Newcomb and others against Newcomb

Newcomb and others against Newcomb. Under the constitution of 1821 (art. 7, § 10), the legislature was prohibited from authorizing any sale or disposition of the lands owned by the state, which were contiguous to its salt springs and might be necessary or convenient for their use. A person to whom portions of these lands were set apart by the commissioners of the land office, pursuant-to the Revised Statutes (vol. 1 p. 267, § 98), for the purpose of his erecting works thereon for the manufacture of coarse salt, and who entered and made the expenditures and erections for that purpose required by the statute (1 R. S., 267, § 94), has no inheritable estate or interest in the premises Accordingly, where parcels of the Onondaga salt springs reservation were set apart to an individual, pursuant to said statute, and he made expensive erections thereon of a permanent character for the manufacture of coarse salt, and died in possession, intestate; Meld, in an action for partition by his heirs against the widow, who was also his administratrix, that they took no estate or interest in the premises by descent. In 1841, Andrew H. Newcomb, pursuant to the statute (1 R. S., 267, § 91), applied to the commissioners of the land office to have set apart to him, for the purpose of erecting thereon works for the manufacture of coarse salt, parts of lots numbers 118, 121 and 126 of the Onondaga salt springs reservation, situate in the county of Onondaga; and thereupon the commissioners, on the 8th of January, 1842, by a resolution which recited the application, “ set apart to said Newcomb” the parts of the lots applied for, “ for the purpose of erecting thereon buildings and other works for the manufacture of coarse salt, pursuant to the statute in such case made and provided, as of the 21st of May, 1841.” On similar applications the commissioners by resolutions of like tenor, passed in February, 1846, and February, 1850, set apart to Newcomb and other individuals associated with him other parts of the lots above mentioned for the same purpose. They also, by a Resolution of the late last named, set apart to Newcomb a portion of lot number 130J of the same reservation for the like purpose. The fee of all these lands was in the state; they were contiguous to the salt springs owned by it, and were necessary or convenient for their use. Within four years after the passage of these resolutions respectively, Newcomb, and he and his associates, took possession respectively of the land therein mentioned, being in all more than thirty acres; and at a large expense made extensive erections and constructions thereon for the manufacture of coarse salt, within the time and according to the statute. (1 R. S., 267, § 94.) These erections consisted of a storehouse for salt, constructed of heavy timbers, fifty by sixty feet in size, and of over twelve hundred vats, which were usually and in this instance constructed as follows: Spiles or posts were driven firmly into the ground about four feet apart, and upon these flooring was laid and firmly spiked down. This flooring was laid in parallel rows eighteen feet wide and varying in length. Sides were added to the flooring and these were closed at each end making the vat. There were cross pieces from side to side over the vat for sliding roofs to run upon; the vats were about nine inches deep. This structure was firmly grooved together and fastened to the spile foundation. Into "these vats the water from the salt springs was conducted by pump logs placed under ground, and was then evaporated by the heat of the sun. To keep out the rain sliding roofs were made, which, when not covering the vats, rested upon frames erected by the side of the vats. The roofs by means of rollers were moved on and off the vats as occasion required, being in winter usually over them. The vats and their foundation become saturated with the salt water, and decay very slowly. They are not built with a view to being removed, nor can they be without taking them apart when the materials are of trifling value as compared with the original cost of the. vats, or their value for use when erected. Newcomb, and he and his associates, possessed and occupied the land and used these structures' for the manufacture of coarse salt up to the time of his death, which was in October, 1851. He at this time was the sole owner of whatever interest was acquired under the resolutions of the commissioners and by the erections, as to part of the above mentioned premises, and owned three-tenths of the interest in the residue. He died intestate, leaving no children; but he left him surviving brothers and sisters and their descendants, and a widow, Mary B. Newcomb. The widow and one Briggs were appointed administratrix and administrator of his estate, and they took possession of the salt works. Some of the heirs in August, 1852, commenced -this action in the supreme court against the widow and others of the heirs for the partition, with other real estate owned by Newcomb at his decease, of