this, and and federal Constitutions. "Depriving an perhaps more, may fairly be considered as

owner of property of one of its essential atcomprehended in the legislative direction "to tributes is depriving him of his property locate, establish and permanently mark upon within the constitutional provisions.” People the ground” the disputed boundary lines. In ex rel. Manh. S. Instn. v. Otis, 90 N. Y. the case at bar the defendants did not stop 48–52. “When a law annihilates the value at these temporary, preliminary, incipient of property and strips it of its attributes, by and incidental things which, as we have seen, which alone it is distinguished as property, may be done without making compensation the owner is deprived of it according to or incurring liability, but they proceeded to the plainest interpretation, and certainly practically appropriate a strip of plaintiff's within the spirit of a constitutional proviland, 312 miles in length and from 5 to 25 sion intended expressly to shield private feet in width, not temporarily, but for the rights from the exercise of arbitrary power." purpose of permanently establishing a base Wynehamer v. People, 13 N. Y. 378. “Whenline, from which the boundary line could be ever a law deprives the owner of the benefithe more readily and permanently located. cial use and free enjoyment of his property, This base line consisted of a "slash" in the or imposes restraints upon such use and woods covering the whole of the territory enjoyment, that materially affect its value, above mentioned, that it will take 80 years without legal process or compensation, it of timber growth to repair. And this was deprives him of his property within the done, not as a necessary and essential part meaning of the Constitution." Forster v. of the survey, or upon the line thereof, but Scott, 136 N. Y. 577, 32 N. E. 976, 18 L. R. A. wholly upon the plaintiff's land, and purely 543. "It would be a very curious and unbecause, in the judgment of the state engineer, satisfactory result if in construing a provisuch a "slash" would make a more perma- sion of constitutional law always undernent auxiliary or sighting line to the true stood to have been adopted for protection boundary than any other method that could and security to the rights of the individual have been employed. We must assume, for as against government, and which has rethe referee has found, that the method em- ceived the commendation of jurists, statesployed was "the one best adapted to the men and commentators as placing the just proper performance of the work prescribed,” | principles of the common law on that subject and was designed to secure the most certain beyond the power of ordinary legislation to and permanent results. For the purposes of change or control them, it shall be held that illustration let us suppose that the most ap- if the government refrained from the absoproved and up-to-date method of surveying lute conversion of real property to the uses for boundary lines required the building of of the public, it can destroy its value ena stone wall on private property from 5 to tirely; can inflict irreparable and permanent 35 feet in width for a length of 342 miles; injury to any extent; can, in effect, subject or that such a structure or a "slash” like it to total destruction without making any the one described in the record should occupy compensation, because, in the narrowest sense all the land of a private owner; or that the of that word, it is not taken for public use." owner's residence, which happened to be Pumpelly v. Green Bay Co., 13 Wall. (U. S.) where the base line was desired to be es- 160, 20 L. Edi. 557. From the foregoing autablished, was razed to the ground and the thorities and observations I summarize the materials scattered over the ground. Would following conclusions: That the state had no any such entry and occupation by the agents authority to do the acts complained of by of the state be justifiable under the state's the plaintiff. It did not assume to act under inherent power to survey and mark boundary its power of eminent domain, or if it did, the lines? I think not. And if not, then how attempted exercise of that power was unconcan the acts herein complained of be justi- stitutional because the statute relied upon fied? The difference between the illustra- to authorize it made no provision for comtions and the fact is one of degree and not pensation for the taking of private property. of kind. It is to be emphasized again, more- The supplementary statute, which, by a over, that the “slash” cut upon plaintiff's stretch of language, may be construed as premises was not designed to mark the authorizing such compensation, is unavail- . boundary line or to establish a permanent ing because it was not passed until after monument upon it, but to maintain an inde- the commission of the acts described, and it pendent baseline for convenient future is fundamental that, although payment needs reference. This was not, in my judgment, not precede the taking, the provision for comsuch an establishment and permanent mark- pensation is an indispensable precedent. ing of the boundary line upon the ground Since the state cannot justify the invasion as was contemplated by the statute.

of the plaintiff's property for the purposes We deem it unnecessary to discuss at described under its police power, or the comlength the proposition that such an entry mon-law right of necessity, or the inherent and occupation as is conceded to have been power to make surveys of its civil divisions, made upon the plaintiff's land is a taking of it follows that the acts of the defendants property within the meaning of our state committed in excess of the last-mentioned

power were unauthorized trespasses, for which the plaintiff is entitled to some relief, and for which some one is liable. What is the plaintiff's remedy?

