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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) Wheth
er 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 upon 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 perhaps more, may fairly be considered as comprehended in the legislative direction "to locate, establish and permanently mark upon the ground" the disputed boundary lines. the case at bar the defendants did not stop at these temporary, preliminary, incipient and incidental things which, as we have seen, may be done without making compensation or incurring liability, but they proceeded to practically appropriate a strip of plaintiff's land, 31⁄2 miles in length and from 5 to 25 feet in width, not temporarily, but for the purpose of permanently establishing a base line, from which the boundary line could be the more readily and permanently located. This base line consisted of a "slash" in the woods covering the whole of the territory above mentioned, that it will take 80 years of timber growth to repair. And this was done, not as a necessary and essential part of the survey, or upon the line thereof, but wholly upon the plaintiff's land, and purely because, in the judgment of the state engineer, such a "slash" would make a more permanent auxiliary or sighting line to the true boundary than any other method that could have been employed. We must assume, for the referee has found, that the method employed was "the one best adapted to the proper performance of the work prescribed," and was designed to secure the most certain and permanent results. For the purposes of illustration let us suppose that the most approved and up-to-date method of surveying for boundary lines required the building of a stone wall on private property from 5 to 35 feet in width for a length of 31⁄2 miles; or that such a structure or a "slash" like the one described in the record should occupy all the land of a private owner; or that the owner's residence, which happened to be where the base line was desired to be established, was razed to the ground and the materials scattered over the ground. Would any such entry and occupation by the agents of the state be justifiable under the state's inherent power to survey and mark boundary lines? I think not. And if not, then how can the acts herein complained of be justified? The difference between the illustrations and the fact is one of degree and not of kind. It is to be emphasized again, moreover, that the "slash" cut upon plaintiff's premises was not designed to mark the boundary line or to establish a permanent monument upon it, but to maintain an independent base line for convenient future reference. This was not, in my judgment, such an establishment and permanent marking of the boundary line upon the ground as was contemplated by the statute.
We deem it unnecessary to discuss at length the proposition that such an entry and occupation as is conceded to have been made upon the plaintiff's land is a taking of property within the meaning of our state
and federal Constitutions. "Depriving an owner of property of one of its essential attributes is depriving him of his property within the constitutional provisions." People ex rel. Manh. S. Instn. v. Otis, 90 N. Y. 48-52. "When a law annihilates the value of property and strips it of its attributes, by which alone it is distinguished as property, the owner is deprived of it according to the plainest interpretation, and certainly within the spirit of a constitutional provision intended expressly to shield private rights from the exercise of arbitrary power." Wynehamer v. People, 13 N. Y. 378. "Whenever a law deprives the owner of the beneficial use and free enjoyment of his property, or imposes restraints upon such use and enjoyment, that materially affect its value, without legal process or compensation, it deprives him of his property within the meaning of the Constitution." Forster v.
Scott, 136 N. Y. 577, 32 N. E. 976, 18 L. R. A. 543. "It would be a very curious and unsatisfactory result if in construing a provision of constitutional law always understood to have been adopted for protection and security to the rights of the individual as against government, and which has received the commendation of jurists, statesmen and commentators as placing the just principles of the common law on that subject beyond the power of ordinary legislation to change or control them, it shall be held that if the government refrained from the absolute conversion of real property to the uses of the public, it can destroy its value entirely; can inflict irreparable and permanent injury to any extent; can, in effect, subject it to total destruction without making any compensation, because, in the narrowest sense of that word, it is not taken for public use." Pumpelly v. Green Bay Co., 13 Wall. (U. S.) 166, 20 L. Ed. 557. From the foregoing authorities and observations I summarize the following conclusions: That the state had no authority to do the acts complained of by the plaintiff. It did not assume to act under its power of eminent domain, or if it did, the attempted exercise of that power was unconstitutional because the statute relied upon to authorize it made no provision for compensation for the taking of private property. The supplementary statute, which, by stretch of language, may be construed as authorizing such compensation, is unavail- . ing because it was not passed until after the commission of the acts described, and it is fundamental that, although payment need not precede the taking, the provision for compensation is an indispensable precedent. Since the state cannot justify the invasion of the plaintiff's property for the purposes described under its police power, or the common-law right of necessity, or the inherent power to make surveys of its civil divisions, it follows that the acts of the defendants 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 19 argued by the 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 left open. 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 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 statute. 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. 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
sonal or property rights of the complainant, for which they are personally and individually liable. This principle was plainly stated in the opinion of the court in Poindexter v. Greenhow, supra, as follows: "The case then of the plaintiff below is reduced to this: He had paid the tax demanded of him by a lawful tender. The defendant had no authority of law thereafter to enforce other payment by seizing his property. In doing so he ceased to be an officer of the law and became a private wrongdoer. It is the simple case in which the defendant, a natural private person, has unlawfully, with force and arms, seized, taken and detained the personal property of another." In re Ayers, 123 U. S. 500, 501, 8 Sup. Ct. 164, 31 L. Ed. 216. The principle thus clearly enunciated has been recognized in this state in Adsit v. Brady, 4 Hill, 631, 40 Am. Dec. 305, where a superintendent of repairs on a state canal was personally held liable for his failure to remove an obstruction to navigation, in consequence of which a canal boat was injured; and in Robinson v. Chamberlain, 34 N. Y. 389, 90 Am. Dec. 713, where a contractor, who had been invested with and assumed the powers of a state officer, neglected to properly maintain a lock gate within the area of his contract, causing damage to a boat and its furniture; and in People v. Canal Board, 55 N. Y. 391, where the whole argument in the opinion is predicated upon the proposition "that public bodies and public officers may be restrained by injunction from proceeding in violation of law to the prejudice of the public, or to the injury of individual rights, cannot be questioned."
