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(1897) 152 N. Y. 12, 46 N. E. 296, 57 A. S. R. 492, 37 L. R. A. 227, affirming 4 App. Div. 82, 39 N. Y. S. 865. See also People v. Van de Carr, (1896) 150 N. Y. 439, 44 N. E. 1040, affirming 7 App. Div. 608, 39 N. Y. S. 581. Policy gambling.- Section 344 of the Penal Code, making 'policy" gambling or the willful possession of the apparatus to be used therein a crime, is not an unwarrantable interference with private property but is sanctioned by this section. People v. Adams, (1903) 176 N. Y. 351, 68 N. E. 636, 98 A. S. R. 675, 63 L. R. A. 406, affirming 85 App. Div. 390, 83 N. Y. S. 481, and affirmed in 192 U. S. 585, 24 S. Ct. 372, 48 U. S. (L. ed.) 575.

§ 10. Sovereignty in lands.

Escheat.

The people of this State, in their right of sovereignty, are deemed to possess the original and ultimate property in and to all lands within the jurisdiction of the State; and all lands the title to which shall fail, from a defect of heirs, shall revert, or escheat to the people.

Const. 1846, Art. I, § 11; continued without change in Const. 1894, Art. I, 10.

Original and ultimate property."- This section in declaring that the people are deemed to possess the original and ultimate property in all the lands, affirms a principle of political sovereignty, and does not establish a rule of evidence. "The people are deemed,' not presumed, to possess the original and ultimate property, etc.; in other words, all private titles are held from them as the political sovereignty, as in England all lands are held under the Crown in the same sense. When, by the Revolution, the Colony of New York became separated from the Crown of Great Britain, and a republican government was formed, the people succeeded the King in the ownership of all lands within the State which had not already been granted away, and they became from henceforth the source of all private titles. To the same source, also, titles return by reverter or escheat when the person last seised dies, without heirs capable of inheriting. The Constitution is simply declaratory of these principles as fixed and unalterable rules of public law. Its language is quite inappropriate, regarded as the expression of a mere rule of evidence convenient to be used on the trial of an ejectment, but having no conclusive force. Such was not the intention, and such is not the effect of the clause referred to. The ownership or right of property therein mentioned is fixed and unchangeable. It can never pass away from the people by grant or otherwise, because it is the original and ultimate ownership of the political sovereign which is referred to, and the title or estate which a private person can acquire to himself and his heirs to be holden of the State and subject to escheat. By whatever name we may call the highest estate of an individual known to our laws, there is a theoretical title in the State of still higher nature, to which the right of possession and enjoyment become annexed on the failure of the inheritance. This is the original and ultimate' property spoken of in the Constitution." People v. Trinity Church, (1893) 22 N. Y. 44.

Nature of property included. In respect to the rights acquired under this section by the state there is no essential difference between real and personal property, although "the doctrine of escheat applies only to legal estates and does not, in a strict sense, affect either equitable estates or personal property." Johnson v. Spicer, (1887) 107 N. Y. 185. 13 N. E. 753.

Release of escheated lands. The Act of April 29, 1933, authorizing the commissioners of the land office to release lands escheated to the state, and the amendatory act of March 18, 1934, were not, so far as respects lands which escheated after their passage, laws appropriating to public moneys or property within the meaning of article 7, section 9 of the Constitution of 1821, so as to require a two-thirds vote by the legislature. Englishbe v. Helmuth, (1888) 3 N. Y. 294.

8 11. Feudal tenures abolished.

All feudal tenures of every description, with all their incidents, are declared to be abolished, saving however, all rents and services certain which at any time heretofore have been lawfully created or reserved.

Const. 1846, Art. I, § 12; continued without change in Const. 1894, Art. I, § 11.

Property held by feudal tenure is property held not absolutely and independently but of some superior. "The grand and fundamental maxim of all feudal tenure is this: that all lands were originally granted out by the sovereign, and are therefore holden, either mediately or immediately, of the crown. The grantor was called the proprietor, or lord: being he who retained the dominion or ultimate property of the feud or fee; and the grantee, who had only the use and possession, according to the terms of the grant, was styled the feudatory, or vassal, which was only another name for the tenant, or holder of the lands; though, on account of the prejudices which we have justly conceived against the doctrines that were afterwards grafted on this system, we now use the word vassal opprobriously, as synonymous to slave or bondman." Blackstone, Book II, p. 53.

§ 12. Allodial tenure.

All lands within this State are declared to be allodial, so that, subject only to the liability to escheat, the entire and absolute property is vested in the owners, according to the nature of their respective estates.

Const. 1846, Art. I, 13; continued without change in Const. 189. Art. I, § 12.

Allodial property is property held independently and of no superior. It may be defined "to be every man's own land, which he possesseth merely in his own right, without owing any rent or service to any superior. This is property in its highest degree; and the owner thereof hath absolutum et directum dominium, and therefore is said to be seised thereof absolutely in dominico suo, in his own demesne." Blackstone, Book II, p. 105.

