
    Thomas Tripee et al., Respondents, v. Port of New York Authority, Appellant, et al., Defendants.
    Argued January 14, 1964;
    decided April 2, 1964.
    
      
      Daniel B. Goldberg, Sidney Goldstein, Nathaniel Fensterstock, Joseph Lesser and Alan J. Littau for appellant.
    I. Sovereign immunity from suit in the absence of legislative waiver applies to all actions against the sovereign and its agencies not excepting suits founded on alleged violations of constitutional rights. Such rights are safeguarded by statutory waivers such as chapter 301 and by the corollary doctrine that public officials are judicially accountable in their personal capacities for such alleged violations. (Matter of Clark v. Water Comrs. of Amsterdam, 148 N. Y. 1; Heyward v. City of New York, 7 N. Y. 314; Locke v. State of New York, 140 N. Y. 480; Buckles v. State of New York, 221 N. Y. 418; Pauchogue Land Corp. v. Long Is. State Park Comm., 243 N. Y. 15; People ex rel. Palmer v. Travis, 223 N. Y. 150; Coster v. Mayor of Albany, 43 N. Y. 399; Benz v. New York State Thruway Auth., 9 N Y 2d 486, 369 U. S. 147; Matter of New York Post Corp. v. Moses, 10 N Y 2d 199; Quayle v. State of New York, 192 N. Y. 47; Hans v. Louisiana, 134 U. S. 1; Rexford v. Knight, 11 N. Y. 308; Easley v. New York State Thruway Auth., 1 N Y 2d 374.) II. Time bars imposed in. legislative withdrawals of sovereign immunity are enforced as jurisdictional prerequisites to suit. (Gates v. State of New York, 128 N. Y. 221; Stewart v. State of New York, 105 N. Y. 254; Benedict v. State of New York, 120 N. Y. 228; Harris v. Lord Elec. Co., 281 App. Div. 693; Rao v. Port of N. Y. Auth., 222 F. 2d 362, 122 F. Supp. 595.) III. Whether or not jurisdiction would have existed over plaintiffs’ action without the consent provided in chapter 301, the time bar of that act applies. It was the intention of the Legislature to provide a complete and exclusive system for the commencement of actions by private litigants against the Port Authority. (Bush Term. Co. v. City of New York, 282 N. Y. 306.) IV. Applying the time bar of chapter 301 need not leave plaintiffs without a forum to adjudicate their claim for damages for future disturbances as well as those alleged to have occurred during the year before suit. (Bacon v. United States, 295 F. 2d 936; Davis v. United States, 295 F. 2d 931; Galway v. Metropolitan El. Ry. Co., 128 N. Y. 132; Thomann v. City of Rochester, 256 N. Y. 165; Van Voorhis v. State of New York, 21 Misc 2d 86.)
    
