186 N.Y. 66 | NY | 1906
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *68
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *69 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 3¼ 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 pendentelite 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 *72 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 a hundred years prior to 1902, 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,
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 *74
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.,
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 (Chap. 348), 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 assistants, 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 *76 had been invaded before 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 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 *77 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 establish 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 companies to enter upon land for the purpose of preliminary surveys with *78 out 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, sec. 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 *79 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 demarkation 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. In 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, three and one-half miles in length and from five to twenty-five 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 eighty 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 *80 for boundary lines required the building of a stone wall on private property from 5 to 35 feet in width for a length of 3½ 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,
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 a stretch of language, may be construed as authorizing such compensation, is unavailing 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. *82
What is the plaintiff's remedy? It is argued by the learned attorney-general that the statute passed in 1904, 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 liable 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 inPoindexter v. Greenhow (
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. (
Thus, by the process of exclusion, we come to the final *84
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,
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.
Dissenting Opinion
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 performance of the work prescribed by the act.
The evidence as to the result to the plaintiff'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 *86 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,
Turning to the act, which was passed in 1902 (L. of 1902, chap. 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, *87
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 boundary lines. The second section appropriates the sum of forty thousand dollars 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., ofBrooklyn,
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 *89 the following year, 1903, (L. of 1903, chap. 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, (L. of 1904, chap. 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, Ch. J., 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.
