Sidebilder
PDF
ePub

in their natural sense to import an immediate transfer of title, although subsequent proceedings may be required to give precision thereto and attach it to specific tracts, p. 62.

Cited and applied in Deseret Salt Co. v. Tarpey, 142 U. S. 248, 85 L. 1001, 12 S. Ct. 161, following principal case in construing similar statute and holding grantee may maintain ejectment; Northern Pacific v. Majors, 5 Mont. 141, 145, 2 Pac. 335, 337, construing act of July 2, 1864, and holding its words of present grant unqualified; State v. Sioux City, etc., R. R., 7 Neb. 372, holding State grant, to aid railroads, one in præsenti; Eastern, etc., R. R. v. Central R. R. Co., 52 N. J. L. 274, 19 Atl. 725, holding State grant of tide lands to city, subject to improvement, one in præsenti.

Cited, but application denied, in Heydenfeldt v. Daney Gold, etc., Co., 93 U. S. 639, 23 L. 996, where words of qualification restricted those of present grant; United States v. Childers, 8 Sawy. 173, 175, 12 Fed. 587, 589, holding provision for conveyance, as sections of road were completed, qualified words of present grant (act July 2, 1864). Distinguished in Hall v. Russell, 101 U. S. 509, 25 L. 832, holding grant to " qualified settler," did not vest until qualification was completed.

Statutes. Rule that private present grant of undesignated land is a mere contract to convey, does not apply to legislative grants which operate as laws as well as transfers, and have such force as legislative intent requires, p. 62.

Cited and applied in Winona, etc., R. R. v. County of Deuel, 3 Dak. 22, 12 N. W. 567, construing statute granting to railroad immunity from taxation and other privileges previously purchased by State under foreclosure; Jackson, etc., R. R. v. Davison, 65 Mich. 430, 32 N. W. 733, holding grant must be so construed as to best effect legislative intent, irrespective of common-law construction; Nash v. Sullivan, 29 Minn. 214, 12 N. W. 702, holding grant not subject to rules of conveyance regarding warranties; Wardwell v. Paige, 9 Or. 521, construing grant to State for benefit of locators (September 4, 1841).

Public lands.- Provision in an act granting lands for aiding railroads, subject to qualified legislative disposal, that all lands remaining unsold after ten years shall revert to United States if road be not then completed, is a provision that grant shall be void on breach of condition subsequent, p. 62.

Cited in Bybee v. Oregon & Cal. R. R., 139 U. S. 676, 35 L. 307, 11 S. Ct. 643, holding such provision does not ipso facto work forfeiture on failure of completion.

Cited, but not applied, in Manuel v. Wulff, 152 U. S. 510, 38 L. 534, 14 S. Ct. 653, holding qualification of plaintiff's grantee, not a condition subsequent.

Estates. No one but grantor or his heirs or successors can take advantage of non-performance of condition subsequent annexed to estate in fee, and if they do not enforce forfeiture, title remains in grantee, p. 63.

Cited and principle applied in Grinnell v. Railroad Co., 103 U. S. 744, 26 L. 458, holding settler on railroad lands cannot set up breach of condition by grantee, government not having acted; Van Wyck v. Knevals, 106 U. S. 369, 27 L. 204, 1 S. Ct. 340, holding stranger cannot set up grantee's breach of condition to strengthen his own claim; Bybee v. Oregon, etc., R. R., 139 U. S. 674, 675, 679, 35 L. 307, 309, 11 S. Ct. 642, 643, 644, affirming S. C., 11 Sawy. 483, 484, 26 Fed. 588, 589, holding breach of condition cannot be asserted by stranger entering lands; Wallamet Falls Co. v. Kittridge, 5 Sawy. 47, F. C. 17,105, holding only sovereign can take advantage of corporation's non-compliance with conditions subsequent of its creation; Southern Pacific R. R. v. Orton, 6 Sawy. 182, 183, 32 Fed. 471, holding trespasser cannot question power of corporation to take under grant; Hughes v. Northern Pacific Ry., 9 Sawy. 329, 18 Fed. 118, denying right of stranger to take advantage of grantee's breach of condition; Denny v. Dodson, 13 Sawy. 81, 32 Fed. 908, holding breach by grantee no defense in ejectment against trespasser; Knevals v. Hyde, 5 Dill 472, F. C. 7,878, and Ex parte Cole, 1 McCrary, 405, 6 Fed. 654, both holding subsequent patentee cannot take advantage of prior grantee's breach of condition subsequent; O'Rourke v. Central City Soap Co., 26 Fed. 579, holding one suing for infringement of trademark, must recover on strength of his own title, not defendant's lack thereof; Parker v. New Orleans, etc., R. R., 33 Fed. 700, denying right of grantee's assignee to question grantee's title after breach; United States v. Wallamet Falls Co., 14 Sawy. 488, 42 Fed. 357, 44 Fed. 240, holding only grantor can avail himself of grantee's breach of condition subsequent; Northern Pacific v. Cannon, 46 Fed. 239, holding compliance of grantee with condition subsequent, not determinable in action between grantee and stranger; United States v. Tennessee, etc., R. R., 71 Fed. 73, holding sale by grantee of public land, after breach of condition subsequent, but prior to declaration of forfeiture, valid; United States v. Loughrey, 71 Fed. 923, 34 U. S. App. 575, denying right of action of government for timber cut on public land after grantee's breach, but prior to declaration of forfeiture; Skipwith v. Martin, 50 Ark. 150, 6 S. W. 516, holding conveyance on condition subsequent that jail be built, defeasible only by grantor; Orr v. State, 56 Ark. 110, 19 S. W. 320, holding only State can avail itself of non-performance of payment for school lands; Chicago, etc., R. R. v. Grinnell, 51 Iowa, 485, 1 N. W. 720, holding defendant in action for possession cannot set up grantee's non-compliance with conditions; State v. Torinus, 26 Minn. 6, 37 Am. Rep. 397, 49 N. W. 260, holding maker of note, for purchase