the salt lands and property above mentioned; alleging that he died seized of an estate therein, and that the heirs had an estate of inheritance in, and were tenants in common of the same, and that the widow was entitled to dower therein. The widow answered the complaint, denying that Newcomb at his decease had any estate of inheritance in the salt lands and erections thereon, or that his heirs had any estate whatever therein, and alleging that the lands were the property of the state. The cause was tried at the Onondaga circuit before Mr. Justice Pratt without a jury. On the trial the facts above stated appeared; and thereupon said justice ruled and decided that, under the resolutions of the commissioners of the land office, Newcomb acquired and had at his decease an estate in the said lots covered by the salt vats and erections thereon; and that the parties to the action, except the widow, upon his decease, became seized of the premises as his heirs at law. To which the counsel for the widow excepted. The said justice decided and ordered that the said premises be partitioned among the heirs according to their respective rights as stated in the complaint, subject to the dower of the widow therein. To which the counsel for the widow excepted. A bill of exceptions was tendered on behalf of the widow, and judgment having been perfected according to the decision at the circuit, she appealed. The cause was heard on the appeal at a general term of the supreme court in the 5th district, and the judgment affirmed. The widow appealed to this court. N. Hill, Jr., for the appellant. I. The provision of the Revised Statutes authorizing the resolutions setting apart these lots was enacted in reference to the constitution of 1821, and is to be construed accordingly. (Const. of 1821, art. 7, § 10; 1 R. S., 252, 267, §§ 1, 91, 93; Laws of 1822, p. 173, § 6.) 1. The new constitution only authorizes a sale for the purpose of buying “ other lands alike convenient,” and the resolutions were clearly not intended as an execution of that power. (Const. of 1846, art. 7, § 7; see Sen. Doc,. 1847, No. 108.) 2. Besides, the commissioners of the land office were not empowered by law to act under this provision of the new constitution until 1854, long after the resolutions in question. (Const. of 1846, art. 7, § 7; Laws of 1854, p. 986, et seq.; Sen. Doc., 1847, No. 108.) 3. The statute and resolutions are therefore to be understood as a mere execution of the constitutional policy of 1821; such being the presumed intent. (Fletcher v. Peck, 6 Cranch's R., 128; Comm'th v. Downes, 24 Pick. R., 231, 232; 3 Seld. R., 109, Edmonds, J. II. The legislature was expressly prohibited, by the constitution of 1821, from authorizing the transfer of any estate in the lots in question; much less an' estate of inheritance. (Const. of 1821, art. 7, § 10; Sen. Doc., 1847, No. 108, pp. 8 to 12.) 1. The constitutional provision embraces not only the salt lands but the canals, and the power of the legislature is the same as to both. (Const. of 1821, art. 7, § 10.) 2. The design was to secure to the state the unqualified right of resuming the actual control of these sources of public revenue at any moment, and forever. (Const. of 1821, art. 7, § 10; 1 R. S., 193, §§ 1, 2; 1 R. S., 252, §§ 1, 2, et seq.; 1 R. S., 266, 267, §§ 90 to 100; see statutes cited, point 3, subd. 1.) 3. This could only be done by disabling the legislature from granting any right to hold as against the state, by lease or otherwise. (3 Sen. Doc. 1847, No. 108, pp. 8 to 12.) The grant, if authorized, would operate as a contract, and place the subject beyoud the power of the state. (3 Story’s Const., § 1385, et seq.) And thus the salt lauds not only, but the canals could be irrevocably alienated for any term, however long. (3 Story’s Const., § 1385, et seq.) 4. The intent to impose this measure of disability upon the legislature is clearly expressed by the clause in question, and it should be construed accordingly. (Const. of 1821, art. 7, § 10; 3 Seld. R., 83, 84, Ruggles, Ch. J.; 3 Seld. R., 97 to 99, Johnson, J.; 3 Seld. R., 109, 319, Edmonds, J.; 1 Story’s Const., §§ 427 to 429.) The words, “the legislature shall never sell, or dispose of,” &c., prohibit leases of all kinds, as well as other conveyances. (Hedges v. Riker, 5 Johns. Ch. R., 163; Gordon v. Preston, 1 Watts’ R., 385, 386; Sheffield, &c., 3 Atk. R., 287; Rob. on Wills, 519, n. 3, ed. 1809.) So as to the words, “ shall be and remain the property of the state;” these denoting exclusive, unqualified and perpetual dominion. (Burrill’s Law Dict., "Property;” Bouv. Law Dict., “ Property.” III. The utmost the legislature could do, therefore, was to authorize the giving of mere revocable licenses to erect works and manufacture salt; and this is all that has been attempted. (See point 2, subd. 1 to 4; 1 R. S., 252, 267. §§ 1, 91, 93.) 