Litchfield v. Bond

• Decision Date: 02 October 1906
• Citation: 186 N.Y. 66,78 N.E. 719
• Parties: LITCHFIELD v. BOND et al.
• Court: New York Court of Appeals Court of Appeals

186 N.Y. 66

78 N.E. 719

LITCHFIELD

v.BOND et al.

Court of Appeals of New York.

Oct. 2, 1906.

Appeal from Supreme Court, Appellate Division, Third Department.

Suit by Edward H. Litchfield against Edward A. Bond and others. From a judgment of the Appellate Division (93 N. Y. Supp. 1016) affirming a judgment entered on the report of a referee in favor of defendants, plaintiff appeals. Reversed.

The plaintiff is the owner of some 9,000 acres of land, situated in the southwesterly corner of Franklin county, in this state, of which he has made a park, inclosed by a steel wire fence, stocked with large and small game, and more or less laid out in carriage drives. The defendants are the state engineer of this state and his assistants, and this action was brought to restain them from entering, or doing acts, upon the plaintiff's premised, in effectuating the provisions of an act of the Legislature relating to the establishment of the boundary lines of certain counties. Upon the trial of the action the plaintiff's complaint was dismissed, upon the report of the referee before whom the case was tried, and the judgment upon the report has been unanimously affirmed by the Appellate Division in the Third Department. The decision of the referee was formulated in findings, and therefore, so far as the facts are concerned, they are conclusively settled upon this appeal by the plaintiff. It appears that in 1902 and theretofore there had been a controversy over the boundary line between the counties of Franklin and St. Lawrence on the north and the counties of Lewis, Herkimer, Hamilton, and Essex on the south. Chapter 473, p. 1125, of the Laws of 1902 was passed by the Legislature as an act providing for the establishment of this line. Thereunder, the state engineer, with his assistants, undertook the work directed to be performed by the act and prosecuted it in good faith. The state engineer directed that the making of the survey and the marking of the boundaries required by the statute should be according to the straight base line method of survey, which was the one best adapted to the proper performance of the work, in securing the most certain and permanent results. What other methods of doing such work may have been practiced were found to be inferior. In prosecuting the survey, the assistants of the state engineer climbed the fence surrounding the plaintiff's park and cleared a ‘slash,’ or cutting, through the standing timber in his woods, which was, from first to last, some 3 1/4 miles in lenght, varied from 25 to 35 feet in width for a quarter of a mile, and for the rest of the distance from 3 to 6 feet, and involved the cutting down of some 1,400 trees. The surface thus cleared amounted to about 1 86/100 acres. It was further found with respect to the performance of the work that this cutting, while not upon the boundary line, ‘served as a base line from which to locate the boundary line which was to be marked, and was made for a purpose in its nature temporary and incidental to the location and marking prescribed by the statute.’ When making the survey, according to the straight base line system, except as to the cut timber being left upon the ground, the work was done with care and skill. The cutting, or ‘scar,’ was remote from the plaintiff's buildings and roads, and it was only noticeable from points in a line with it, or within a few hundred feet of it. The merchantable value of the wood cut from the ‘slash’ was about $100 less than the cost of removing it, and the impairment in value of the plaintiff's preserve, as an entirety, amounted to $500. According to the judgment of the referee, the plaintiff failed to make a case for relief, either upon the ground that the defendants were exercising a discretionary power, not reviewable by the courts, or, if the power was reviewable, upon the ground that it appeared to have been the best and only method of survey. He thought, too, that any taking of property of the plaintiff was under the exercise of the police power of the state. The Appellate Division, however, differed from the referee, in opinion, with respect to the theory upon which the acts of the defendants were justifiable, and that court entertained the view that whatever was done, or taken, by the defendants, it was under the right of eminent domain. While the exercise of that power was subject to the statutory limitation that just compensation must be made, the Appellate Division held that the Court of Claims was open to the plaintiff as a court with competent jurisdiction to pass upon his claim for compensation.

Gray, J., dissenting.

William G. Wilson, for appellant.

Julius M. Mayer, Atty. Gen. (James G. Graham, of counsel), for respondents.

WERNER, J. (after stating the facts).

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 3 1/4 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 pendente lite 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 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 100 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, 23 N. J. Law, 624, 57 Am. Dec. 420;Matter of Jacobs, 98 N. Y. 108, 50 Am. Rep. 636;Wynehamer v. People, 13 N. Y. 401.It is to be observed, moreover, that the police power, which is concededly an inherent attribute of sovereignty, should be permitted to override or nullify our constitutional limitations only in cases of the highest public necessity. That governmental power, like every other, is subject to the Constitution, and when it is paramount it is because it is not limited by the Constitution, or because some immediate and overruling emergency calls for the application of the maxim, ‘Salus populi suprema lex.’ If the trespasses complained of by the plaintiff were merely those of agents of the state, committed while necessarily engaged in the making of a survey to establish the boundary lines of civil divisions thereof, and which involved no such taking of private property for public use as to bring the plaintiff within the protection of the constitutional provisions embracing that subject, then it is obvious that there was neither occasion nor right for the exercise of the police power, since the inherent governmental power of the state, unrestricted by the Constitution, was ample for that purpose; and that assumption would, of course, necessarily compel the concession that the plaintiff's loss would be damnum absque injuria. It seems equally clear, however, that if the acts of the defendants went so far beyond the necessary incidents of a governmental survey as to involve the taking of plaintiff's private property for an alleged public use, the state is liable if the taking is authorized by its legislative direction, and the trespassers are liable if there is no such authority. This brings us logically to the discussion of the power of eminent domain, and to the assertion that it was exercised against the plaintiff under the statute invoked by the defendants.

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,’...