
    LITCHFIELD v. BOND et al.
    (Supreme Court, Appellate Division, Third Department.
    May 3, 1905.)
    1. Public Officers—State Engineer—Surveys—Incidental Destruction of Property—Liability.
    Where the State Engineer and his assistants, acting under Laws 1902, p. 1125, c. 473, authorizing the State Engineer to make a survey of a county boundary line, entered on private property and cut down timber, they were not liable therefor, though the statute did not in terms authorize any entry on private property, or provide for any compensation to owners in case of such entry.
    2. Court of Claims—Application for Relief—Eminent Domain.
    Where the State Engineer and his assistants, in making a survey of a county boundary line, pursuant to Laws 1902, p. 1125, c. 473, entered on private property and cut down timber, though the act did not authorize any entry on private property or provide for any compensation to owners in case of such entry, the owner might present his claim against the state in the Court of Claims, under Code Civ. Proc. § 264, giving such court jurisdiction to hear and determine a private claim against the state.
    3. Same—Eminent Domain—Damages.
    The constitutional provision (article 1, § 7) requiring the compensation to be made to the owner of property taken for public uses to be ascertained by a jury, or by commissioners appointed by the court, does not apply where the state takes the property; but the state may take possession, go on with its work, and await the claim' of the owner for compensation.
    [Ed. Note.—For cases in point, see vol. 18, Cent. Dig. Eminent Domain, §§ 198, 199.]
    4. Injunction—Continuing Nuisance.
    Where defendant cut down timber and brush on plaintiff’s land, and left it there, if leaving it there was a nuisance, because of the danger of forest fires, it was not a continuing nuisance which could be restrained by injunction.
    Appeal from Judgment on Report of Referee.
    Action by Edward H. Litchfield against Edward A. Bond and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.
    Argued before PARKER, P. J., and SMITH, CHASE, CHESTER, and HOUGHTON, JJ.
    Wilson & Wallis, for .appellant.
    Julius M. Mayer, Atty. Gen., and George F. Slocum, Deputy, for respondents.
   HOUGHTON, J.

The plaintiff is the owner of a forest park or game preserve, consisting of about 9,000 acres, substantially inclosed by a wire fence, and situated on the southerly borders of Franklin county. The south line of Franklin county had been long in dispute; the contending lines being nearly a mile apart, and embracing several square miles of territory, concerning which the jurisdiction of the courts and the right of suffrage and taxation were in doubt. By chapter 473, p. 1125, of the Laws of 1902, the Legislature authorized and directed the State Engineer and Surveyor to locate, establish, and permanently mark upon the ground the south boundary line of the county of Franklin, and to make and preserve a map and field notes connected therewith; appropriating the sum of $40,000 for the expenses thereof. The act did not in terms authorize an entry upon private property for the purposes of making such survey or establishing monuments, or provide for any compensation to owners in case of such entry. The total line thus directed to be surveyed and monumented was some 75 miles in length, all through forest and mountainous lands. The defendant Bond was the State Engineer and Surveyor, and the other defendants were his assistants. Consultation was had as to the best method to be adopted in making this extensive and important survey, and it was determined that the system known as the “straight base line method” was the proper one. Two mountains were selected, 15 or 20 miles apart, between which this straight base line was run; bringing such line, temporary in character only, a few hundred feet northerly of the true south line of Franklin county, as determined. In establishing this straight base line, it was necessary to cut a vista through the forest, so that a foresight and backsight might be taken. In running this line the defendants entered upon plaintiff’s lands and inclosure without his consent, and made a cutting from 6 to 25 or 30 feet in width in places; thereby felling and leaving upon the ground several hundred trees of various kinds and dimensions, thus clearing of timber about two acres in extent. There is another system of surveying lines of this character, known as the “traverse method,” which would not have necessitated any cutting upon plaintiff’s premises. But the referee has found that the base line method is the one usually and properly employed in making extensive public surveys, and that the State Engineer properly adopted that method, and located the line in a proper place, and we see no reason to disturb his conclusion in that respect. While the cutting was in progress, and the trees lying where they fell, the plaintiff brought this action to restrain the defendants from proceeding, and for the damages already incurred, and obtained a temporary injunction against them. The referee decided that the plaintiff was not entitled to a permanent injunction restraining the defendant from completing the survey in the manner determined, upon, and, the occupation of the base line being temporary only, the plaintiff was not entitled to an injunction because of past-acts, or because the timber cut was left lying upon the ground, and might thereby become a menace to forest fires. We think the conclusion of the referee must be sustained.

