presumption of a present title which can be repelled by proving a grant from the state, but an absolute rule of political sovereignty, incapable of yielding to any circumstances whatever. 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 thenceforth 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 the fixed and unalterable rules of public law. . 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 not 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 a still higher nature, to which the right of possession and enjoyment becomes annexed on the failure of the inheritance. This is the 'original and ultimate property' spoken of in the Constitution."

In Jackson ex dem. Winthrop v. Ingraham (1809) 4 Johns. 163, the supreme court said it could not "take notice of any title to land not derived from our own government, and verified by a patent under the great seal of the state or the province of New York. Whether claimants to lands within this state, founded on French grants, might not have had an equitable claim on the government under the capitulation of Montreal in 1760, or the treaty of 1763, is a question with which this court has no concern. Such a claim might have been presented and urged to the government, but it does not afford that evidence of legal title which can be recognized by this court. We can look no further than to the titles derived under our own grants. This has been the uniform sense of our courts from the first establishment of the English government in the colony of New York." It appears that by an order of the privy council in England on the 12th of August, 1768, no Canadian claim to lands south of the 45th degree of north latitude was to operate, un

less such claim was consummated and confirmed by a grant under the seal of New York. The colonial assembly declined to recognize these claims, and in 1773 declared them to be “extravagant and destitute of all foundation."

The supreme court in O'Meara v. Allegany (1874) 3 Thomp. & C. 235, said that land in an Indian reservation was embraced in the right of sovereignty as defined by this section; that the state might therefore provide for the construction of a bridge on such reservation, and that the statute authorizing such a bridge was, in effect, an assertion of the right of eminent domain. The decision was reversed in the court of appeals (1874) 59 N. Y. 316, on the construction of the statute, and without considering the Indian titles.

Naturalization under the Federal statutes has no retroactive effect. Heney v. Brooklyn Benev. Soc. (1868) 39 N. Y. 333. Johnston v. Spicer (1887) 107 N. Y. 185, 198, 13 N. E. 753, contains a sketch of the history of legislation relating to escheats.

The courts have had frequent occasion to consider subjects relating to escheats and the rights of aliens, but the cases for the most part involve questions of procedure or evidence and determine the status of persons or property under particular circumstances without special reference to the Constitution. These decisions may be found in the digests, but are not of special interest here.

§ 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. 1, § 12.]

The abolition of feudal tenures, first by statute and then by the Constitution, has been considered in the chapter on the Convention of 1846, in connection with the subject of agricultural leases and other topics relating to real property.

This subject is considered in Tyler v. Heidorn (1866) 46 Barb. 439.

§ 12. [Absolute ownership of estates.]— All lands within this state are declared to be allodial, so that, sub

ject 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. 1, § 13.]

This subject is considered in connection with the work of the Convention of 1846. The rights of riparian owners along the Hudson river are considered in Gould v. Hudson River R. Co. (1852) 6 N. Y. 522, and in Kerr v. West Shore R. Co. (1891) 127 N. Y. 269, 27 N. E. 833.

In People ex rel. Howell v. Jessup (1899) 160 N. Y. 256, 54 N. E. 682, the court had occasion to determine the title acquired by the town of South Hampton under the Andros and Dongan charters, and also the right of a riparian owner on Great South bay.

§ 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. 1, § 14.]

The history of this section will be found in the second volume, in connection with the work of the Convention of 1846.

In Stephens v. Reynolds (1852) 6 N. Y. 454, the court, after a brief statement of the reasons which prompted the Convention of 1846 to include this section in the Constitution, say that 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. By the Constitution there must be a reservation of rent or service. A reservation is defined to be a keeping aside, or providing, as where a man lets or parts with his land but reserves or provides himself a rent out of it for his own livelihood." It was held that a lease which contained a covenant by

the lessor to devise the land to the lessee's wife, a daughter of the lessor, in consideration of which the lessee agreed to furnish the lessor with comfortable support during her life, was not within the constitutional prohibition.

A similar lease was construed with the same result in Parsell v. Stryker (1869) 41 N. Y. 480.

A lease for twelve years, with a continuing covenant to renew at the end of each period of twelve years, was held good as to the first twelve, but void as to the covenant for renewal, the court observing that such a covenant was against the spirit and policy of the constitutional provision. Hart v. Hart (1856) 22 Barb. 606.

In Rutherford v. Graham (1875) 4 Hun, 796, a peculiar contract was held to be a sale of a right of dower, and not a lease within the meaning of the Constitution.

A lease for a longer period than twelve years would not be valid for that period, but the lease itself would be void in toto. An agreement including two leases executed at the same time, one for eight years, and one for a further period of twelve years, making twenty years in all, was declared invalid, the court observing that "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." Clark v. Barnes (1879) 76 N. Y. 301, 32 Am. Rep. 306.

"The character of the land is made, by the Constitution, the test of the validity of the lease, not the purpose for which the lease was made." Accordingly, a lease of agricultural land for the purpose of taking iron ore therefrom, but reserving to the lessor the use of a part of the land for any other purpose, was held invalid. The lessee had the right to use a part of the land for agricultural purposes in addition to its use for mining iron ore. Odell v. Durant, (1875) 62 N. Y. 524.

The same subject was considered in Massachusetts Nat. Bank v. Shinn (1900) 163 N. Y. 360, 57 N. E. 611, construing a lease for the exclusive purpose of mining iron ore, and a lease of twenty years was sustained. The court say that “the purpose is no test of validity, for the lease, whatever its purpose, if it covers agricultural lands, must exclude that use, or it will be void, provided the term exceeds twelve years."

In Witherbee v. Stower (1880) 23 Hun, 27, a similar question was presented involving the construction of a lease for fifty years of 4 acres of land, to be used for the manufacture of coal, and which land was said to be worthless and unfit for any other purpose.

A life lease reserving an annual money rent is valid. It is necessarily for an indefinite period, and may terminate before the expiration of the constitutional limit, but its continuance beyond that time does not make it void. Life estates are not destroyed by this constitutional provision. The term "longer period" should be construed as meaning a definite period, and as not applicable to an estate whose duration is wholly indefinite and uncertain. Parish v. Rogers (1897) 20 App. Div. 279, 46 N. Y. Supp. 1058.

§ 14. [Restraints on alienation prohibited.]—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. 1, § 15.]

An interesting history of this section and the construction of a lease including a provision for quarter-sales may be found in De Peyster v. Michael (1852) 6 N. Y. 467, 57 Am. Dec. 470, which has been cited in a former part of this work in connection with the subject of tenures.

A covenant in a deed, the fee remaining in the grantor, that the grantee should pay to the grantor a specified sum on the sale of prescribed parcels, is not a restriction on alienation. Bennet v. Washington Cemetery (1890) 24 Abb. N. C. 459, 11 N. Y. Supp. 203, citing Bennett v. Culver (1884) 97 N. Y. 250, where the same deed was construed by the court of appeals.

§ 15. [Indian lands.]-No purchase or contract for the sale of lands in this state, made since the fourteenth day of October, one thousand seven hundred and seventyfive, 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. 37; 1821, art. 7, § 12; 1846, art. 1, § 16.]

The Jay amendment. This section has been continued from the Constitution of 1821 without change. The sub