Chester, J.:
If the entry and use were made by the, State with the permission of the owner there, would be an implied agreement on the part of the State to pay the fair value of the use and occupation. (Collyer v. Collyer, 113 N. Y. 448; Coit v. Planer, 4 Abb. Pr. [N. S.] 140.) A stranger to the title, however, could give no valid permission to such entry and use, and if, as is alleged, the State entered and itsed the lands and waters upon the mistaken supposition that it had the consent of the owner when in fact it had no such consent, the acts would constitute a trespass unless they were done under legislative authority to appropriate the lands for a public purpose and to make just compensation therefor. Eo. such authority existed here, for the entry was made before the passage of chapter 591 of the Laws of 1904, authorizing the Forest, Fish and Game Commissioner to enter upon and take possession of lands for public purposes and giving jurisdiction to the Court of Claims to determine the amount of compensation to be made therefor in case the commissioner and the owner were unable to agree upon such amount. In order to make a lawful taking under the power of eminent domain the provision for making compensation must pre-exist the taking (Litchfield v. Bond, 186 N. Y. 66, 74), which was not the fact here. So the question is squarely presented whether the Court of Claims has jurisdiction of [524]*524a claim for damages for a trespass by the State or by-its authority. It was held in Lewis v. State (96 R. Y. 71) that the doctrine of respondeat superior was- not applicable to the State and that it was not liable for the negligence or- misfeasance of its agents except' in those cases where by legislative enactment it has assumed such liability. That was a case where a convict confined in the Elmira Reformatory presented to the Board of Audit created by chapter 444' of the -Laws of 1876, a claim for damages for injuries alleged to have been caused by the negligence of an overseer in the' reformatory. The claim was transferred pursuant to section 12 of chapter .205 of. the Laws of 1883, to the Board of Claims, where it was dismissed and such judgment was affirmed by the Court of Appeals, that court st-ating in substance, after holding that the rule of respondeat superior did not apply, that no liability was imposed upon the State for such a claim either by, chapter 444 of the Laws of 1876, creating the Board of Audit, or by chapter 205 of the Laws of 1883, establishing the Board of Claims. The statement in the opinion that no liability for such a claim was imposed by chapter 205 of the Laws of 1883, was obiter for the -reason that the claim arose and was filed in 1882, before the passage of that law, and, therefore, no question as to the liability of the State under that act was presented for determination. There were substantial reasons for holding that, in-1882 the Board of Audit had no jurisdiction of a claim for negligence or one sounding in tort, as an audit and the function of an auditing board, as those terms are ordinarily understood, relate to matters of account or those arising under contract.
But when we consider the difference in the character of the tribunals and in the jurisdiction vested in the Board of Audit at the time the Lewis case was decided and that vested in the Court of Claims when the present case was filed, we are convinced that it is not an authority supporting the dismissal of this claim for want of jurisdiction.
J urisdiction under section 2 of -the act above referred to creating the Board mf Audit (Laws -of 1876, chap. 444) was given to such board “ to hear all private claims and accounts against the State (except such as are now heard by the Canal Appraisers according to law) * * * to determine on the justice and amount thereof, and to allow such sums as it shall consider should equitably be paid by the State to the claimants.”
[525]*525Under section 7 of the act referred to, establishing the Board of Claims (Laws of 1883, chap. 205), such board was given “ jurisdiction to hear, audit and determine all private claims against the State which shall have accrued within two years prior to the time when such claim is filed * * * and to allow thereon such sums as should . be paid by the State.” Under section 13 of the act the Board of Claims was also vested with “ all the jurisdiction and power to hear and determine claims against the State now possessed by the Canal Appraisers.” By section 12 of the act the office of Canal Appraiser and the State Board of Audit were abolished.
The Canal Appraisers had jurisdiction to hear and determiné claims against the State sustained from the use and management of the canals or resulting from the negligence of any officer having charge thereof or resulting from any accident or other matter connected with the canals, but such jurisdiction did not extend to claims arising from damages resulting from the navigation of the canals. (Laws of 1870, chap. 321, § 1.)
By chapter 36 of the Laws 1897 the above act establishing the Board of Claims was repealed and the Board of Claims was continued, to be thereafter known as the Court of Claims, and the jurisdiction of such court was defined in section 264 of the Code of Civil Procedure, added thereto by that chapter. That section, as amended by chapter 370 of the Laws 1905, prescribed the jurisdiction of the Court of Claims as it existed at the time the State entered upon the lands in question and at the time this claim was filed and .which so far as material to the question here presented is as follows : “The Court of Claims possesses all the powers and jurisdiction of the Board of Claims. It also has jurisdiction to hear and determine a private claim against the State, which shall have accrued within two years. It may also hear and determine any claim on the part of the State against the claimant or against his assignor at the time of the assignment, and must render judgment for such sum as should be paid by or to the State.”