1. The statute and resolutions contain no apt words for the creation of an estate. To “ set apart” means only to separate from the rest; not to convey or transfer. (Doe v. Wood, 2 Barn. & Ald., 738; Sen. Doc., 1847 No. 108, pp. 8, 9; 1 R. S., 266, 267, §§ 89 to 100; Laws of 1821, p. 236, § 27; ib., 1820, p. 100, § 3; ib., 1818, p. 302, § 1; ib., 1812, p. 505, § 24; ib., 1810, p. 66, § 22.) 2. The words import no more than a revocable license to erect works, manufacture salt, and sell it; the primary object being public revenue. (Const. of 1821, art. 7, § 10; 1 R. S., 193, §§ 1, 2; ib., 252, §§ 1, 2; ib., 256, 257, §§ 90 to 100.) 3. At all events, they do not import the relation of lessor and lessee between the state and the manufacturer; much less the grant of an estate of inheritance. (1 Hilliard’s Abr., 216, 217, ed. 1846; Doe v. Wood, 2 Barn. & Ald., 724; Norway v. Rowe, 19 Ves. R., 144, 158; 24 Eng. Comm. Law R., 136, 138, Littledale, J.; Mountjoy's case, Godb. R., 17.) 4. If they do, they are utterly inconsistent with the constitutional policy which they were designed to execute, and are therefore so far inoperative. (See points 1 and 2, supra; Newell v. The People, 3 Seld. R., 9, 92, 93.) IV. But even if the statute and resolutions amounted to a lease of these lots, it would not aid the plaintiffs ; for they are bound to show that their ancestor was seized of an estate of inheritance. (1 R. S., 722, §§ 1, 5; ib., 751, § 1; ib., 754, § 27; 2 R. S., 317, § 1.) 1. The plaintiffs must show, in order to maintain this species of action, that the subject matter is real estate, and that they became interested in it by descent. (2 R. S., 317, 318, §§ 1, 5; Larkin v. Mann, 2 Paige's R., 27; 8 Johns. R., 562 to 564.) 2. These requisites, moreover, together with the fact that the parties have a common interest in the subject matter, are essential to jurisdiction. (11 Wend. R., 647, 651, 2, Savage, Ch. J.; 8 Cow. R., 361, 366, 367, 369, 370, Woodworth, J.; 1 Carolina Law Journ., 195; Cowen & Hill’s Notes, 995, 996; Witherspoon v. Dunlap, Harp. R., 390; Sweet v. Bussey, 7 Mass. R., 503; Champion v. Spencer, 1 Root’s R., 147.) 3. The suggestion that, though the plaintiffs.acquired no title so far as the state, is concerned, they might still have partition and sale, is anomalous. V. If it be said that these views would result in leaving it optional with the state to appropriate the erections of the manufacturer, without making compensation, we answer: 1. The erections were made with an implied understanding that they might be removed when the manufacturer ceased to use them, and they never became a part of the realty. (Smith v. Benson, 1 Hill’s R., 176, 178; Mott v. Palmer, 1 Comst. R., 564.) 2. But if otherwise, they were annexed to the freehold for the purposes “of trade or manufacture,” and belonged to the personal representatives. (2 R. S., 82, 83, § 6, subd. 4.) 3. If the state was disposed to exercise the power of appropriating them, therefore, it could not do so without making “just compensation.” (Const. of 1821, art. 7. § 7.) 4. But if it could, a claim on its justice would.arise in favor of the manufacturer, and experience shows that the holders of such claims do not suffer. (3 Seld., 93, Ruggles, Ch. J.; ib., 136, 137, Welles, J.; Sen. Doc., 1847, No. 108; Laws of 1854, p. 986, et seq.) George F. Comstock, for the respondents. I. It is only partition of the land which is sought by the terms of the complaint. It is assumed, however, that if a partition of the land is had, the erections go with it; and that is the occasion of the controversy. The nature-of the erections and the mode of their annexation are such that if the intestate, who is admitted to have been the owner of them, had also an inheritable estate in the land, the erections are a part of such estate, and descend with the land to the heirs. The question therefore is: Had the intestate an inheritable estate in the land ? This will depend on the construction and effect of the grant by the state; but in construing and giving effect to the grant, the purposes for which it was made, the character of the erections required for those purposes, and the capital to be invested in them, must exercise an important influence. II. By the Revised Statutes, part 2, chap. 2, p. 751, § 1, it is declared that the real estate of every person shall (if there be no will) descend to his heirs. That the term “real estate” (vide § 27) shall include every estate, interest and right, legal and equitable, in lands, except such as are determined by the death of the person possessed thereof, and except leases for years, and estates for the life of another person. And that the term “ inheritance ” shall be understood to mean “ real estate as herein defined, descended according to the provisions of this chapter.” Under the term “leases for years,” it is presumed that leases from year to year are also to be included. (See 2 R. S., 82, § 6, sub. 1.) This seems to be necessary in order to reconcile the two statutes referred to. Looking, at the question, therefore, under the statute, the inquiries are: 1. Had the intestate in his lifetime any interest in these lands ? 