      David G. Lubell and Joseph P. Marcelle for respondents.
    I. The Appellate Division properly held the doctrine of sovereign immunity inapplicable to plaintiffs’ cause of action for compensation for the constitutional taking of private property for a public use. (United States v. Causby, 328 U. S. 256.) II. The right of compensation for the taking of property, an easement, for public use is a right created and guaranteed absolutely by the State Constitution, is not subject to sovereign immunity and is self-executing. (Cox v. City of New York, 265 N. Y. 411; Matter of Clark v. Water Comrs. of Amsterdam, 148 N. Y. 1; Heyward v. City of New York, 7 N. Y. 314; Bernardine v. City of New York, 294 N. Y. 361; Weiss v. Fote, 7 N Y 2d 579; Markey v. County of Queens, 154 N. Y. 675; Murtha v. New York Homeopathic Med. Coll. & Flower Hosp., 228 N. Y. 183; McCrink v. City of New York, 296 N. Y. 99; People v. Carroll, 3 N Y 2d 686; Chick Springs Water Co. v. State Highway Dept., 159 S. C. 481; Benninger v. State, 70 Idaho 170; Hickman v. City of Kansas, 120 Mo. 110; Berry v. Southern Pine Elec. Power Assn., 222 Miss. 260.) III. The State and Federal constitutional provisions requiring compensation for a taking as part of the Bill of Rights of such Constitutions operate to restrict and release the immunity of the sovereign. (Holmes v. County of Erie, 266 App. Div. 220, 291 N. Y. 798; United States v. Lee, 106 U. S. 196; Ex parte Milligan, 4 Wall. [71 U. S.] 2.) IV. The Supreme Court has proper jurisdiction over the instant action against defendant Port Authority for compensation for the public taking. (Niagara Falls Power Co. v. White, 267 App. Div. 236, 292 N. Y. 472; American Bank Note Co. v. New York El. R. R. Co., 129 N. Y. 252; McHale v. State of New York, 304 N. Y. 674; Kane v. New York El. R. R. Co., 125 N. Y. 164; Butler v. Frontier Tel. Co., 186 N. Y. 486; Rockland Light & Power Co. v. City of New York, 289 N. Y. 45; People ex rel. Sound Realty. Co. v. Nicholson, 277 N. Y. 101; Williams v. New York Cent. R. R. Co., 16 N. Y. 97; Story v. New York El. R. R. Co., 90 N. Y. 122; Scallon v. Manhattan Ry. Co., 185 N. Y. 359; Domschke 
      v. Metropolitan El. Ry. Co., 148 N. Y. 337; O’Reilly v. New York El. R. R. Co., 148 N. Y. 347; Pappenheim v. Metropolitan El. Ry. Co., 128 N. Y. 436; Lynch v. Metropolitan El. Ry. Co., 129 N. Y. 274; Van Allen v. New York El. R. R. Co., 144 N. Y. 174; Muhlker v. New York & Harlem R. R. Co., 197 U. 8. 544.) V. The Appellate Division properly held that defendant’s consent to suit statute was inapplicable to plaintiffs’ action for compensation for the constitutional taking of private property for public use. (Harris v. Lord Elec. Co., 281 App, Div. 693; Marmor v. Port of N. Y. Auth., 203 Misc. 568; Logan County v. Adler, 69 Col. 290; State Road Dept. of Fla. v. Tharp, 146 Fla. 745; Monongahela Nav. Co. v, United States, 148 U. S. 312; Board of Educ. v. Barnette, 319 U. S. 624; Federal Trade Comm. v. American Tobacco Co., 264 U. S. 298; Becker Co. v. Cummings, 296 U. S. 74; Eastern R. R. Conference v. Noerr Motors, 365 U. S. 127.)
   Chief Judge Desmond.

The 809 plaintiffs are owners of residences in the vicinity of Kennedy (formerly Idlewild) International Airport in Queens County, Defendant Port Authority which operates the airport is a governmental agency of the States of New York and New Jersey (see Whalen v. Wagner, 4 N Y 2d 575). A number of airlines which use the airport are defendants, also, but on this appeal we are not concerned with the suit as against the airlines but with the complaint’s first cause of action which is asserted against the Authority alone.

Shortly stated, our question is: does the one-year statutory limitation on suits against the Authority (New York L. 1950, ch. 301, § 7, and New Jersey L. 1951, ch. 204) require the granting of the Authority’s motion to strike from the first count of the complaint all allegations relating to such or so much of plaintiffs’ claims for compensation for alleged taking of plaintiffs ’ properties as accrued more than one year before this action was brought?

Special Term granted the Authority’s motion to the extent of striking out those allegations only which complained of trespasses and nuisances committed before December 14, 1960—-that is, more than a year before suit was brought. The court’s holding was that as to trespass and nuisance claims the statutory one-year time limitation applied to toll the suit as against the Authority. Special Term denied the motion as to the alleged takings of property before December 14, 1960, holding that there was no one-year or other time limit on a suit for the taking of private property by the Authority without compensation. The Appellate Division affirmed, its view being that the statute (N. Y. L. 1950, ch. 301, § 7) has nothing to do with suits for unlawful taking of property, and that suits therefor are subject to no time limitations except the 15-year prescription period of former section 37 of the Civil Practice Act.

We turn to the complaint. In substance, the first cause of action (with which we are dealing) says that beginning in 1947 and continuously thereafter airplanes using the airport made so much noise and flew so near plaintiffs’ houses as to deprive plaintiffs of the quiet use and enjoyment thereof, that plaintiffs’ properties through all that period have been used by the Authority as an approach area for planes with the result that the Authority, without taking any condemnation proceedings or paying any compensation, has not only been guilty of nuisances and trespasses but is chargeable with the illegal and noncompensated taking of plaintiffs’ properties.

