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

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.