In the case at bar the complaint and the proofs establish a cause of action against individuals who have mistakenly and unlawfully assumed to act under color of law, so that in its simplest analysis the ultimate question is, whether the plaintiff could maintain this form of action against the defendants if they had professed to enter his premises simply as individuals. As that question can have but one answer, we conclude that the judgment of the courts below should be reversed, and a new trial had, with costs to abide the event.
GRAY, J. (dissenting). The facts, which have been stated above, were drawn by the referee from abundant evidence. A great deal of the evidence in the record related to the way in which the work of survey was done, or ought to have been done. The evidence established, almost beyond reasonable cavil, that the method adopted, of creating a transit, or straight, line from point to point to serve as a base from which the markings and monuments are made, is the best. It appeared to be in use by the general government, in the work of establishing boundary lines between states and countries, and, also, by other state governments. At any rate, it
is found as a fact, upon the evidence, to have been the way best adapted to the proper per. formance of the work prescribed by the act. The evidence as to the result to the plain tiff's park of the acts of the defendants, in prosecuting their work of survey, while, undoubtedly, showing a cutting through the woods, or "scarring" them, as it is called, fails to carry a conviction that the material damage was of any importance. What damage there was shown, in the felling of trees, was found to have been incidental to the work and necessary under the command of the act. It is clear that the park, as a preserve for animals, or a pleasure to the eye, was not sensibly, or permanently, affected by the defendants' acts. However, the findings of the referee are sufficient upon that subject. There is no question, here, of the exercise of the police power of the state; nor is there of that of the right of eminent domain. There is, simply, a question of the necessary exercise of governmental powers in delimiting and in establishing boundary lines between political subdivisions of the state; the acts incidental to which, if not open to the charge of negligence, or of unskillfulness, would constitute damnum absque injuria. There was no exercise of the police power; for that is predicated upon the necessity of some legislative regulation, having for its object the comfort, safety, health, or welfare of the citizens. Nor was there an emergency, or some overwhelming necessity, which demanded, and justified, the summary dealing, or interference, with private rights of property. Matter of Jacobs, 98 N. Y. 98, 108, 50 Am. Rep. 636. There was no exercise of the right of eminent domain; because the act, in directing the public work, neither contained any language appropriate to the taking, or condemnation, of private property, nor disclosed an intent that any private property should be taken for the public use. Unless we find, therefore, some authorization in the act to appropriate private property, as, for instance, by its destruction during the prosecution of the work, the right of eminent domain was not exercised. That is something which is dormant in the state until legislative action is had, pointing out the occasions, or the modes, or the conditions for the appropriation. Cooley's Const. Lim. *528.