2. If he had, did it depend on his own life—did it depend on the life of another person—was it a mere lease for years or from year to year ? If none of these, it was an estate of inheritance. III. The intestate had an interest in these lands, and a very important one. They were “set apart” to Mm under authority of law by the commissioners of the land office, “for the manufacture of coarse salt.” This amounts to a conveyance or grant for the purpose mentioned; and by virtue thereof, and of a compliance with the conditions of the grant, the intestate acquired a right to occupy the land so long as he used it for that purpose; there being no words of duration or limitation in the grant itself. 1. Construing the grant of the commissioners as a mere permission to use or occupy the land for the purpose of building and carrying on coarse salt manufactories (and this is the véry lowest construction it admits of), it carries an interest in the land, for the reason that the purposes contemplated cannot be effected without the exclusive possession and use of the land. The erections actually cover the soil and exclude all other uses. Call it a mere easement and still it is an interest; and although an easement, still it is or at least may be inheritable. 2. This doctrine is settled in many analogous cases. See Mumford v. Whitney, (15 Wend., 380) a permission to abut a dam on the land of another; Cook v. Stearns (11 Mass., 536), a simillar case; Fentinam v. Smith (4 East, 108), a permission to tunnel through the defendant’s land to convey water to the plaintiff’s well; Hewlins v. Shipman (5 Barnwell & Cress., 210), Bryan v. Whistler (8 id., 288), an agreement for the exclusive use of a burying vault; Cocker v. Cowper (1 Cr. Mees. & Ros., 418), Bird v. Higginson (4 Nev. & Man., 505), Miller v. The Auburn & R. R. Co. (6 Hill, 61), a permission to build a railroad. In these and other cases the grant, although by parol, was sought to be upheld by miscalling it a license, which is good although not in writing. But it was held void, even although executed, on the ground that it called for an inte rest in land. 3. In other and inconsistent cases the grant or permission has been valid and irrevocable, although not in writing, on the ground that it was executed, i. e., the grantee had done the acts contemplated, and incurred ex pense on the faith of the license or grant. See Liggins v. Inge (7 Bing., 682), which was a permission to erect a weir; Wood v. Lake (Sayre, 3), a license to stack coal on another’s land for seven years; Winter v. Brockwell (8 East, 108), a license to erect a skylight; Pierpont v. Barnard (2 Selden, 279), a license to cut timber. 4. But both of these classes of cases are equally to the present purpose. In the one class the direct point adjudicated is, that an interest in land is created, requiring that the grant, license or permission be in writing. In the present case it is in writing. In the other class the grant was upheld because it had been executed. For example, in Liggins v. Inge (7 Bing., 682), it was held that the party having executed the license to build a weir, and thus incurred expense, might continue it forever. In the present case the grant, or whatever be its name, has been executed, and $30,000 expended on the faith of it. 5. In all the cases of the kind referred to, the interest conveyed or attempted to be conveyed is assumed to be a permanent one, irrevocable in its nature; and no one will doubt that it would descend to the heirs of tha grantee. Take, for example, the license to abut the dam, in 15 Wend. That was regarded as passing (if it had been valid) a durable estate or interest, an estate to last so long as the land was used for the purpose indicated and undoubtedly descendible. 6. In the present case, the acts contemplated by the license call for a much more palpable interest in the land than in those referred to. Here the land was to be literally covered with structures firmly imbedded in the soil, of an expensive character, permanent in their nature j and the permanence of which must have been of course contemplated by the legislature which authorized and the commissioners who made the grant. It follows, unless rules are to be applied unknown in all analogous cases, that the interest vested by virtue of the grant and the performance of its conditions, or by the license (if we so call it) and the execution thereof, is irrevocable so long as the erections remain on the land and are used for the “ manufacture of coarse salt.” 7. There are other established principles of law which produce the same result. If a private person, or the state, or any authorized board should by any form of words grant land for a church edifice, no one would doubt that an estate would vest on performance of the condition (if not before), and would be defeasible only when the land should cease to be used for that purpose. The continued use for that purpose would be a condition subsequent, or a conditional .limitation, so that the estate would revert or run out when it ceased to be so used. This makes a qualified or determinable fee. (5 Pick., 528; 2 Bl. Comm., 109, Plowden, 557; 4 Kent Comm., 8, 9.) The same observations and the same rule will hold in the familiar cases of grants or dedications, by the state or by individuals, of land for a school-house, a court-house, a public square, a highway, or a railroad. IV. If the interest, by whatever name we call it, derived under the grants in question is not of the durable character we claim for it, the only other alternative is that it is held at the mere will and pleasure of the grantors, the state. There is no intermediate ground. But this cannot be the construction and effect of the grant. 