of logs cut from lands granted to State, cannot set up grantee's breach of conditions subsequent; American Dock Co. v. Trustees of Public Schools, 39 N. J. Eq. 418, holding only State can raise question of its grantees' compliance with conditions subsequent; Towle v. Remsen, 70 N. Y. 312, 314, holding only grantor can avail himself of breach of conditions subsequent, and right of re-entry does not pass by conveyance by him; Upington v. Corrigan, 151 N. Y. 153, 45 N. E. 362, 37 L. R. A. 798, holding right of re-entry for breach of condition subsequent, not devisable or descendible, but goes to representatives; Walker Branch v. Directors of Wesleyan Cemetery Assn., 11 Ohio C. C. 190, holding possibility of reverter for breach of condition subsequent, not transferable; Gorman Mining Co. v. Alexander, 2 S. Dak. 565, 51 N. W. 348, upholding title of alien to mining claim, as against everyone but United States. Cited, arguendo, in Hopkins v. Grimshaw, 165 U. S. 348, 41 L. 741, 17 S. Ct. 403; also Town of La Pointe v. Town of Ashland, 47 Wis. 260, 2 N. W. 313. Cited in dissenting opinion in Washington, etc., Co. v. Cœur d'Alene Ry., 2 Idaho, 553, 21 Pac. 565, citing principal case generally, majority not passing upon point; Tibbitts v. Ah Tong, 4 Mont. 550, 2 Pac. 768, holding only State can question right of alien to locate mining claim, majority holding such location void against subsequent citizen locator. Cited in 44 Am. Dec. 758, 759, note, on this point, and 77 Am. Dec. 711, note.

Distinguished in State v. Emmert, 19 Kan. 550, where payment of interest on price of school lands was a condition precedent; Reichenbach v. Washington, etc., R. R., 10 Wash. 360, 38 Pac. 1127, holding rule does not apply to easements and sustaining action to declare forfeiture for breach of condition subsequent, brought by grantor's assignee.

Estates. Reserved right of grantor of private grant for breach of condition subsequent, must be asserted by entry or its equivalent, p. 63.

Cited in St. Paul's Church v. Attorney-General, 164 Mass. 198, 41 N. E. 235, no application; St. Joseph, etc., R. R. v. St. Louis, etc., Ry., 135 Mo. 192, 36 S. W. 606, 33 L. R. A. 613, holding right of entry for condition broken, not an estate in lands or a possibility of reverter, but a chose in action.

Estates. Reserved right of grantor of public grant for breach of condition subsequent, must be asserted by judicial proceedings, equivalent to common-law inquest of office, or by legislative assertion of ownership, without which title remains in grantee, p. 64.

Following are the citing cases which rely upon this holding: Farnsworth v. Minnesota, etc., R. R., 92 U. S. 67, 23 L. 535, holding forfeiture under similar statute, may be declared by legislature; McMicken v. United States, 97 U. S. 218, 24 L. 952, holding right of re-entry for condition broken, sufficiently asserted by placing lands