It is argued by the learned Attorney-General that the statute passed in 1904 (Laws 1904, p. 1363, c. 561), and conferring upon the Court of Claims jurisdiction “to hear, audit and determine claims for damages caused by the state engineer and surveyor, and his assistants acting under his direction,” in making the surveys authorized by the statute of 1902, clearly relegates the plaintiff to the Court of Claims as the only forum in which he may present his claim, and as clearly deprives him of any other remedy either against the state or against the defendants. The difficulty with this argument is to be found in a subsequent portion of the statute of 1904, not quoted by respondents' counsel. The concluding paragraph of that statute is: "Nothing in this act contained shall be construed as creating or acknowledging any liability on the part of the state.” Thus falls the contention that either by the exercise of the right of eminent domain, or by ex post facto ratification, the state has assumed and recognized its obligation to pay the plaintiff his damages. The act of 1904 did not create a claim in favor of the plaintiff against the state, any more than section 264 of the Code of Civil Procedure, defining the general jurisdiction of the Court of Claims, undertakes to create claims against the state. In the statute of 1904 the question of the state's liability is distinctly

Since the state cannot be held diable upon any of the theories already discussed, it remains to be ascertained whether it is generally liable for the torts of its officers or agents, or only in special instances expressly created by law. The general rule, as I understand it, is very clearly and forcibly stated in Poindexter V. Greenhow, 114 U. S. 270, 290, 5 Sup. Ct. 903, 914, 29 L. Ed. 185, in the following language: "The state itself is an ideal person, intangible, invisible, immutable. The government is

an agent, and, within the sphere of the agency, a a perfect representative; but outside of that it is a lawless usurpation.

It is also true, in respect to the state itself, that whatever wrong is attempted in its name is imputable to its government and not to the state, for, as it can speak and act only by law, whatever it does say and do must be lawful. That which, therefore, is unlawful because made so by the supreme law, the Constitution of the United States, is not the word or deed of the state, but is the mere wrong and trespass of those individual persons who falsely speak and act in its name.” No language could more aptly depict the situation disclosed by this record. The state, through its Constitution, has ordained that no man's property shall be taken without due process of law and just compensation. The state engineer, assuming to act for the

state, and doubtless believing himself authorized to act for it, has taken and destroyed plaintiff's property without such process or compensation. This being contrary to law, it cannot be the act of the state, and, therefore, must be "the mere wrong and trespass of those individuals” who mistakenly spoke and acted in its name. The cases which are sometimes referred to as exceptions to this general rule are not exceptions at all, for they do not fall within the rule. When a state, by express enactment of statutes, assumes responsibility for such torts of its officers and agents as are not affected or controlled by the fundamental law, it makes a new rule for itself. Instances of that kind are to be found in Sipple v. State of N. Y., 99 N. Y. 284, 1 N. E. 892, 3 N. E. 657, where the Legislature enacted a statute making the state liable for the negligent operation of its canal locks, upon proof that would create a legal liability against an individual or a private corporation, and in Woodman V. State of N. Y., 127 N. Y.

, 397, 28 N. E. 20, where negligence in the maintenance of a defective canal bridge was attributed to the state under a similar stat. ute. There are still other classes of cases in which the state has been held liable for the apparent torts of its agents, but in reality for its own neglect of duties assumed under mandatory or permissive statutes, as in Ballou v. State of N. Y., 111 N. Y. 500, 18 N. E. 627, where the state built a sewer which was permitted to overflow on the plaintiff's premises, and in Mayor, etc. of N. Y. v. Furze, 3 Hill, 612, where the municipality, which had been empowered to build a sewer, was held liable for its neglect to properly maintain it.

Thus, by the process of exclusion, we come to the final question whether the defendants can be held liable as individuals. If I have thus far reasoned correctly, such liability seems to follow as a logical necessity. The trespasses committed upon the plaintiff's land were not the acts of the state, but the unauthorized and unlawful wrongs of the defendants, who, although the agents of the state within their sphere of duty, were naked usurpers in assuming to do that which the state could neither do nor authorize to be done, except in the exercise of its power of eminent domain; and that power, as we have seen, was either not attempted to be exercised at all, or if it was, the effort was fruitless because absolutely void. If this assumption is correct, it matters not whether the operations of the defendants upon the plaintiff's land were characterized by reasonable care or gross negligence. The fact that they were unauthorized is sufficient to confer upon the plaintiff a right of action against the defendants. St. Peter v. Denison, 58 N. Y. 416, 17 Am. Rep. 258. The vital principle in all such cases is that the defendants, though professing to act as officers of the state, are threatening a violation of the per