1. This construction is in violation of all established rules in similar cases. No other case can be found where such a rule has ever been claimed, the grant being in writing, so as to raise no question of its validity under the statute of frauds. 2. The grant itself is nugatory without the investment of a large amount of capital, in permanent structures on the land, incapable of removal. This, of course, was in the contemplation of the parties; and it must be deemed, therefore, that they had in view and intended a permanent occupation. 3. This view of the case is somewhat fortified, when we consider that if the state should at any time annul the grant there is no obligation to pay the injured party the value of his erections or to compensate him for his damages. The constitutional injunction against taking private property would not reach the case, for upon the theory in question the interest of the grantee is held merely at the will of the state, and therefore expires when that will is exercised. There would therefore be nothing to compensate. 4. It is said the state might probably do justice in such a case, but this consideration cannot alter the rule. Again, these grants invite and the grantees contemplate a particular investment and enjoyment of their capital. And there is no justice in taking away the specific investment and substituting in its place a mere equitable claim on the legislature for damages, even if it be assumed that the legislature would entertain the claim. 5. This construction reduces the grant to a mere technical license, passing no interest in the land, good by parol, revocable at pleasure, unassignable and personal, to the grantee. Such cannot be the case. See cases, supra. V. But under any of the constructions considered, the interest of the decedent was inheritable. It clearly was not an interest depending on his own life or the life of another person. Unless, therefore, it was a lease for years or from year to year, it was an inheritable estate, both by statute and at the common law. It was not such a lease, nor a lease at all. 1. It is not a lease for years. Such a lease creates a term having a definite period prescribed in the instrument itself. It may be for many years, or less than a year; the single and uniform characteristic being that the term has a definite commencement and close. 2. It is not a lease from year to year. This is a mere enlargement of a tenancy at will, for the purpose of notice to quit. This tenancy arises by implication from the payment or reservation of an annual rent, where the term is otherwise uncertain. 3. The instrument is not a lease at all, and does not establish the relation of landlord and tenant. There is no rent reserved, and this is the distinguishing characteristic of a lease. There is no pretence for saying that the salt duty is rent for the use of the lands. This is payable in all cases, as well when salt is made on private lands as on lands of the state. (1 R. S., 252.) It is simply a compensation for the brine, which belongs to the state. And not only is there no rent, but there are no words in the grant or in the statute which import a lease. Again, the whole scheme of legislation in regard to the salt manufacture demonstrates that the legislature did not intend these grants as leases. More than nine-tenths of the salt made from these springs is made in blocks, by boiling in kettles. The superintendent is directed by law to execute technical leases of all such blocks, and minute directions are given (2 R. S., 257, 258.) But in regard to the manufacture by solar evaporation, the case is entirely different. The superintendent has no power to lease the land. It is to be “ set apart” by the commissioners of the land office. The structures are more durable and permanent. The investment must be at least twenty times as large, in order to make the same amount of salt, and more than fifty times the amount of land is required. If the legislature had intended to lease these lands, also, it would not have established a policy and provided for grants so totally different. (See 7 Barbour, 599, 619, 620.) 