
    Parmelee et al. v. Oswego and Syracuse Railroad Company et al.
    
    
      Estate upon Condition.
    
    Where lands are set apart to a person for the erection of salt-works, the interest of the grantee is subject to the condition precedent, that such works shall be erected within four years ; and so far" as they are not covered with erections, his interest ceases, at the expiration of that time.
    The interest of a grantee, upon condition, subsequent, ceases on a breach of the condition, without entry by the state.
    Parmelee v. Oswego and Syracuse Railroad Co., 7 Barb. 599, affirmed.
    ^Appeal from the general term of the Supreme Court, in the fifth district, where a judg- L ment rendered for the defendant, in a case tried before the court, without a jury, had been affirmed. (Reported below, 7 Barb. 599.)
    This was an action to recover damages for an alleged trespass committed by the defendants, in excavating and laying the track of the Oswego and Syracuse railroad, through parts of lots Nos. 54, 55 and 56 of the Onondaga Salt Springs reservation, lying west of the city of Syracuse, claimed by the plaintiffs; to recover possession of the same; and to perpetually enjoin the construction of the said railroad therethrough. No question was raised as to the regularity of the organization of the railroad company, nor as to the location of the line of their proposed road.
    On the trial of the cause, before Pratt, J., without a jury, it appeared, that in 1841, one Robert Gere applied to the commissioners of the land-office to have lots Nos. 54 and 55 in the Onondaga Salt Springs reservation set apart to him, for the manufacture of coarse salt; and one Samuel Brewster at or about the same time, applied to have lot No. 56 set apart to him, for the same purpose; which applications were respectively granted; and the plaintiffs succeeded, by assignment, to the rights of the original applicants. The resolution of the commissioners upon Gere’s application (and that in respect to Brewster’s was similar in its provisions), was, substantially, as follows:
    *“ Resolved, that the said application be ' J granted in part, and that the land therein specifically described,” (giving the description, including the lots Nos. 54 and 55, and excluding certain other lands mentioned in the petition) “ are hereby set apart to the said Robert Gere, for the purpose of erecting works thereon for the manufacture of coarse salt, pursuant to the provisions of article 4, of title 10, of chapter 9, of part 1 of the revised statutes.”
    The statute under which these grants- were made (1 R. S. 267, § 104-6,) provides for the application, setting forth the amount of capital to be invested in the works; and for the setting apart of the land by the commissioners; and the two following sections declare the rights of the occupants under the resolutions. By § 107, it is provided that the occupant shall have four years within which to complete the works, but that the location shall be void, unless the works shall have been commenced, and one-tenth of the capital expended, within one year; “ and the land, except such ■ parts thereof, as shall have works actually erected thereon, shall be liable to be located by any other individual or company.” And § 108 enacts, that “ any part of such location, which,-at the expiration of the said four years, shall not be actually occupied by manufactories, pursuant to the intentions of 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.”
    
      The plaintiffs and their assignors had invested about $20,000 in the erection of salt works, upon the premises located, and had covered about ten acres of the ground with such works; but the land -through which the defendant’s railroad was located was fenced in, and used for agricultural purposes; and more than four years had elapsed from the time of the respective grants.
    *On the part of the defendants, it was shown, ^ that the lands occupied by their road had been appraised to them, under the provisions of the act of 12th April 1848; that they had paid to the state the amount of the appraisal; that the commissioners of the land-office had directed the issuing of letters-patent to them for such lands; and that letters-patent had issued to them accordingly, under the great seal of the state ; and they contended, that whether their patent was valid, or otherwise, the plaintiffs, who had shown no title, could not question its validity.
    *The learned judge decided, that as neither the grantees under the resolutions of the commissioners of the land-office, nor their assigns, had, within four years, erected any salt-works upon the lands taken by the railroad company, no right or title was vested in them, or any of them, and, consequently, the plaintiffs had not any such interest as entitled them to maintain this suit. Judgment was, therefore, given for the defendants; the plaintiffs’ counsel excepted to this decision; and the judgment having been affirmed at general term, they took this appeal. [ * 78
    
      Comstock, for the appellants.
    
      Ruger, for the respondents.
   Foot J.

— The principal question in this cause, is, whether the appellants have any interest in the land in question; and that depends on the true construction of the leases or licenses given by the commissioners of the land-office, and under which the appellants claim the land. The commissioners, in their deed or act of license, simply say, that the lands “ are hereby set apart to the said Robert Gere, for the purpose of erecting works thereon, for the manufacture of coarse salt, pursuant to ^ the *provisions of art. 4, of title 10, of chapter 9, of part 1 of the revised statutes.” On referring to the provisions of the statute on the subject (1 R. S. 266, 267, §§ 104 to 108), it appears, that any individual or incorporated company, intending to erect works for the manufacture of coarse salt, may make application to the commissioners of the land-office in the manner therein prescribed, for the “ quantity of land necessary to the erection thereof.” “The commissioners of the land-office shall thereupon set apart such land, or so much thereof as they shall deem reasonable, for the purposes of such individual or company, in a compact form,” &c.