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sonal or property rights of the complainant, is found as a fact, upon the evidence, to have for which they are personally and individual- been the way best adapted to the proper per. ly liable. This principle was plainly stated formance of the work prescribed by the act. in the opinion of the court in Poindexter v. The evidence as to the result to the plain- . Greenhow, supra, as follows: "The case then tiff's park of the acts of the defendants, in of the plaintiff below is reduced to this: He prosecuting their work of survey, while, unhad paid the tax demanded of him by a law- doubtedly, showing a cutting through the ful tender. The defendant had no authority woods, or "scarring” them, as it is called, of law thereafter to enforce other payment fails to carry a conviction that the material by seizing his property. In doing so he ceased damage was of any importance. What damto be an officer of the law and became a age there was shown, in the felling of trees, private wrongdoer. It is the simple case in was found to have been incidental to the work which the defendant, a natural private per- and necessary under the command of the act. son, has unlawfully, with force and arms, It is clear that the park, as a preserve for seized, taken and detained the personal prop- animals, or a pleasure to the eye, was not erty of another.” In re Ayers, 123 U. S. 500, sensibly, or permanently, affected by the de501, 8 Sup. Ct. 164, 31 L. Ed. 216. The prin. fendants' acts. However, the findings of the ciple thus clearly enunciated has been recog- referee are sufficient upon that subject. nized in this state in Adsit v. Brady, 4 Hill, There is no question, here, of the exercise 031, 40 Am. Dec. 305, where a superintendent of the police power of the state; nor is there of repairs on a state canal was personally of that of the right of eminent domain. held liable for his failure to remove an ob- There is, simply, a question of the necessary struction to navigation, in consequence of exercise of governmental powers in delimiting which a canal boat was injured; and in Rob- and in establishing boundary lines between inson v. Chamberlain, 34 N. Y. 389, 90 Am. political subdivisions of the state; the acts Dec. 713, where a contractor, who had been incidental to which, if not open to the charge invested with and assumed the powers of a of negligence, or of unskillfulness, would state officer, neglected to properly maintain a constitute damnum absque injuria. There lock gate within the area of his contract, was no exercise of the police power; for that causing damage to a boat and its furniture; is predicated upon the necessity of some legisand in People v. Canal Board, 55 N. Y. 391, lative regulation, having for its object the where the whole argument in the opinion is comfort, safety, health, or welfare of the predicated upon the proposition “that public citizens. Nor was there an emergency, or bodies and public officers may be restrained some overwhelming necessity, which demandby injunction from proceeding in violation of ed, and justified, the summary dealing, or inlaw to the prejudice of the public, or to the terference, with private rights of property. injury of individual rights, cannot be ques- Matter of Jacobs, 98 N. Y. 98, 108, 50 Am. tioned."

Rep. 636. There was no exercise of the right In the case at bar the complaint and the of eminent domain; because the act, in diproofs establish a cause of action against recting the public work, neither contained any individuals who have mistakenly and unlaw- language appropriate to the taking, or confully assumed to act under color of law, so demnation, of private property, nor disclosed that in its simplest analysis the ultimate an intent that any private property should question is, whether the plaintiff could main- be taken for the public use. Unless we find, tain this form of action against the defend- therefore, some authorization in the act to ants if they had professed to enter his prem- appropriate private property, as, for instance, ises simply as individuals. As that question by its destruction during the prosecution of can have but one answer, we conclude that the work, the right of eminent domain was the judgment of the courts below should be not exercised. That is something which is reversed, and a new trial had, with costs to dormant in the state until legislative action abide the event.

is had, pointing out the occasions, or the

modes, or the conditions for the appropriation. GRAY, J. (dissenting). The facts, which Cooley's Const. Lim. *528. have been stated above, were drawn by the referee from abundant evidence. A great 1902 (Laws 1902, p. 1125, c. 473), we find, in deal of the evidence in the record related to its first section, that it authorizes and directs the way in which the work of survey was the state engineer and surveyor “to locate, done, or ought to have been done. The evi- establish, and permanently mark upon the dence established, almost beyond reasonable ground” the boundary lines of certain counties cavil, that the method adopted, of creating | mentioned; to file in his office a report of the a transit, or straight, line from point to point work done, with a map showing the location, to serve as a base from which the markings establishment and permanent marking of the and monuments are made, is the best. It boundary line upon the ground, and to file appeared to be in use by the general govern- copies of the map in certain state and county ment, in the work of establishing boundary clerks' offices. The rest of the section merelines between states and countries, and, also, ly provides for the extent to which maps by other state governments. At any rate, it shall be evidence of the location of the bound

