#### Ferris J. Meigs, Plaintiff, *v.*James A. Roberts, as Comptroller, Etc., Defendant.

(Supreme Court, St. Lawrence Special Term,

October, 1898.)

Forest preserve — Ejectment will not lie against the comptroller to recover tax lands in the preserve — Consent of the state.

The possession acquired by the Comptroller, under section 13 of chapter 711 of the Laws, of 1893, of wild lands in the Forest Preserve, to which the State holds title under tax sales, is not actual nor of such a nature that a judgment against him, in an action of ejectment brought by the owner, would affect or disturb the possession of the State; and, even if the Comptroller were in legal possession or occupancy, the action could not be maintained, as the State has never consented in any manner that such an action and judgment should affect the title of the People to any portion of the Forest Preserve.

Aotioe of ejectment.

John P. Badger, for plaintiff.

Theodore E. Hancock, attorney-general, for defendant.

Russell, J.

Standing in front of any view of the merits of the controversy between the plaintiff and the state of Hew. York as to the validity of plaintiff’s title to the real estate in controversy, is the question of right, to test the merits of plaintiff’s claim in an action of ejectment brought against the comptroller of the state. H' a determination in favor of the plaintiff would produce only a barren judgment then the action will not lie to determine an abstract question. H the servant of the state has no such actual occupancy that the judgment against him would prevent other agents of the state from, acts of possession or protection. over the property, then this action cannot be maintained for any effective purpose.-

The subject of the controversy is wild land embraced within the forest preserve and claimed by the state under tax sales. The act of the' legislature establishing a forest commission and defining its powers and duties and for the preservation of the forests, is chapter 283 of the Laws of 1885. By that act all lands owned or there*669after acquired by the state, within certain counties should constitute tho forest preserve, be kept forever as wild forest lands and the forest commissioners should have the care, custody, control and superintendence of the preserve. §§ 7, 8 and 9.

The duties of the forest commissioners, warden, inspectors and foresters are specifically designated by sections 9, 10 and 11, and by the latter section, the forest commissioners are empowered to bring, in the name of the People, actions to recover damages for injuries and trespasses and also to prevent such injuries.

By the legislation of the state, lands may be acquired by purchase for the People of the state, to be included in the forest preserve, and also by tax sales, in the consummation of which the comptroller, as the officer of the state, has certain duties to perfect the title so that the lands bought in by the state upon tax sales may be turned over to the proper board to whose custody, from the moment the state acquires the lands, the property accruing to the state shall be confided.'

The plaintiff insists that he has the right to maintain ejectment against the comptroller, in order that the court may decide that the state did not properly acquire the lands now claimed by him, by force of section 13 of chapter 111, Laws of 1893, which is here quoted:

“ § 13. Possession of lands by the state.— The comptroller may advertise once a week for at least three weeks successively, a list of the wild, vacant and forest lands to which the state holds title, from a tax sale or otherwise, in one or more newspapers to be selected by him, published in the county in which the lands are situated, and from and after the expiration of such time, all such wild, vacant or forest lands are hereby declared to be and shall be deemed to be in the actual possession of the comptroller, and such possession shall be deemed to continue until he has been dispossessed by the judgment of a court of competent jurisdiction.”

The object of this section is plainly to give a theoretic possession to the comptroller, or the seisin which theoretically accompanies title, as the last act in the chain of the perfection of title by the •state acting through its officer and servant. It is in no manner inconsistent with the power of actual occupancy, of protection, of care and right of action to prevent or redress injuries, confided to the forest commission, whose power as well as whose duty in these respects begins the instant the state has thus perfected title. This section of the act of 1893 is not followed by any such distinctive *670and suitable direction for the actual occupancy and possession by the comptroller, and protection, as mark the provisions of law in regard to the powers of the forest commission, but is followed alone by conditional powers of cancellation, or other action looking to a restoration of the title through the comptroller to the actual owner. . The whole theory of the statute in regard to the •comptroller is to make him the officer to perfect title through tax sales, and in some cases to exercise discretion to cancel or do certain acts for purposes of redemption; while the whole theory .of the laws in regard to the forest commission is to give to them whatever of actual custody becomes necessary to accomplish the purposes for which the lands were acquired for the forest preserve. Turner v. New York, 168 U. S. 90; People v. Turner, 145 N. Y. 451.

It is well known that no action can he against the state in one of its own Courts, and the authority to take from it any money or property by judgment must be distinctly expressed and cannot be implied. People v. Dennison, 84 N. Y. 273.

It was even doubted once in England whether the king could maintain ejectment because ejectment might not be maintained against him. Adams on Eject. 78.

As a matter of course the state cannot be dispossessed of its property in its own courts by an action in form against its servant or officer. • As a matter of grace the state may, by the creation of a board of. audit or- state board of claims, allow remedial process against itself which it will recognize. The United States has occasionally permitted ejectment against its own servants or lessees. Grisar v. McDowell, 6 Wall. 363; Meigs v. McClung’s Lessee, 9 Cranch, 11.

But such rights are those purely of favor and must be expressly conceded in order to justify action.

It follows, therefore, as a logical conclusion, that an action to determine the title of the plaintiff .as against the state of Hew York cannot be maintained in the courts of the state of Hew York unless that state has, in some manner, expressly given its consent to such form of procedure. The statute relied on by the plaintiff does not' give such consent. The theory of all the legislation in regard to the forest preserve forbids even the implication of such consent. The comptroller is not in occupancy, legally speaking, of these wild lands to such an actual extent so that the judgment would disturb the possession of the state; and if he were, no lawful authority of *671the state of New York has ever consented that such a judgment should affect the title of the People to any portion of the forest preserve.

The complaint is, therefore, dismissed, with costs.

Complaint dismissed, with costs.