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building of the ditch; in other words, by the surrender of possession under the deed, and a repudiation of the entire transaction, when it is admitted that the defendant could set up its" prior title and proceed against" the plaintiff as a trespasser. But this would be a useless and expensive formality, and we think the rule that forbids a tenant from disputing his landlord's title without first surrendering his possession has no application to a case like this. It may be said in general that the doctrine of estoppel exists only where there is an obligation to restore the possession of the land upon certain contingencies; such, for instance, as exist between landlord and tenant, or mortgagor and mortgagee. In such cases the occupant is considered to have pledged his faith to return the possession of the land which he occupies, and will not be permitted to do anything to impair the title of him from whom he has received it. 3 Washb. Real Prop. 98; Gardner v. Greene, 5 R. I. 104; Osterhout . Shoemaker, 3 Hill, 513.

In this case the defendant not only did not agree to resurrender possession to the plaintiff, but it accepted the deed with this covenant or condition, for which it received no consideration, and we do not consider it a breach of good faith upon the part of the defendant to set up this fact; nor ought it to be put in a worse position by having accepted this deed, and paid $250 therefor, than it would have occupied had it refused altogether to treat with the plaintiff. The deed was evidently delivered and received by these parties under a misapprehension of their legal rights, and it would be manifestly unjust to hold the defendant forever estopped from asserting the invalidity of the covenant into which it had inadvertently entered.

The judgment of the court below must be affirmed.

Forfeiture of Land Crant by Failure of Company to Complete Road.-See Southern Pac. R. Co. v. Esquibel (N. M.), 36 Am. & Eng. R. Cas. 410; St. Louis, etc., R. Co. v. McGee (U.S.), 26 Id. 525, note 531; Bybee v. Oregon, etc., R. Co. (C. C.), 24 Id. 127; Neer v. Williams (Kan.), 10 Id. 561; Grinnell v. Chicago, etc., R. Co. (U. S.), 5 Id. 447; Van Wyck v. Knevals (U. S.), 10 Id. 664.

Forfeiture of Grant-Effect of Confirmation of Title of Intervening Claimants. Act Cong. March 2, 1889, declaring a forfeiture of certain lands theretofore granted to the state of Michigan, in aid of certain railroads, provides, in section 2, that "this act shall not be construed to prejudice any right of the Portage Lake Canal Co. *** to apply hereafter to the courts or to congress for any relief, legal or equitable, to which they may now be entitled." Held, that this special provision for the claims of the canal company excludes it from the benefit of the general provisions of section 3, which confirms the titles of all persons to whom any of such lands have been disposed of under color of the public land laws, where the government retains the consideration. Lake Superior Ship Canal R. & Iron Co. v. Cunningham, 44 Fed. Rep. 587.

MINNEAPOLIS & ST. CROIX R. CO.

ย.

DULUTH & WINIPEG R. Co., (DULUTH & IRON RANGE R. Co., Intervenor.)

(Minnesota Supreme Court, Dec. 17, 1890.)

Grant of Swamp Lands-Forfeiture-Breach of Conditions.-The grant of swamp lands to the intervenor by Sp. Laws 1875, chap. 54, was a grant in præsenti upon conditions subsequent. Such a grant is not forfeited by a mere breach of the conditions, but only by some affirmative action on part of the state after the breach, declaring or asserting the forfeiture on account of the breach.

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Transfer of Grant in Case of Forfeiture-Reinvestment in State.-Sp. Laws 1878, chap. 246, transferring this grant to the defendant "in case of forfeiture by said Duluth & Iron Range Railroad Company was a grant upon a condition precedent, to-wit, that the former grantee shall be divested of the grant, and the same become reinvested in the state, because of a breach of its conditions.

Same-Failure to Declare Forfeiture. Hence, although the intervenor defaulted, yet, it never having been divested of the grant by any declaration or assertion of forfeiture by the state, the condition precedent to defendant's grant has never been performed or fulfilled, and consequently the grant has never taken effect.