The defendant Bond was a public officer, performing a duty imposed upon him by the Legislature. He was within his authority in making the survey in an approved and proper manner. AVhile the act did not-expressly authorize entry upon private property, the survey could not be made without it, and the Legislature must have intended that it be done. AVhen a statute commands an act to be done, it authorizes all that is necessary for its performance. Brownell v. Town of Greenwich, 114 N. Y. 529, 22 N. E. 24, 4 L. R. A. 685; Armstrong v. Village of Ft. Edward, 159 N. Y. 318, 53 N. E. 1116. AVhere a public officer is clothed by statute with power to do an act which concerns the public interests, the execution of the power may be insisted upon as a duty, though the statute creating it be only permissive in its terms. Mayor v. Furze, 3 Hill, 612. In the absence of fraud or collusion, the acts of public officers, within the limits of power conferred upon them, and in the performance of the duties assigned, are the acts of the state. People v. Stephens, 71 N. Y. 527. The government can no more repudiate the acts of an authorized agent than can an individual. Danolds v. State of New York, 89 N. Y. 36, 42 Am. Rep. 277. A known public agent, acting in his official capacity, cannot be held personally liable for his contracts made in the government’s behalf. Story on Agency, § 305; Walker v. Swartwout, 12 Johns. 444, 7 Am. Dec. 334. The state is as much liable for the tort of its agent, when he keeps within the limits of his authority, as an individual or any other corporation. Cooley on Torts, star paging, 122, 123. It is only when a public agent is guilty of malfeasance or nonfeasance, and thus transcends his authority, that the state is relieved, and the agent becomes personally liable. Story on Agency, § 420; Adsit v. Brady, 4 Hill, 630, 40 Am. Dec. 305; Robinson v. Chamberlain, 34 N. Y. 389, 90 Am. Dec. 713; Bryant v. Town of Randolph, 133 N. Y. 70, 30 N. E. 657; Gidley v. Lord Palmerston, 3 Brod. & Bing. 275; Sutton v. Clarke, 6 Taunt. 29. Public officers lawfully employed in making public improvements are not liable for consequential damages occasioned by them to others, unless caused by misconduct, negligence, or unskillfulness. Atwater v. Trustees, etc., 124 N. Y. 608, 27 N. E. 385. Like reasoning and like policy call for the same exemption from direct damages when inflicted within authority, and without negligence, misconduct, or unskillfulness.

An act of the Legislature authorizing commissioners to enter upon the lands of individuals to ascertain Certain boundaries for public purposes, without making compensation to the owners, is not unconstitutional; and the public officers may make an entry upon private lands for the purpose of making the survey without being guilty of a trespass, provided the entry is reasonably necessary, not too long continued, and accompanied with no unnecessary damage. Winslow v. Gifford, 6 Cush. 327. The act under consideration, by implication commanding entry upon private property, stands as though it contained express direction so to do.

The underlying principle prohibiting actions against public officers personally for acts done by them in the line of their duty is that it is against public policy, because it exposes them to a multiplicity of actions, and thus hampers them in the discharge of their duties, and even prevents proper and prudent persons from accepting a public trust. Gidley v. Lord Palmerston, supra.

Our conclusion is that, the defendants having done what they did by virtue of authority of the Legislature, and having done it, as the referee finds, in a proper manner and without unnecessary injury, an action will not lie against them either to restrain the prosecution of the work, or for damages incident thereto.

But it does not follow that, if the plaintiff has been injured, he is without remedy. The state, as such, is subject to the fundamental law of the land. The difficulty is with the remedy, not with the right. Cooley on Torts, star paging, 133. The fact that the state is not subject to an action on behalf of a citizen does not establish that he has no claim against the state, or that no liability exists in his favor. Coster v. The Mayor, 43 N. Y. 399.

We think the Court of Claims was open to the plaintiff. That court has jurisdiction to hear and determine any private claim against the state, filed within the proper time. Code Civ. Proc. § 364. It has at least as great jurisdiction as the former State Board of Audit and Board of Claims had. Laws 1883, p. 311, c. 305, Laws 1897, p. 14, c. 36. Such courts have been held to be proper tribunals for the presentation of private claims against the state, such as money due upon contracts (People of the State of New York v. Dennison, 8 Abb. N. C. 128; Id., 84 N. Y. 272), damages arising from failure to properly maintain a sewer in a street (Ballou v. State, 111 N. Y. 496, 18 N. E. 627), damages resulting from a defective bridge on art abandoned portion of the carial system (Woodman v. State, 127 N. Y. 397, 28 N. E. 20), as well as damages resulting from negligence-in the use and management of the canals, themselves. Sipple v. State, 99 N. Y. 284, 1 N. E. 892, 3 N. E. 657.