3. The interest of the intestate was therefore inheritable, not being a lease for years, a lease from year to year, or a lease at all. If we regard the grant as conveying a qualified fee, defeasible on breach of the condition, or running out when the land ceased to be used for the purpose specified, this is clearly inheritable. So it is if we call it a continuing license (as in 7 Barbour, supra), or an easement or privilege. And so it is if we grant that the state may at any time enter and take possession. The interest of a mere disseizor or squatter will go to his heirs, and not to his personal representatives. VI. There is no constitutional difficulty in the way of this inheritance. (See Const. of 1846, art. 7, § 7.) It is admitted that this provision impliedly prohibits a sale or alienation of the land except for the special purpose named, that is, to invest the proceeds in other lands “ alike convenient” for the use of the salt springs. 1. The obvious policy of the constitution is to preserve these lands for the “use of the salt springs.” Indeed, so are the express words. Any disposition, therefore, of the lands which does not violate this policy does not violate the constitution. 2. But the state itself has never, under any of the state constitutions, embarked for itself in the business of boiling or evaporating salt. On the contrary, its policy from the earliest period has been to lease and set apart the lands to individuals, confining the use of the lands to that object, and raising a revenue by a duty on the salt. 3. In pursuance of this policy, the legislature has authorized the superintendent to lease lands for the manufacture of salt in one mode, and the commissioners of the land office to set them 0 apart for the manufacture in another mode. Neither violates, but each promotes the objects of the constitution ; and yet in each case there is a limited alienation of the lands. 4. If it is competent to “ set apart’’ the lands at all (and this is not denied), it may be done constitutionally for one year or a hundred years, or for an indefinite period, so long as used for the purposes contemplated by the constitution. In short, the validity of the grant under the constitution depends on its purpose, and not on its duration. 5. The grant in question, therefore, calls for no estate or interest in the grantee which violates the constitution. No fee simple of course is claimed. Nor is any smaller estate claimed, which permits the grantee for a single day to divert the lands from the constitutional uses. The estate is inheritable as a fee, qualified by the very purposes which the constitution contemplates, as a continuing executed license, as an easement, or even as held at the mere will and pleasure of the state. Yet none of these constructions violate the constitution. [MAJORITY — Crippen, J. Gardiner, Ch. J.] Crippen, J. It is claimed on the part of the heirs of Andrew H. Newcomb, deceased, that he had an interest in lots number 118, 121, 126 and 130½ of the Onondaga salt springs reservation, which descended to them on his death. On the part of the widow of the deceased, it is insisted that the interest of the decedent in said lots, and in the erections thereon, was personal property, subject to distribution as such under the statute. This presents the question raised on this appeal. The statute provides that whenever several persons shall hold and be in possession of any lands, tenements or hereditaments as joint tenants or as tenants in common, in which one or more of them shall have an estate of inheritance,, or for life or lives, or for years, any one or more of them, being of full age, may apply for partition and division of such premises. (2 R. S., 317, § 1.) The question arises whether the parties to this action or any of them have an estate of inheritance, or for life or lives, or for years, in the above mentioned lots. The constitution in force, and under which the decedent acquired permission to enter upon these lots, declared that the legislature should “ never sell or dispose of the salt springs belonging to the state, nor the lands contiguous thereto which might be necessary or convenient for their use, but the same should be .and remain the property of this state.” (Const. of 1821, art. 7, § 10.) The constitution of 1846 made a change in the fundamental law relating to the lands of the state contiguous to the salt springs. Section 7 of art. 7 declares that the legislature shall never sell or dispose of the salt springs belonging to the state. That the lands contiguous thereto, and which might be necessary and convenient for the use of the salt springs, may be sold by authority of law and under the direction of the commissioners of the land office for the purpose therein specified. The permission however, to occupy the lands in question was not acquired under any law passed since the constitution of 3846 was adopted. The legislature, in addition to the provisions of the constitution of 1821, enacted that the salt springs belonging to the state and the lands contiguous thereto, necessary or convenient to their use, should be and remain the property of the state, and that the legislature could never sell or dispose of the same or any part thereof. (1 R. S., 252, §. 