"Float Grant "-Selection of Swamp Lands.-Sp. Laws 1869, chap. 56, although in form an amendment to Sp. Laws 1865, chap. 3, is in itself a complete act, making a “float "grant to the plaintiff in aid of its "Hinckley' branch of 10 sections to the mile without any limitation as to the locality where the lands shall be selected. But the right of selection not being given to the plaintiff belongs to the state, which may fill the grant out of any of its swamp lands. Notwithstanding the grant to plaintiff the state had a right to grant any of its swamp lands to any one else, provided only that it retained enough to fill plaintiff's grant.

Same. The grant to intervenor is also a float grant, but the right of selection is given to the grantee, but limited to the three counties of St. Louis, Cook, and Lake.

Insufficiency of Lands-Priorities-Construction of Grants.-The provision in this grant "that no lands shall accrue to the said company under this act, until all grants of swamp lands previously made shall be fully satisfied," was not intended to postpone the appropriation of any land to intervenor's grant, until all prior grants had been actually filled by the selection of specific lands to their full amounts, but merely to provide that in case there were not enough lands to fill all the grants, including intervenor's, the prior grantees should have their full amounts, and intervenor stand the shortage. Same-Authority of State.-There not being enough swamp lands in the three counties named to fill intervenor's grant, and there being enough outside these counties to fill plaintiff's grant, the state had no right to appropriate to the latter lands in these counties, at least after intervenor's grant had, by selection, attached specifically to such lands.

APPEAL from District Court, St. Louis County.

M. D. Grover and Geo. B. Young, for Minneapolis & St. C. R.

Co.

Warner & Lawrence and Barr & Catlin, for Duluth & W. R. Co.

Draper & Davis, Davis, Kellogg & Severance, and Horace G. Stone, Special Counsel, and J. H. Chandler, General Counsel, for Duluth & I. R. R. Co.

MITCHELL, J.-This is a contest between three rival claimants to a 40-acre tract of swamp land, situated in St. Louis county, and within the Duluth land district, each Case stated. holding a deed from the governor of the state, and each claiming title under a legislative grant of swamp lands in aid of its road. The land is more than 10 miles from intervenor's road. No part of plaintiff's road is within St. Louis county, or within the Duluth land district. Intervenor's road is wholly within the counties of St. Louis and Lake. The dates (all in 1889) of selections by, and conveyance to, the respective parties are as follows: January 8th, deed to defendant; January 14th, selection by intervenor; May 2d, selection by plaintiff June 1st, deed to plaintiff; December 20th, deed to intervenor. The plaintiff claims under the act of March 5, 1869, (Sp. Laws 1869, chap. 56,) amending the act of February 11, 1865, (Sp. Laws 1865, chap. 3.) The intervenor claims under the act of March 9, 1875, (Sp. Laws 1875, chap. 54;) which was amended by the acts of February 17, 1876, (Sp. Laws 1876, chap. 241;) March 6, 1883, (Sp. Laws 1883, chap. 69:) and of March 10, 1885, (Sp. Laws 1885, chap. 87.) The defendant claims under this same act of March 9, 1875, (Sp. Laws 1875, chap. 54,) and the act of March 9, 1878, (Sp. Laws 1878, chap. 246.) All issues of fact are determined by the findings, so that the case turns upon questions of law arising on these various legislative acts.

Transfer of

lands for

feited for breach of conditions.

1. Defendant's contention is that the grant to the intervenor, by the act of March 9, 1875, was transferred to itself by the act of March 9, 1878. The act of 1878 is entitled "An act to transfer the lands granted to the Duluth & Iron Range Railroad Company, and for other purposes." It provides that the lands granted to the Duluth & Iron Range Railroad Company, by the act of March 9, 1875, in case of forfeiture by the said Iron Range Railroad Company, be and the same are hereby transferred and vested in the Duluth & Winnepeg Railroad Company." This is clearly a grant upon a condition precedent, to-wit, the forfeiture of the grant by the former grantee. By reference to the act of March 9, 1875, it will be seen that the grant to the intervenor is what