on sale; United States v. Southern, etc., R. R., 146 U. S. 594, 36 L. 1097, 13 S. Ct. 155, holding grantee's title good until government asserted forfeiture; Lake Superior, etc., Co. v. Cunningham, 155 U. S. 372, 39 L. 189, 15 S. Ct. 110, affirming S. C., 44 Fed. 822, a similar case; Atlantic, etc., R. R. v. Mingus, 165 U. S. 433, 41 L. 778, 17 S. Ct. 353, holding forfeiture sufficiently asserted by reservation of land for Indians subsequent to breach; New York Indians v. United States, 170 U. S. 25, 42 L. 986, 18 S. Ct. 537, holding government never asserted forfeiture of Kansas grants to New York Indians; St. Paul, etc., Ry. v. Greenhalgh, 26 Fed. 567, holding act opening land to settlement, sufficient assertion of forfeiture; Farmers' Loan, etc., Co. v. Chicago, etc., Ry., 39 Fed. 149, overruled, see Angle v. Chicago, etc., Ry., 151 U. S. 27, 36, holding grant to another subsequent to grantee's breach, sufficient assertion of forfeiture; Steele v. Walker, 115 Ala. 490, 67 Am. St. Rep. 65, 21 So. 944, holding Federal receiver in charge of forfeited property not liable in trespass to party claiming ownership; Sioux City, etc., R. R. v. Country. man, 83 Iowa, 181, 49 N. W. 75, holding resumption of lands or breach, properly exercised by relinquishment of same by State tc United States; Vicksburg, etc., R. R. v. Sledge, 41 La. Ann. 902, 6 So. 727, and Mower v. Kemp, 42 La. Ann. 1017, 8 So. 832, both holding State, as trustee, can declare forfeiture unless estopped by her own act; Green v. Irving, 34 Miss. 464, 28 Am. Rep. 371, holding sale by holder of paramount title sufficient assertion there for possessors under lesser titles to abandon as upon eviction, suing their covenantors; Northern Pacific R. R. v. Majors, 5 Mont. 136, 137, 2 Fac. 332, holding only grantor can raise question of grantee's forfeiture for breach of condition subsequent; State v. Sioux City, etc., R. R., 7 Neb. 372, holding suit to quiet title not proper method of asserting forfeiture; Southern Pacific v. Esquibel, 4 N. Mex. 343, 5 N. Mex. 141, 20 Pac. 115, holding defaulting railroad will not be heard to complain that forfeiture of grant was not proper measure to secure completion of road; De Lancey v. Piepgras, 138 N. Y. 40, 33 N. E. 825, holding legislative purpose to enforce forfeiture clearly manifested by act authorizing advertisement and sale; Wisconsin, etc., R. R. v. Price Co., 64 Wis. 587, 26 N. W. 96, holding failure of company to complete railroad, does not work forfeiture in absence of congressional action; Iron Mountain R. R. v. Memphis, 96 Fed. 126, city ordinance unlawfully declaring forfeiture of street franchise, is sufficient threat to justify injunction; dissenting opinion in Green v. Irving, 54 Miss. 467, holding action for breach of warranty, rests on different grounds from action for breach of condition subsequent, majority holding supra. Cited in 44 Am. Dec. 756, note in point.

Cited generally in Sexton v. Chicago Storage Co., 129 Ill. 332, 10 Am. St. Rep. 280, 21 N. E. 922, holding right of entry on breach of condition subsequent, a chose in action, not a reversion nor an es

tate; Neer v. Williams, 27 Kan. 67, holding State patent to lands declared forfeited by Congress, void.

Cited, but not applied, in Jackson, etc., R. R. v. Davison, 65 Mich. 432, 32 N. W. 734, not passing upon question of forfeiture. Distinguished in United States v. Northern, etc., R. Co., 95 Fed. 879. doubting whether, under charter of defendant, court has jurisdiction to hear application for forfeiture. Qualified in United States v. Willamette Valley Road Co., 55 Fed. 718, holding government cannot declare forfeiture after allowing company to proceed to completion of road after time limited; St. Louis, etc., R. R. v. McGee, 115 U. S. 474, 29 L. 448, 6 S. Ct. 125, holding legislative assertion of ownership must be clear and positive; Minneapolis, etc., R. R. v. Duluth, etc., R. R., 45 Minn. 106, 47 N. W. 465, holding grantor allowing grantee after breach, but before declaration of forfeiture, to proceed to completion, cannot afterward declare same.

Property. Standing timber constitutes part of realty, p. 64.

Cited in McDodrill v. Pardee, etc., Lumber Co., 40 W. Va. 578, 21 S. E. 883, holding tenant of wooded land, let for farming, may cut timber to clear land.

Logs and logging.— Timber when cut becomes personal property, p. 64.

Cited and applied in United States v. Loughrey, 172 U. S. 211, 216, 217, 19 S. Ct. 155, 157, holding timber cut before forfeiture and reversion to government does not revert with land; Webb v. Phillips, 80 Fed. 956, 54 U. S. App. 59, holding timber cut from land becomes personal property, title remaining in landowner; Ford v. Sutherlin, 2 Mont. 443, mortgage of grain now standing," does not include cut grain, as against subsequent attachment.

66

Logs and logging. All remedies afforded by law in case of conversion of other personal property are open to State for recovery of timber cut and taken from its lands, p. 64.

Cited and applied in Northern, etc., R. R. v. Lewis, 162 U. S. 374, 40 L. 1006, 16 S. Ct. 833, holding cutter of government timber can maintain no action against stranger for destruction thereof; Stone v. United States, 167 U. S. 182, 42 L. 129, 17 S. Ct. 780, holding prior criminal prosecution no defense to civil action for cutting government timber, which may be brought wherever defendant is found; United States v. Steenerson, 50 Fed. 506, 4 U. S. App. 332, holding title of land from which logs were cut may be determined in replevin.

Cited, but application denied, in Sullivan v. Schultz, 22 Mont. 544, 57 Pac. 280, where plaintiff attempted to avoid contract to purchase tombstone, on ground that it was cut from public land.

Replevin.- By law of Minnesota, owner of logs cut from State lands and indistinguishably mingled with other logs, is entitled to replevy from whole mass an amount equal to those cut, p. 64.

« ForrigeFortsett »