Turning to the act, which was passed in

ary lines. The second section appropriates | execution of the work, it might happen, as it the sum of $40,000 for the purposes of the happened in this case, that incidental, or act, and the third section provides the man- temporary, damage should be occasioned to ner in which the moneys appropriated shall private property, that would not characterize be paid out. It is plain enough from the what was done under the act as an exercise act that nothing is directed, or contemplated, of the right of eminent domain. It has been other than a purely governmental location held that no constitutional principle is vioand establishment of county boundary lines, lated by a statute which allows private propwith marks to make them permanent. What erty to be entered upon, and temporarily octhe defendants did was under the authoriza- cupied, for the purpose of survey and other tion of this act, and, as it has been before incipient proceedings, with a view to judging said, their work was carefully and skillfully and determining whether the public needs done; it was done according to the best, if require the appropriation and what the propnot by the only permanent, method, and there er location shall be. A party in such a case is no charge, nor pretense, of malice. The would be bound, neither to make compensadamage, if it may not be considered as rel- tion for the temporary possession, nor would atively trivial, was consequential, and, in he be liable as for a trespass. See Cooley's such a case, public officers employed in doing Const. Lim. *560; Sedgwick's Stat. & Const. the work would not come under liability. | Law, 467, and cases cited. While, therefore, Radcliff's Executors v. Mayor, etc., of Brook- it does not appear how the defendants, as lyn, 4 N. Y. 195, 205, 206, 53 Am. Dec. 357; officers of the state executing a purely govAtwater v. Trustees of Canandaigua, 124 ernmental duty in a proper manner, can be N. Y. 602, 27 N. E. 385; Cooley's Const. Lim. restrained by injunction, or can come under *542. It would furnish no ground for arrest- any liability to the plaintiff ; nevertheless, ing the work, upon which the Legislature if he had a claim against the state, by reahad determined in the interest of the state son of damage occasioned to his property, government. Waterloo W. Mfg. Co. v. Shana- he was not without a remedy, to be enforced han, 128 N. Y. 345, 362, 28 N. E. 358, 14 L. by suit in the Court of Claims. In the first R. A. 481. In Atwater v. Trustees of Canan- place, by an act passed in the following daigua, supra, the damage claimed was char

year, 1903 (Laws 1903, p. 698, c. 348), amendged to have been caused by the construction ing the act of 1902, the Legislature conferred of a temporary dam,, made necessary in the power upon the state engineer and his assistcourse of a certain public improvement au- ants to enter upon all lands in the state and thorized by law, and it was held, because a to perform any acts necessary to complete temporary structure essential to the making their work, "subject to liability only for payof the public improvements, that no cause of ment of all damages on account of entry upon action accrued to the plaintiff. It was ob- such lands and acts done thereon." This served by Judge Bradley, in his opinion, that amendment operated to ratify the acts of the "serious injury to property may be occasioned defendants and assumed liability for any by the lawful exercise of powers of a public damages occasioned. In the second place, in character pursuant to law, and, if the work 1904 (Laws 1904, p. 1363, c. 561) the Legisis carefully and skillfully performed, the con- lature conferred jurisdiction upon the Court sequences may be damnum absque injuria, of Claims "to hear, audit and determine the when the Legislature has provided for no claims for damages caused by the state encompensation." In this case, what was nec- gineer and surveyor, and his assistants, actessarily done by the state engineer upon the ing under his direction," etc. land of the plaintiff, in order to perform the The conclusions reached, therefore, are that requirements of the legislative act, was not this action cannot be maintained to restrain an appropriation, or taking, of private prop- the defendants from performing the duty deerty, otherwise than in the felling of trees volved upon them by the act, when performed in order to make the straight, or transit, line in the manner described in this case, and the for the location and permanent marking of authority of the act was not impaired by the the boundary line. The result was of a tem- absence of any provision for compensation. porary nature and effected no permanent ap- If the plaintiff has any claim against the propriation of property. It is, doubtless, state for what damage may have been occatrue, where a legislative act intends to ex- sioned to his property, under the acts of ercise the sovereign power in depriving an 1903 and 1904, above mentioned, a tribunal individual of his property, that it should pro- was open to him wherein to prosecute his vide for compensation to be made (Sage v. remedy upon that head. City of Brooklyn, 89 N. Y. 189; Matter of The judgment should be affirmed, with Mayor, etc., of N. Y., 99 N. Y. 569, 577, 2 N. costs. E. 642); but the act in question had no such intent. It contained no provision for compen- CULLEN, C. J., and EDWARD T. BARTsation for an appropriation; nor was the LETT and HISCOCK, JJ., concur with WERstate required, in the enactment of the law, NER, J. GRAY, J., reads dissenting opinion. to make provision for compensation, when O'BRIEN, J., absent. CHASE, J., not sitting. its power was not to be exercised in the appropriation of private property. If, in the Judgment reversed, etc.

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