
    Curtiss B. MacIntyre et al., Claimants, v. State of New York, Defendant.
    (Claim No. 34299.)
    Court of Claims,
    August 28, 1959.
    Mauriel, Severson <& Soenniehsen {John J. Mauriel of counsel), for claimants.
    
      Louis J. Lefkowits, Attorney-General {David G. Quinn of counsel), for defendant.
   Charles T. Major, J.

This is a claim for damages alleged to have been caused by a surveyor, as an agent and employee of the State, trespassing upon claimants’ property and inserting a metal bench mark into a root of a slippery elm tree, causing the tree to decay and become destroyed.

It is conceded that on September 5, 1956, a State surveyor entered, without permission, upon claimants ’ lands; and, after chipping with a hatchet the top of the exposed part of a large root about 8 to 10 inches from the ground soil, on claimants’ slippery elm tree, affixed a plate with a brass-colored metal bench mark in the middle. Yellow paint was placed around it. The bench mark was a 20-penny nail with several washers over the shaft.

The tree — 50 to 60 years old — was 70 to 80 feet tall, and was about 15 feet from the highway pavement edge and about 25 feet from claimants’ residence. One of the claimants testified that prior to the insertion of the bench mark, the tree was in full leaf and natural growth. He observed in March or April, 1957, that some of the lower branches or twigs fell, off;

While claimants are assuming the tree was damaged and as a result thereof, it will eventually die, the testimony of the tree experts indicates otherwise. Other factors, such as inadequate food, lack of sunlight, and various diseases or insects could cause the tree to die. At the time of the trial, the tree was still alive, and there is no credible evidence that the tree is dying or will die as a result of this bench mark.

The burden of proof is upon the claimants.

The claim herein has not been assigned or submitted to any other court for audit or determination.

Under the concessions and testimony, it appears that the State committed a trespass, but the claimants have failed to prove any actual damage and, therefore, are entitled to an award of only nominal damage of six cents (6‡).

The foregoing constitutes the written and signed decision of this court upon which judgment may be entered. (Civ. Prae. Aet, § 440.)

Judgment is directed accordingly.  