Turning to the act, which was passed in 1902 (Laws 1902, p. 1125, c. 473), we find, in its first section, that it authorizes and directs the state engineer and surveyor "to locate, establish, and permanently mark upon the ground" the boundary lines of certain counties mentioned; to file in his office a report of the work done, with a map showing the location, establishment and permanent marking of the boundary line upon the ground, and to file copies of the map in certain state and county clerks' offices. The rest of the section merely provides for the extent to which maps shall be evidence of the location of the bound
ary lines. The second section appropriates the sum of $40,000 for the purposes of the act, and the third section provides the manner in which the moneys appropriated shall be paid out. It is plain enough from the act that nothing is directed, or contemplated, other than a purely governmental location and establishment of county boundary lines, with marks to make them permanent. What the defendants did was under the authorization of this act, and, as it has been before said, their work was carefully and skillfully done; it was done according to the best, if not by the only permanent, method, and there is no charge, nor pretense, of malice. The damage, if it may not be considered as relatively trivial, was consequential, and, in such a case, public officers employed in doing the work would not come under liability. Radcliff's Executors v. Mayor, etc., of Brooklyn, 4 N. Y. 195, 205, 206, 53 Am. Dec. 357; Atwater v. Trustees of Canandaigua, 124 N. Y. 602, 27 N. E. 385; Cooley's Const. Lim. *542. It would furnish no ground for arresting the work, upon which the Legislature had determined in the interest of the state government. Waterloo W. Mfg. Co. v. Shanahan, 128 N. Y. 345, 362, 28 N. E. 358, 14 L. R. A. 481. In Atwater v. Trustees of Canandaigua, supra, the damage claimed was charged to have been caused by the construction of a temporary dam,, made necessary in the course of a certain public improvement authorized by law, and it was held, because a temporary structure essential to the making of the public improvements, that no cause of action accrued to the plaintiff. It was observed by Judge Bradley, in his opinion, that "serious injury to property may be occasioned by the lawful exercise of powers of a public character pursuant to law, and, if the work is carefully and skillfully performed, the consequences may be damnum absque injuria, when the Legislature has provided for no compensation." In this case, what was necessarily done by the state engineer upon the land of the plaintiff, in order to perform the requirements of the legislative act, was not an appropriation, or taking, of private property, otherwise than in the felling of trees in order to make the straight, or transit, line for the location and permanent marking of the boundary line. The result was of a temporary nature and effected no permanent appropriation of property. It is, doubtless, true, where a legislative act intends to exercise the sovereign power in depriving an individual of his property, that it should provide for compensation to be made (Sage v. City of Brooklyn, 89 N. Y. 189; Matter of Mayor, etc., of N. Y., 99 N. Y. 569, 577, 2 N. E. 642); but the act in question had no such intent. It contained no provision for compensation for an appropriation; nor was the state required, in the enactment of the law, to make provision for compensation, when its power was not to be exercised in the appropriation of private property. If, in the
execution of the work, it might happen, as it happened in this case, that incidental, or temporary, damage should be occasioned to private property, that would not characterize what was done under the act as an exercise of the right of eminent domain. It has been held that no constitutional principle is violated by a statute which allows private property to be entered upon, and temporarily occupied, for the purpose of survey and other incipient proceedings, with a view to judging and determining whether the public needs require the appropriation and what the proper location shall be. A party in such a case would be bound, neither to make compensation for the temporary possession, nor would he be liable as for a trespass. See Cooley's Const. Lim. *560; Sedgwick's Stat. & Const. Law, 467, and cases cited. While, therefore, it does not appear how the defendants, as officers of the state executing a purely governmental duty in a proper manner, can be restrained by injunction, or can come under any liability to the plaintiff; nevertheless, if he had a claim against the state, by reason of damage occasioned to his property, he was not without a remedy, to be enforced by suit in the Court of Claims. In the first place, by an' act passed in the following year, 1903 (Laws 1903, p. 698, c. 348), amending the act of 1902, the Legislature conferred power upon the state engineer and his assistants to enter upon all lands in the state and to perform any acts necessary to complete their work, "subject to liability only for payment of all damages on account of entry upon such lands and acts done thereon." This amendment operated to ratify the acts of the defendants and assumed liability for any damages occasioned. In the second place, in 1904 (Laws 1904, p. 1363, c. 561) the Legislature conferred jurisdiction upon the Court of Claims "to hear, audit and determine the claims for damages caused by the state engineer and surveyor, and his assistants, acting under his direction," etc.
The conclusions reached, therefore, are that this action cannot be maintained to restrain the defendants from performing the duty devolved upon them by the act, when performed in the manner described in this case, and the authority of the act was not impaired by the absence of any provision for compensation. If the plaintiff has any claim against the state for what damage may have been occasioned to his property, under the acts of 1903 and 1904, above mentioned, a tribunal was open to him wherein to prosecute his remedy upon that head.
The judgment should be affirmed, with costs.
CULLEN, C. J., and EDWARD T. BARTLETT and HISCOCK, JJ., concur with WERNER, J. GRAY, J., reads dissenting opinion. O'BRIEN, J., absent. CHASE, J., not sitting.
Judgment reversed, etc.