§ 13. Leases of agricultural lands limited.

No lease or grant of agricultural land for a longer period than twelve years, hereafter made, in which shall be reserved any rent or service of any kind, shall be valid.

Const. 1846, Art. I, § 14; continued without change in Const. 1894, Art. I, § 13.

Scope. These provisions do not, of course, apply to lands worthless and unfit for agricultural purposes. Witherbee v. Stower, (1880) 23 Hun 27. See also Massachusetts Nat. Bank v. Shinn, (1900) 163 N. Y. 360, 57 N. E. 611, affirming 18 App. Div. 276, 46 N. Y. S. 329; Odell v. Durant, (1875) 62 N. Y. 524.

Necessity of reservation of rent or services.- Prior to the adoption of this section it had been the custom for proprietors instead of selling their farm lands outright to demise them to tenants for long periods of time, reserving to themselves rents in money, produce or services. The tenants, having only a usufructuary interest, were naturally not impelled to improve their lands, and that circumstance proved prejudicial to the prosperity of the state. Construed in the light of those conditions, therefore, this section prohibits only such leases of over twelve years in length as reserve an annual or periodical rent or service, rent being taken to mean a certain profit issuing yearly out of lands. Grants of agricultural lands made on other consideration for over twelve years are not inhibited, even though the consideration is continuing and is not payable in a lump sum. Parsell v. Stryker, (1869) 41 N. Y. 480; Stephens v. Reynolds, (1852) 6 N. Y. 454. Thus, in Stephens v. Reynolds, supra, this was said: The leases or grants of land prohibited by the constitution, were such as were held by the tenants, upon a reservation of an annual or periodical rent, or service, to be paid as a compensation for the use of the lands, in contradistinction from a consideration paid for the estate granted. It is still competent to make a grant for life or lives, upon a given consideration, to be paid for the estate. This consideration may be payable all at once, or by instalments, or in services, so that it be not by way of rent." The court there held valid a lease for life made in consideration of a promise by the lessee to care for and support the lessor so long as the latter should live, that consideration being neither rent nor services within the meaning of this section. Similarly, in Stilwell v. Melrose, (1878) 15 Hun 378, the court held that the grant of a base, qualified or determinable fee, in consideration of the grantee's erecting a factory on the premises granted is not a lease with a reservation of rents and services, and though the estate created may last more than twelve years is not violating this section.

The absolute sale of a dower estate in farm lands is not forbidden. Rutherford v. Graham, (1875) 4 Hun 796.

The purpose for which farm lands are leased is immaterial if the lands may be used for agriculture. The lease, whatever its purpose, must exclude that use, or it will be void if for a term exceeding twelve years. Thus a lease of agricultural lands for seventeen years was declared invalid, though made for mining purposes, in view of the fact that the use of the lands was not specifically restricted to those purposes. Odell v. Durant, (1875) 62 N. Y. 524. Alluding to the lease there made, the court said: "There was nothing in this lease which precluded the lessee from using the land, other than the part specifically reserved, for agricultural purposes if he saw fit. The whole value of the premises may have consisted in their use for agriculture, even though that may not have been the purpose for which the premises were in fact leased, still, being agricultural lands and there being no restriction in the lease as to their use, the constitutional prohibition applies. If all that was intended to be demised was the mining right, the lease should have been put in that form and it would have been free from objection."

Agricultural use prohibited. If the use of the land for agricultural purposes is specifically inhibited, the lease is not of a farm to be used as a farm and is, therefore, valid, though for a term of over twelve years. Thus, this section is not violated by a lease for twenty years of all the iron ore contained in, on or under a farm where the lessee is expressly prohibited from permitting any business to be done upon the premises "other than the

The

business of mining," while the lessor has the right to use "such portions of the surface" for farming purposes as he chooses, until the lessee elects to use the same for his mining operations. "This lease does not come within the spirit of the constitutional prohibition, because the property leased was an iron mine extending for an unknown distance under agricultural lands, and was to be used exclusively for mining purposes. The right granted was to mine and carry away the iron ore found under the surface of the ground, and, as incidental thereto, the further right to erect such structures and build such roads as were necessary for the primary object of mining. lands not needed for this purpose were to be used by the lessor for agricultural purposes. There was to be no interference with the farming operations of the lessor, except as required by the mining operations of the lessee, who was made the sole judge of the necessity and extent thereof. It was not a lease of agricultural lands for agricultural purposes, but of mineral lands for mining purposes. The lessee had no right to cultivate the land, for he could simply mine and ship the ore. The pursuit of agriculture was prohibited by the express covenant of the lessee to permit no business to be done upon the premises other than the business of mining.' The evil aimed at by the Constitution is long leases of farming lands for farming purposes, not the leasing of part of a suburban farm for the erection of dwelling houses, stores or manufactories, or of a mine in the bowels of the earth, with the right to bring ore to the surface and ship it. Even if the process of mining necessarily interferes to some extent with the tilling of the soil above the mine, it is merely incidental and does not convert a mine lease into a farm lease." Massachusetts Nat. Bank v. Shinn, (1900) 163 N. Y. 360, 57 N. E. 611, affirming 18 App. Div. 276, 46 N. Y. S. 329.