The Board of Audit, it will be seen, was limited to allowing upon claims such sums as should “ equitably be paid by the State,” while the Board of Claims and its successor, the Court of Claims, were given power to allow such sums “as should be paid by” the State without regard to whether the sum was legal or equitable.
By the section of the Code of Civil Procedure referred to, the [526]*526court is not only given all the jurisdiction of the Board of Claims, but also jurisdiction to hear and determine “ a private claim against the State ” arising within the time stated and without any restriction whatever in the language employed in the statute as to the character of the claim, except that it must be a private claim. The language is plain and is broad enough to cover every private claim of whatever character, whether arising on contract or sounding in tort, provided only that it' shall have accrued within two years. By the language employed it seems clear that the Legislature intended to extend and enlarge the jurisdiction of the Court of Claims over that held by the Board of Audit, as defined in the statutes from which we have quoted. If we are correct in this view jurisdiction has been given to it to' hear and determine the claim presented by this claimant.
This court took the same view, of the jurisdiction of that court as it then existed in Litchfield v. Bond (105 App. Div. 229). While that case has been reversed in the Court of Appeals (186 N. Y.
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Chester, J.:
If the entry and use were made by the, State with the permission of the owner there, would be an implied agreement on the part of the State to pay the fair value of the use and occupation. (Collyer v. Collyer, 113 N. Y. 448; Coit v. Planer, 4 Abb. Pr. [N. S.] 140.) A stranger to the title, however, could give no valid permission to such entry and use, and if, as is alleged, the State entered and itsed the lands and waters upon the mistaken supposition that it had the consent of the owner when in fact it had no such consent, the acts would constitute a trespass unless they were done under legislative authority to appropriate the lands for a public purpose and to make just compensation therefor. Eo. such authority existed here, for the entry was made before the passage of chapter 591 of the Laws of 1904, authorizing the Forest, Fish and Game Commissioner to enter upon and take possession of lands for public purposes and giving jurisdiction to the Court of Claims to determine the amount of compensation to be made therefor in case the commissioner and the owner were unable to agree upon such amount. In order to make a lawful taking under the power of eminent domain the provision for making compensation must pre-exist the taking (Litchfield v. Bond, 186 N. Y. 66, 74), which was not the fact here. So the question is squarely presented whether the Court of Claims has jurisdiction of [524]*524a claim for damages for a trespass by the State or by-its authority. It was held in Lewis v. State (96 R. Y. 71) that the doctrine of respondeat superior was- not applicable to the State and that it was not liable for the negligence or- misfeasance of its agents except' in those cases where by legislative enactment it has assumed such liability. That was a case where a convict confined in the Elmira Reformatory presented to the Board of Audit created by chapter 444' of the -Laws of 1876, a claim for damages for injuries alleged to have been caused by the negligence of an overseer in the' reformatory. The claim was transferred pursuant to section 12 of chapter .205 of. the Laws of 1883, to the Board of Claims, where it was dismissed and such judgment was affirmed by the Court of Appeals, that court st-ating in substance, after holding that the rule of respondeat superior did not apply, that no liability was imposed upon the State for such a claim either by, chapter 444 of the Laws of 1876, creating the Board of Audit, or by chapter 205 of the Laws of 1883, establishing the Board of Claims. The statement in the opinion that no liability for such a claim was imposed by chapter 205 of the Laws of 1883, was obiter for the -reason that the claim arose and was filed in 1882, before the passage of that law, and, therefore, no question as to the liability of the State under that act was presented for determination. There were substantial reasons for holding that, in-1882 the Board of Audit had no jurisdiction of a claim for negligence or one sounding in tort, as an audit and the function of an auditing board, as those terms are ordinarily understood, relate to matters of account or those arising under contract.
But when we consider the difference in the character of the tribunals and in the jurisdiction vested in the Board of Audit at the time the Lewis case was decided and that vested in the Court of Claims when the present case was filed, we are convinced that it is not an authority supporting the dismissal of this claim for want of jurisdiction.
J urisdiction under section 2 of -the act above referred to creating the Board mf Audit (Laws -of 1876, chap. 444) was given to such board “ to hear all private claims and accounts against the State (except such as are now heard by the Canal Appraisers according to law) * * * to determine on the justice and amount thereof, and to allow such sums as it shall consider should equitably be paid by the State to the claimants.”