We hold that the one-year limitation is mandatory as to all suits against the Port Authority. Until chapter 301 of the Laws of 1950 (and its New Jersey counterpart) came onto the statute books the Port Authority as a direct agency of the State of New York was, in the absence of any consent by the State, completely immune from suits of any sort (Pauchogue Land Corp. v. Long Is. State Park Comm., 243 N. Y. 15; Locke v. State of New York, 140 N. Y. 480; People ex rel. Palmer v. Travis, 223 N. Y. 150; Easley v. New York State Thruway Auth., 1 N Y 2d 374; Benz v. New York State Thruway Auth., 9 N Y 2d 486, cert. dsmd. 369 U. S. 147). There is of course a prohibition in our State Constitution (art. I, § 7) against the taking of private property for public use without compensation. But recognition of the validity of a claim and provision for its enforcement are two quite different things. “ A valid cause of action may exist but the state’s immunity prevents its enforcement ” (Buckles v. State of New York, 221 N. Y. 418, 423-424). The practice has been for the State to pass consent statutes (see historical survey in People ex rel. Palmer v. Travis, 223 N. Y. 150, supra), but it remains the law that although the State “ cannot take private property, though for public use, without making just compensation therefor ” it or its agencies cannot without express consent by the State ‘ ‘ be sued directly, but its agents may be sued and enjoined ” (Coster v. Mayor of Albany, 43 N. Y. 399, 408; see, generally, People ex rel. Herrick v. Smith, 21 N. Y. 595). As recently as 1961 in Benz v. New York State Thruway Auth. (9 N Y 2d 486, 489, supra) we said as to the Thruway Authority that the Legislature ‘ ‘ ‘ could have forbidden suits to be maintained against the Authority in any court or tribunal ’ ” (see discussion of Benz in Matter of New York Post Corp. v. Moses, 10 N Y 2d 199). The right of the State to refuse its consent to the enforcement in court of a valid claim has been completely settled for many years (Danolds v. State of New York, 89 N. Y. 36; Quayle v. State of New York, 192 N. Y. 47; see Hans v. Louisiana, 134 U. S. 1; Palmer v. Ohio, 248 U. S. 32). And, since the State may decline to consent, its consent if given may be made contingent on a suit being brought or a demand being made within a reasonable time (Rexford v. Knight, 11 N. Y. 308; Gates v. State of New York, 128 N. Y. 221, 228; 1 Nichols, Law of Eminent Domain [3d ed.], § 4.102, pp. 323-324; see United States v. North Amer. Co., 253 U. S. 330, 333).

We come now to the core of plaintiffs’ argument. They find it necessary to read section 7 of article I of the New York Constitution not only as a mandate for payment but as a complete and self-executing authorization for suits against the State for property takings. It follows, they say, that chapter 301 of the Laws of 1950, since it contains a consent to suits as well as a time limitation thereon, could not have been intended by the Legislature to apply to suits against the State or its agencies for takings. In other words, the Constitution itself, they contend, sets up procedures for suits by citizens for property appropriations and chapter 301 of the Laws of 1950 must refer to something else. The first answer is found in the statute (ch. 301) itself. In its section 1 the statute gives New York’s consent to “ suits, actions or proceedings of any form or nature * * * against the Port of New York Authority ” and in section 7 limits that consent by stating that it is granted upon the condition that “ any suit, action or proceeding prosecuted or maintained under this act * * * be commenced within one year after the cause of action therefor shall have accrued The sweeping coverage of chapter 301 simply makes impossible any exclusion therefrom of any particular kind of suits except those specifically excluded in other parts of chapter 301 (see Rao v. Port of N. Y. Auth., 122 F. Supp. 595, affd. 222 F. 2d 362, as to this statute’s being clear and unambiguous and requiring strict construction).

Plaintiffs’ argument from the State Constitution is a double one. First, plaintiffs say that subdivision (a) of section 7 of article I of the State Constitution is in itself not only a self-executing, complete and absolute guarantee of compensation but also a waiver of immunity or, rather, a recognition that there is no sovereign immunity from suit for such compensation.