Division of term.- This section cannot be evaded by cutting a term in excess of the limit prescribed into several successive terms, each in itself within that limit. That rule was enunciated and applied in Clark v. Barnes, (1879) 76 N. Y. 301, 32 Am. Rep. 306, wherein two leases, one for eight and the other for twelve years, the latter to begin at the expiration of the former, were declared void. The court said: "If this had been one lease for twenty years, it would unquestionably have been void. But the claim is that, as neither of these leases is for a longer period than twelve years, the constitution has not been violated. But both leases were executed, in pursuance of a written agreement, at the same time, upon the same consideration, as parts of the same transaction, and were upon precisely the same terms; and they may, therefore, be construed together, as if they were contained in the same instrument. If the leasing had been by one instrument, for these two terms, it would not be disputed that, within the meaning of the constitution, there would have been a lease for twenty years; and the effect is the same, and the construction must be the same, under the circumstances disclosed here, although the agreement is witnessed by two instruments instead of one. Otherwise the whole policy of the constitutional provision could be defeated, by cutting a very long term up into successive short terms, by the use of separate instruments, all executed at the same time.” Extent of invalidity.- A lease of agricultural lands for over twelve years is void in its entirety and is not binding for any period. Clark v. Barnes, (1879) 76 N. Y. 301, 32 Am. Rep. 306.

Validity of life estate. Since a life estate may endure for more than twelve years, life estates in agricultural lands apparently are within the condemnation of this section if accompanied by a reservation of rents or services. The condemnation, however, is but partial and operates only as a limitation on the duration of those estates, their validity being unquestioned for the space of twelve years. Parish v. Rogers, (1897) 20 App. Div. 279. 46 N. Y. S. 1058.

Alienation of Lands

8 14. Restraints on alienation prohibited.

Art. I, §§ 14, 15

All fines, quarter-sales, or other like restraints upon alienation, reserved in any grant of land hereafter to be made shall be void. Const. 1846, Art. I, § 15; continued without change in Const. 1894, Art. I, § 14.

15. Indian land transactions.

No purchase or contract for the sale of lands in this State, made since the fourteenth day of October, one thousand seven hundred and seventy-five; or which may hereafter be made of, or with the Indians, shall be valid unless made under the authority, and with the consent of the Legislature.

Const. 1777, Art. XXXVII; amended, Const. 1821, Art. VII, § 12; amended, Const. 1846, Art. I, § 16; continued without change in Const. 1894, Art. I, § 15. United States policy. This section is in full accord with the policy of the United States government “in prohibiting all private dealings with and purchases from Indians, except under the supervision of public officials and with the consent of the legislature." Seneca Nation of Indians v. Christie (1891) 126 N. Y. 122, 27 N. E. 275.

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Purchase from single Indian.- Under this provision no white person can purchase any right or title to land from any one or more Indians, either individually or collectively, without the authority and consent of the legislature." Goodell v. Jackson, (1832) 20 Johns. 693, 11 Am. Dec. 351. See also Lee v. Glover, (1828) 8 Cow. 189. In Goodell v. Jackson, supra, in reply to the contention that the provisions of this section did not apply to a purchase from a single Indian, the court said: Suppose the constitution had said, no fraudulent purchases from the Indians should be valid, would it not have reached a fraudulent purchase from a single Indian? Suppose it had said that no robberies, or murders should be committed upon the Indians, under pain of death, would it not have applied to a single robbery or murder? We ought to give to the words the sense most suitable to the subject-matter, and construe them large and equitably in favor of the Indians, for whose protection they were intended. If the Oneida sachems, in council, had brought a complaint to us, that a member of their tribe, residing with them, and highly esteemed by them, had been defrauded by one of our people of his bounty lands, which his father had purchased from us by his blood, and they had pointed to our constitution, and asked if the legislature had authorized the purchase; if we answered in the negative, but justified the purchase, on the ground that the constitution spoke of purchases from Indians, and not of a purchase from an Indian, would their untutored minds be able to comprehend the nicety of such a distinction, and the sublety of such an interpretation? Would they not say, or rather would not the world say for them, that we adhered to the letter and disregard the spirit of the constitution; that we acted almost as unreasonably as the Roman general, who concluded a truce with the enemy for thirty days, but ravaged their territory in the night, under the pretense that nights were not within the letter of the compact."

Materiality of residence of Indian.- This section is not confined in terms or spirit "to Indians residing with their tribe." Accordingly, it has been held that the conveyance by an Indian resident in this state of his land by deed to a white person is void, whether he resides at the time with his tribe or not.

Lee v. Glover, (1828) 8 Cow. 1