The state, not being subject to action in its own courts, has established a tribunal in which claims against it may be heard. The object in view was the protection of the citizen, in giving to him a forum in which demands against and wrongs committed by the state might be adjudicated. Sipple v. State, supra.

The state, being engaged in the business of maintaining and managing the canals, has seen fit to make itself liable for injuries resulting from negligence therein; and being also, through its proper officers, engaged in the business of making contracts by which it is bound in the same manner as other corporations, we see no reason why it should not be liable for the injuries necessarily resulting from a survey directed by its Legislature to be made by one of its proper officers, or why the court established by.it should not be open to one injured thereby.

In the case of Waterloo Woolen Manufacturing Company v. Shanahan, 128 N. Y. 345, 28 N. E. 358, 14 L. R. A. 481, the action was brought to restrain the Superintendent of Public Works from diverting for canal purposes certain waters, to the injury of plaintiff’s water power. In the course of the opinion the court says:

“But if the plaintiff could establish any right to the use of the increased supply of water furnished by the state in the process of enlarging the- canal from time to time, the most that the plaintiff could then claim would be that the improvement would result in a consequential injury which might form the basis of a claim for damages or compensation before the tribunal which the state has authorized to hear and determine such claims. It would furnish no ground for arresting the work of improving and enlarging the canal in such manner as the Legislature might determine to be for the public good.”

The principle enunciated applies, it seems to us, with full force to the survey being prosecuted by the defendants.

The referee, by' a conclusion of law, states that the acts of the defendant were justified by virtue of the police power of the state, and that the property of the plaintiff was not taken by the right of eminent domain. We do not concur in the conclusion that the acts were justified by the police power. There was no such emergency and overruling necessity as to invoke that high prerogative. It can much more reasonably be said that whatever was taken or done by the defendants was under the right of eminent domain. The state has all the power of eminent domain there is, and all that any sovereign has, subject to the limitation of the Constitution—of making just compensation. The constitutional provision (article 1, § 7) requiring the compensation to be made to the owner to be ascertained by a jury or by commissioners appointed by the court does not apply where the state takes the property. The state may take possession, go on with its work, and await the claim of the owner for compensation. People v. Adirondack R. Co., 160 N. Y. 236, 54 N. E. 689; Waterloo Woolen Mfg. Co. v. Shanahan, supra. The taking title to lands is not a necessity in condemnation, nor need the occupation be continuous. Cooley, on Constitutional Limitations (6th Ed.) 656, 671; Glover v. Powell, 10 N. J. Eq. 212. Where property is taken directly by the state, it is not necessary that compensation be specifically provided before appropriation. The faith of the state is ample security, and it is sufficient if provision is made by law by which the party can obtain compensation, and that an impartial tribunal is provided for assessing it. Cooley’s Const. Lim. (6th Ed.) 692. If lands or easements are taken for canals or for the State Adirondack Park, the provision of the Constitution is met by permitting the owner to go to the Court of Claims and prove his damages.

By section 269 of the Code of Civil Procedure it is provided that, “if the claim arises in a case where the state seeks to appropriate or has appropriated land for a public use, the judgment shall contain a description of such land”; and further provision'is made for the payment of judgments on the warrant of the Comptroller, and, “where damages are awarded for the permanent appropriation of land for á public use, there shall also be filed with the Comptroller a satisfactory abstract of title.” These provisions would seem to contemplate payment for general condemnation by the state, as well as for specific instances and purposes.

It is true that much, of necessity, must be read into the statute directing the survey, in order to make it a statute authorizing condemnation; but, in one form or another, if the state, through its officer, has caused injury to the plaintiff in the prosecution of a public work commanded by its Legislature, we think the Court of Claims must be open to him to prove and recover his damage.

The question involved on this appeal is not one of attempted justification for continuing a nuisance, and does not come within the principle of Cogswell v. N. Y., N. H. & H. R. Co., 103 N. Y. 10, 8 N. E. 537, 57 Am. Rep. 701, and kindred cases.

The damage had been done, the occupation had been had, at the time of bringing the action; and if the leaving of the cut timber and brush upon the ground was a menace to forest fires and to plaintiff’s surrounding property, and thus became a nuisance, plaintiff’s injunction restrained the defendants from actual or attempted removal or abatement. Even if the leaving of the brush and timber be deemed a nuisance, it is not one which the defendants continued to maintain by any overt act, the continuance of which could be restrained by injunction.

Our conclusion is that the judgment must be affirmed, upon the law and the facts, with costs. All concur.  