[525]*525Under section 7 of the act referred to, establishing the Board of Claims (Laws of 1883, chap. 205), such board was given “ jurisdiction to hear, audit and determine all private claims against the State which shall have accrued within two years prior to the time when such claim is filed * * * and to allow thereon such sums as should . be paid by the State.” Under section 13 of the act the Board of Claims was also vested with “ all the jurisdiction and power to hear and determine claims against the State now possessed by the Canal Appraisers.” By section 12 of the act the office of Canal Appraiser and the State Board of Audit were abolished.
The Canal Appraisers had jurisdiction to hear and determiné claims against the State sustained from the use and management of the canals or resulting from the negligence of any officer having charge thereof or resulting from any accident or other matter connected with the canals, but such jurisdiction did not extend to claims arising from damages resulting from the navigation of the canals. (Laws of 1870, chap. 321, § 1.)
By chapter 36 of the Laws 1897 the above act establishing the Board of Claims was repealed and the Board of Claims was continued, to be thereafter known as the Court of Claims, and the jurisdiction of such court was defined in section 264 of the Code of Civil Procedure, added thereto by that chapter. That section, as amended by chapter 370 of the Laws 1905, prescribed the jurisdiction of the Court of Claims as it existed at the time the State entered upon the lands in question and at the time this claim was filed and .which so far as material to the question here presented is as follows : “The Court of Claims possesses all the powers and jurisdiction of the Board of Claims. It also has jurisdiction to hear and determine a private claim against the State, which shall have accrued within two years. It may also hear and determine any claim on the part of the State against the claimant or against his assignor at the time of the assignment, and must render judgment for such sum as should be paid by or to the State.”
The Board of Audit, it will be seen, was limited to allowing upon claims such sums as should “ equitably be paid by the State,” while the Board of Claims and its successor, the Court of Claims, were given power to allow such sums “as should be paid by” the State without regard to whether the sum was legal or equitable.
By the section of the Code of Civil Procedure referred to, the [526]*526court is not only given all the jurisdiction of the Board of Claims, but also jurisdiction to hear and determine “ a private claim against the State ” arising within the time stated and without any restriction whatever in the language employed in the statute as to the character of the claim, except that it must be a private claim. The language is plain and is broad enough to cover every private claim of whatever character, whether arising on contract or sounding in tort, provided only that it' shall have accrued within two years. By the language employed it seems clear that the Legislature intended to extend and enlarge the jurisdiction of the Court of Claims over that held by the Board of Audit, as defined in the statutes from which we have quoted. If we are correct in this view jurisdiction has been given to it to' hear and determine the claim presented by this claimant.
This court took the same view, of the jurisdiction of that court as it then existed in Litchfield v. Bond (105 App. Div. 229). While that case has been reversed in the Court of Appeals (186 N. Y. 66), the reversal was placed on other grounds and without questioning the view we stated.
So, too, the Legislature, since the filing of the claim in question, and apparently to take from the court the jurisdiction which we y think it possessed at the time, this .claim was filed to.hear a claim sounding in tort, at its last session amended such section 264 by limiting the jurisdiction of the Court of Claims to hear private claims to those “ arising upon or out of a contract with the State or ' an appropriation of land by the State.” (Laws of 1906, chap. 692.)
While the entry by the State upon the lands in question was alleged to have been made eight years ago, yet if such entry was a trespass, and the occupancy of the lands has been a continuing trespass by the State down to the time of filing the claim, some part thereof accrued within two years, and to that extent at least we think it was within the power of the Court- of Claims to hear, and determine. We think, therefore, the- court was in error in dismissing the claim for want of jurisdiction.
It is not to be understood that in holding that the Court of Claims has jurisdiction to hear and determine a claim for a trespass " by the State, that if it appears that the acts complained. of were done without legislative authority by individuals wrongly acting or assuming to act in its behalf, that we think the State in such a case [527]*527could be held liable, but even then the Court of Claims should not dismiss the claim for want of jurisdiction but on the merits.
Here it is alleged that the acts complained of were done by the State. That may be true, for under section 6 of the -Game Law (Laws of 1892, chap. 488), as renumbered section 7 and renamed the Fisheries, Game and Forest Law by chapter 395 of the Laws of 1895, it was made *the duty of the board of commissioners appointed under that act to “propagate and distribute food and game fishes * * * and to keep up the supply thereof in the various waters of the State and for this purpose it shall have the conduct and control of such hatching stations as are now owned or operated by the State and such as may be hereafter established.” It was also made their duty under section 7 of that act, as thus renamed and renumbered section 8, to annually make a report, to the Legislature of all their official operations, and it is to be presumed that they performed the duty so-imposed upon them. (See also Forest, Fish and Game Law [Laws of 1900, chap. 20] §§ 155, 163, 231, 232; and Laws of 1901, chap. 94).
The judgment should be reversed and a new trial granted, with costs.
All concurred.
Judgment reversed and new trial granted, with costs.