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 *Page 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, 98 N.Y. 98,108.) 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 (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, *Page 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, 4 N.Y. 195, 205, 206; Atwater v. Trustees ofCanandaigua, 124 ib. 602; 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.) 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 providedfor no compensation." In this case, what was necessarily done by the *Page 88 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 ib. 569, 577), 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 *Page 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.