The relevant part of section 7 of article I is in two parts. Subdivision (a) says that Private Property shall not be taken for public use without just compensation.” As we have fully demonstrated above, this states a liability but has nothing to do with enforcement of the claim or with sovereign immunity from suit, which are quite different things (Buckles v. State of New York, 221 N. Y. 418, 423, supra). Subdivision (b) of section 7 of article I of the State Constitution reads thus: ‘‘ When private property shall be taken for any public use, the compensation to be made therefor, when such compensation is not made by the state, shall be ascertained by a jury, or by the supreme court without a jury, but not with a referee other than an official referee, or by not less than three commissioners appointed by a court of record, as shall be prescribed by law.” This language is on its face no more than a listing of the tribunals or agencies by which compensation is to be fixed. Consent to suit is not included and must be looked for elsewhere.

Plaintiffs insist that this provision (N. Y. Const., art. I, § 7, subd. [b]) was self-executing without any further prescription of procedures and that, therefore, when the Legislature passed the Port Authority Act the limitations in the new statute must have been intended to apply to causes of action other than for the taking of real property. The opposite of this was decided, just after the 1847 Constitution went into effect, in People ex rel. Dubois v. Supervisors of Ulster County (3 Barb. 334). The Dubois case says that article I (§ 7, subd. [b]) prescribes only the mode for fixing the compensation, that it contemplated legislation as to authorizing suits, etc., and that without such legislotion no suit for damages would lie. The constitutional language itself “as * * * prescribed by law ” bears this out. Indeed, the same point was disposed of in People v. Adirondack Ry. Co. (160 N. Y. 225, 237) where this court said that the subdivision (b) provision of section 7 of article I merely marked “ certain boundaries ” and that within those boundaries the “ method ”, etc., is up to the Legislature.

Plaintiffs argue that the time limitation and demand requirement of chapter 301 could not have been intended to apply to such a suit as this because those requirements are linked in the statute with a consent to suit. Therefore, say plaintiffs, the Legislature must have been talking about the kinds of actions as to which the Port Authority had immunity and thus not about suits for the taking of land. This, of course, goes back to the constitutional construction which we reject, that is, that the Constitution itself without saying so effectively waived immunity for the State and its agencies as to suits for such takings. Without such a statute complete immunity would exist. But, even if the Authority did not have immunity as to these suits before this statute was passed, the statutory consent to suits would merely have been unnecessary and confirmatory only and would not invalidate the legislative time limitation. In other words, the Port Authority was or was not immune from suit and recitals in this statute would not change it (see, as to a similar question regarding the Port Authority’s immunity from taxation, Bush Term. Co. v. City of New York, 282 N. Y. 306, 317 et seq.).

Plainly, the only question before us is the one decided by the Appellate Division and sent to us by that court’s grant of leave — that is, does the statute’s one-year time limitation for bringing suits against the Authority apply to the ‘ ‘ takings ’ ’ alleged in the first cause of action 1 Since that cause of action alleges that these things occurred continuously from and after 1947 until the bringing of suit in 1961, the Authority properly raised this issue of applicability of the one-year limitation by demanding (among other things) in its notice of motion and supporting papers that there be eliminated from the complaint all allegations as to wrongs committed prior to December, 1960.

Decision on this sole question does not require or permit us to go into other questions of evidence or damages. We are passing only on the general and inclusive meaning of the statute as a Statute of Limitations. After the determination of this appeal there will probably remain in the case awaiting the trial a number of hard questions but there is no occasion for answering them on an appeal which brings before us no question other than the single and simple one: Is there applicable hereto the one-year time limitation of section 7 of chapter 301 of the Laws of 1950?

The Port Authority, therefore, was entitled to an order striking from the first cause of action all parts thereof which complain of wrongs allegedly committed more than a year before the action was commenced. In so deciding we pass on no other question and express no opinion as to the right of plaintiffs to recover on any theories of continuing or successive wrongs or increase of damages, etc.

The order should be reversed, with costs, the certified question answered in the negative and the case remitted to Special Term for further proceedings on the motion, not inconsistent herewith.

Fuld, J.

(concurring). I disagree with the court’s conclusion

that a special legislative consent is needed before a property owner may sue to recover for the taking of his property by the State or one of its agencies. This State’s Constitution, in unequivocal terms, establishes an owner’s right to just compensation ” if his property is acquired for public use and, in effect, mandates that such compensation be paid (N. Y. Const., art. I, § 7, subd. [a]). It is my opinion, therefore — and it reflects the thinking of the high courts of many states with constitutional provisions similar to ours ***S.— that the doctrine of sovereign immunity may not be invoked to defeat a claim for damages based on the State’s taking of private property for public use, in violation of the constitutional guarantee.