1.) This statute was in force in 1850, when the decedent acquired from the state permission to make erections on lot number 130½ for the manufacture of coarse salt. The statute relating to the salt springs malies provision that any individual, or company incorporated pursuant to § 90 of said act, intending to erect works for the manufacturing of coarse salt, before erecting any works on the lands of the state set a’part for that purpose, shall make application to the commissioners of the land office, setting forth therein the amount of capital intended to be invested in such manufactory, and the quantity of land necessary to the erection thereof; the commissioners of the land office are then required to set apart such land, or so much as they may deem reasonable for the purpose, in a compact form. Such individual or company is allowed four years in which to complete the works on the lands thus set apart; and is also required within one year to commence such work and actually expend thereon at least one-tenth part of the capital specified in the application, or such location will become void, and the land thereafter be liable to be located by any other individual or company. Any part of such location which at the end of four years shall not be actually occupied by manufactories of coarse salt, pursuant to the original location, may be again set apart by the commissioners of the land office to any other person or company for the erection of such manufactories. (1 R. S., 267, §§ 90, 91, 92, 93, 94, 95.) It is admitted, and indeed the whole case shows, that the right of the decedent to make the erections on the state lands for the manufacturing of coarse salt, was acquired in pursuance of the foregoing provisions of the Revised Statutes. Did the decedent acquire thereby an estate of inheritance, or for life or lives, or for years, in said premises ? I think not. The object of the constitution, as well as the whole course of legislation, very clearly establishes a settled design to secure and protect the state in the unqualified right, at all times, of resuming the actual control and disposition of the salt springs and the lands contiguous thereto. The state could make no grant of the property; the constitution and the laws had declared that the salt springs and the lands contiguous thereto, which might be convenient for their use, should be and remain the property of the state. No act of the legislature, or of the commissioners of the land office, could in the least degree, transfer or otherwise impair the title of the state ; it must vest there and nowhere else. This being so, it necessarily follows that none of the parties to this action can have an estate of inheritance, or for life or lives, or for years in the lots above mentioned. The legislature, under the provisions of the constitution, authorized the commissioners of the land office to set apart so much of the state lands as they might deem reasonable for the purpose of an individual or a corporation for the erection thereon of manufactories of coarse salt. No title to the land was transferred thereby, for the obvious reason that the constitution had forbidden it. Nothing could pass, therefore, to the person or company obtaining the right of erecting salt manufactories, except a naked license to enter upon the state lands and make and enjoy such erections during the pleasure of the state. In the opinion of Mr. Justice Paige, delivered in this court in the case of Parmelee v. The Oswego and Syracuse Railroad Company, he remarked that where a party makes a location on any part of the salt springs reservation, erects his buildings for the manufacture of coarse salt within the time prescribed by statute, he acquires no legal interest or estate in the lands covered by the works, and has only an equitable interest in his erections. (2 Seld., 81.) I can see no good reason why the erections made on the lots in question by the decedent, and perhaps the .license to occupy the same for the manufacture of salt, may not be regarded as having been made and held for the purposes of trade and manufacture, and consequently pass to his personal representatives. In conclusion, I am satisfied that neither of the parties has such an estate in the lots above mentioned as will authorize a partition thereof. The judgments of the general and special terms should be reversed, and the complaint as to these lands dismissed, with costs to the defendant, Mary D. Newcomb. Gardiner, Ch. J. The sole question in this case is, whether Andrew H. Newcomb, who died intestate, had an estate or interest in the land in controversy which descended to his heirs at law. The premises constitute a part of the Onondaga salt springs reservation, and were “set apart” by the commissioners of the land office under the statute (1 R. S., 267, 93) enacted prior to the adoption of the constitution of 1846. The 10th sec. of art. 7. of the constitution of 1821, anion" other things, declares that the legislature “ shall never sell or dispose of the salt springs, or the lands contiguous thereto which may be necessary or convenient for their use, nor the navigable communications or any part or section