is familiarly known as a grant "in præsenti upon conditions subsequent." It is elementary law that such a grant is not forfeited by mere default of the grantee in the conditions, but only by some affirmative act of the state, after the breach or default, declaring or asserting the forfeiture. The right of the state to a forfeiture must be asserted by judicial proceedings, the equivalent of an inquest of office at common law, finding the fact of forfeiture, and adjudging a restoration of the estate on that ground; or there must be some legislative assertion of ownership of the property for the breach of the condition; and until this is done the grant remains vested in the grantee, notwithstanding the breach of the condition. Moreover, if, after the breach, the grantee proceeds and earns the grant by the construction of its road, before any action on part of the state asserting or declaring a forfeiture, the state cannot afterwards divest the grantee of the land by declaring a forfeiture. These propositions, as applied to land grants, have become so familiar, especially since the decision in Schulenberg v. Harriman, 21 Wall. 44, that a discussion of them, or a citation of authorities in their support, would be worse than useless. The intervenor was not in default in any of the conditions of its grant in March, 1878, or for nearly a year afterwards. In 1879, it did default, not having, as the court finds, located its line, or filed a map of it, until the spring of 1882. But the state has never declared or asserted any forfeiture, either by legislative act or by judicial proceedings, and in the meantime the intervenor has gone on and earned its grant by the construction of its road, so that it is now beyond the power of the state to declare a forfeiture. It is not, and cannot be, claimed that the act of 1878 amounted to a legislative declaration of forfeiture, because at the time of its passage, there had been no default or breach on part of the intervenor. It follows that the grant of 1875 has never been forfeited, but is still vested in the intervenor. It would seem to necessarily follow, as a corrollary from this, that the condition precedent to the grant to defendant has never been performed or fulfilled, and hence. that the grant has never taken effect. But defendant contends that the word "forfeiture" is used in the act of 1878 merely in the sense of a default or breach of condition which would be a ground for a forfeiture; in other words, rendered the grant subject to forfeiture, and hence on the mere default of intervenor the grant to itself took effect. The word "forfeiture" is, no doubt, frequently used in the sense suggested, but it could not have been used in any such sense here. Clearly the legislature never intended that there should be two vested co-existent grants,-one in the inter

venor, and another in the defendant,-which would be the case here, if defendant's contention is correct. It cannot be seriously claimed that the act made a new grant, distinct from and independent of the one previously made to the intervenor. Counsel conceded on the argument that, if there had been no forfeiture by intervenor, the grant to the defendant would not have taken effect. Indeed this concession was unavoidable, for, if the act of 1878 made a new and independent grant, no such subject is expressed in the title. What the legislature intended, and all they intended, was that, if the intervenor should be divested of its grant because of a breach of its conditions, then it should go to the defendThe language of the act must be construed with reference to the rule of law that the grant would not revert to the state, so as to be capable of being transferred by it to another, without a declaration or assertion of the right of forfeiture on part of the state. Counsel suggests that, under this view, the grant to defendant would amount to very little, being in effect a grant at the option of the state to declare a forfeiture, if it saw fit. This may be true. But the answer is that this is all the defendant got from the state, and the courts cannot enlarge it into something greater. Counsel also urges that the case is different from what it would have been if intervenor's grant had, at the date of the passage of the act of 1878, acquired precision, and had attached to specific lands, instead of being, as it then was a mere float. But we cannot see how this has the slightest bearing upon the Our conclusion is that, the condition precedent never having been performed, the grant to defendant never took effect; hence the deed to it is absolutely void, having no legislative grant to rest on.

case.

2. This brings us to the consideration of the respective claims of the plaintiff and the intervenor. Each concedes that the other has a valid grant, and has complied with its terms. It becomes necessary, therefore, to ascertain the extent and nature of these two grants. It will be observed that the first grant to plaintiff was by the act of February 11, 1865, and that the act of March 5, 1869, under which it now claims, is in the form of an amendment to, or substitute for, section I of the act of 1865. And the first question to be determined

of 1869.

is whether the provisions of sections 3 and 4 of the Effect of act act of 1865 are, as intervenor claims, applicable to the act of 1869; for, if they are, then plaintiff has no right to any land in St. Louis county, or in the Duluth land district. Our opinion is that the act of 1869, although in form an amendment to section I of the act of 1865, is, in itself, a complete act, fully covering the subject to which it relates,—

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