Although this would lead me to conclude that no further consent .is required to entitle property owners to sue for a taking of their property and that the one-year time bar in the 1950 consent to suit statute (L. 1950, ch. 301) does not apply to a cause of action grounded on a taking of easements of light and air, I am able to concur in the court’s decision. The asserted interference with the plaintiffs’ property rights here complained of is not unlike the sort of interference which elevated railroad structures occasioned to abutting property owners in bygone days. In those elevated railway cases, as in the case before us, the court was confronted with acts which amounted to, or could be described as, continuing trespasses. Redress was given by way of damages for past injuries — to the extent that they were not barred by the Statute of Limitations applicable to causes of action for trespass—plus damages for anticipated future injuries to the rights of such abutting owners, measured by the diminution in the market value of the property. (See Galway v. Metropolitan El. Ry. Co., 128 N. Y. 132; Pappenheim v. Metropolitan El. Ry. Co., 128 N. Y. 436; American Bank Note Co. v. New York El. R. R. Co., 129 N. Y. 252; Drucker v. Manhattan Ry. Co., 213 N. Y. 543, 549, and cases cited; see, also, Cox v. City of New York, 265 N Y. 411.)

There is no reason why the legal rules formulated in the cases involving the earthibound elevated railway should not be invoked in dealing with airborne craft. (Cf. Friendly, Billyou on Air Law [Book Rev.], 77 Harv. L. Rev. 582, 583.) Based on this analogy, the claims for past injuries sound exclusively in tort and, consequently, that portion of the plaintiffs’ claims is controlled by the one-year Statute of Limitations prescribed by chapter 301 of the Laws of 1950, wholly apart from the ground on which the court reaches that result.

I would but add that the court’s reversal will not prevent proof of the operations of the airport since 1947 insofar as such proof may have a bearing on the nature and extent of the asserted invasion of the plaintiffs’ property rights, reasonably to be anticipated. (Cf. Thomann v. City of Rochester, 256 N. Y. 165, 171.)

Van Voorhis, J.

(concurring). Regardless of whether the Port of New York Authority was immune from suit prior to the enactment of chapter 301 of the Laws of 1950, that chapter, in my view, bars any tort claims or claims for damages for the taking of real property more than one year prior to the commencement of the action (cf. Court of Claims Act, § 10). The court is not now deciding what constitutes a taking, leaving that to be determined on the basis of evidence to be adduced at the trial. For this reason I concur in the result.

Judges Dye, Scileppi and Bergan concur with Chief Judge Desmond ; Judge Fuld concurs in a separate opinion in which Judge Bubke concurs; Judge Van Voorhis concurs in a memorandum.

Order reversed, with costs in this court and in the Appellate Division, and the matter remitted for further proceedings in accordance with the opinion herein. Question certified answered in the negative. 
      
      . See, e.g., Bacich v. Board of Control, 23 Cal. 2d 343, 346; Board of Cornrs. V. Adler, 69 Col. 290, 291; State Road Dept. of Fla. v. Tharp, 146 Fla. 745, 749; Renninger v. State, 70 Idaho 170, 177; Roe v. County of Cook, 358 Ill. 568, 571; Keck v. Hafley, 237 S. W. 2d 527, 529 [Ky.] ; Bernard v. State, 127 S. 2d 774, 777 [La.] ; State v. Bentley, 216 Minn. 146, 158 et seq.) Chick Springs Water Co. v. State Highway Dept., 159 S. C. 481, 502; see, also, 6 Nichols, Law of Eminent Domain [3d ed; 1964 Supp.], p. 151.
      Although our court has not expressly dealt with the subject, our decisions to the effect that the liability to pay for property taken for public use is “ constitutional,” not statutory, actually point in the direction followed by the out-of-state cases cited. (See, e.g., Matter of Clark v. Water Comrs., 148 N. Y. 1, 7-8; Heyward v. City of New York, 7 N. Y. 314, 324; see, also, People v. Supervisors of Westchester, 12 Barb. 446.)
     