thereof; but the same shall be and remain the property of this state.” By this provision the legislature is prohibited, not merely from alienating the lands in fee, but from making any sale of them whether conditional or absolute; and to make the prohibition more emphatic, they are forbidden “to dispose of them.” This word, in the sense in which it is used in this connection, means “to part with to another,” “to put into another’s power and control,” “ to give away or transfer by authority.” The framers of the constitution did not intend to forbid any particular species of alienation. The language of that instrument is not that the legislature should transfer these lands by grant, by license irrevocable, or upon condition subsequent; but that they sb ould not dispose of them in any manner; “ but the same shall be and remain the property of this state.” If, then, by the setting apart by the commissioners of the land office under the act of 1821, the decedent acquired an estate of inheritance, what he received the state must have parted with, and, to that extent, by legislative enactment disposed of the lands reserved, and they consequently thus far'ceased “to be and remain the property of this state.” I agree fully with the counsel for the respondent, and with the learned judge who delivered the opinion of the supreme court, that the writing under which this claim is made is not a lease, and with the former, that if the interest, by whatever name it may be called, is not of the durable character claimed for it by the respondent, the only other alternative is, that it is held at the mere will and pleasure of the state. The language of the 93d sec. (1 R. S., 267) is exceedingly guarded; it confers no right upon The commissioners to bargain with the applicants. The latter are to locate the lands, and the commissioners are to set so much of them as they shall deem reasonable for the purpose of such individual or company, apart, as such individual or company may select. There are no words pertaining to a grant of any interest whatever. It is a mere designation of the boundaries, including the whole or a part of the premises previously located by the manufacturer. It is true, that as a consequence of this location, certain things are to be performed by the applicant; but their performance does not increase his interest in the land, but is a condition upon which the location and setting apart are made to depend. There would be no impossibility in a tenant at will, in the strictest sense of the term, contracting to make permanent improvements upon the premises upon which he "was about to enter, as the only condition upon which he could retain the interest, slight as it was, which he was to receive. The landlord might terminate the tenancy before, or when the improvements were made; he might not for fifty years, and the possibility would be worthless, or valuable, according to the character of the lessor for justice, fair dealing and liberality. Whether he sustained this character or the reverse of it would not, however, make the slightest difference in the legal rights of the tenant. A similar arrangement was made with the decedent as the result of the action of the commissioners under the law and the constitution. The commissioners set apart, for the purposes of the decedent, lands by him selected. The “ location,” in the language of the statute, was to be void, if a certain sum was not expended within one year, and the land might “ be located by any other individual or company.” (1 R. S., 267, § 94.) There was nothing in the “ setting apart,” or in the condition, to create an estate of any description. The words of the statute, so far from being usual or appropriate for that purpose, are obviously adopted to exclude any such conclusion. It is not said that the estate or right of possession for a definite or indefinite period shall be void, but the location.” The naked occupancy shall, at all events, without any act upon the part of the state or its agents, absolutely cease, and the lands be deemed vacant if this condition is not complied with. If the condition is fulfilled, the setting apart shall secure the manufacturer against the location of the same premises by any other person, and his occupancy may continue for the specific purpose of manufacturing coarse salt until the state otherwise determines. In effect, the legislature say, we have no authority to sell or dispose of these lands; but they are now, and must remain the property of the state. All this is either expressly declared in the constitution, the law, and the written instrument of the commissioners, or necessarily implied from their various provisions. The decedent was bound to know that lie could acquire no property in these lands, for the legislature could grant none. His heirs at law took none by descent. There is nothing, therefore, to partition, and the complaint as to these lands should have been dismissed. The judgment of the supreme court should be reversed and the complaint as to these lands, dismissed. Judgment reversed.