“ Such individual or company shall, thereafter, have four years to complete the "works thereon; hut if the individual or company shall not, within one year thereafter, commence such works, and actually expend thereon, at least one-tenth part of the capital so specified, such location shall be void; and the land, except such parts thereof as shall have works actually erected thereon, shall be liable to be located by any other individual or company.”

“ Any part of such location which, at the expiration of said four years, shall not be actually occupied by manufactories of coarse salt, pursuant to the intention of the original location, may be again set apart, by the com-missioners of the land-office, to any other person or company, for the erection of such manufactories.”

It is manifest, from these provisions of the statute, that the legislature did not intend to give the applicant any right of occupancy, or interest in the land of the state, set apart to him, beyond what he should actually cover, within four years, with works erected for the manufacture of salt; and as the licenses of the commissioners of the land-office, in this case, neither gave, nor professed to give, the applicants or lessees, any other interest or right than that specified in the statute, they cannot rightfully claim any interest or right in the land of the state, set apart to them, which was not covered by their works within four years after they obtained their licenses. As the land in ^question was not 80 r * gq covered, the decision of the judge, on the trial, ^ ^ and the judgment of the supreme court approving of the same, are, in our opinion, correct.

Paige, J.

— No precise technical words are required in a deed, to make a stipulation a condition precedent or subsequent; neither does it depend on the circumstance whether the clause is placed prior or posterior in the deed, so that it operates as a proviso or a covenant; for the same words have been construed to operate as either the one or the other, according to the nature of the transaction, and the intention of the parties. (4 Kent’s Com. 124; 4 Cruise’s Dig., tit. 32, c. 25, § 10, and note 1; tit. 13, c. 1, § 6, note 1, Greenl. ed.) The precedency of the conditions must depend on the order of time in which the intent of the transaction requires their performance. The rules for finding the intent of the parties are the same as those in regard to covenants. (1 Doug. 689, 691; 1 Saund. 320, note 4.)

Where a condition annexed to an estate for years is broken, the estate ipso facto ceases, as soon as the condition is broken, without an entry. (4 Kent’s Com. 128 ; Co. Lit. 214 b; Cruise’s Dig., tit. 8, c. 1, § 22; tit. 13, c. 2, Condition, § 45, Greenl. ed.; Pennant’s Case, 3 Co. 64.)

The only exception to this rule is, where the lease provides expressly, that the landlord shall re-enter in case of a breach of the condition. (9 Paige 431; 6 Barn. & Ores. 519.) There, the lease is not void, but voidable only, at the election of the landlord. But in all cases where an estate for years is granted on condition, and the lease declares that the estate shall cease and determine, on the breach of the condition, without any clause of re-entry or other qualification, the estate will ipso facto cease, as soon as the condition is broken.

I think, that the estate acquired by the plaintiffs, under Gere and Brewster, was an estate on a condition precedent. They acquired no estate or interest whatever in any part of the lots set apart, until they erected manufactories of salt thereon. . Before the erection of the manufactories, and until the expiration of the four years, ^ g they had *only a license to enter and occupy, -* for the purpose of erecting such manufactories ; the license was merely for this, and for no other purpose. At the expiration of the four years, the license ceased, as to all the lands then not actually occupied by manufactories of salt; and the commissioners of the land-office were at liberty again to set apart such lands to any other person, for the erection of such manufactories.' (2 -Edw. Ch. 78; 7 Paige 22.) Even if the interest of the plaintiffs, during the four years, was an estate for years, and it be conceded that the condition was subsequent, such estate ipso facto ceased, on the breach of the condition, without an entry. In this view of the case, the plaintiffs have no title to the premises occupied by the defendant’s railroad, and they were intruders thereon, when the defendants entered to construct their road.

If, after the expiration of the four years, the plaintiffs had an estate at will in the lands not occupied by manufactories of coarse salt, that estate was determined by the sale and conveyance of the state to the defendants. (1 Cruise’s Dig., tit. 9, c. 1, §§ 7,12,13-, Greenl. ed.) Even where a party making a location on any part of the salt springs’ reservation, erects his buildings for the manufacture of coarse salt, within the time prescribed by the statute, he acquires no legal interest or estate in the lands covered by his works, and has only an equitable interest in his erections. The defendants have shown a title derived from the state by letters-patent; the plaintiffs, being intruders, have no right to question or assail it. When the defendants first entered to construct their railroad, in November 1847, the plaintiffs had no estate or interest, possessory or otherwise, in the premises in question, and the whole title was then in the state. The defendants, afterwards, and before the commencement of this suit, paid the appraised value of the premises to the state, and on the 5th October 1848, received a conveyance therefor from the governor, founded on the resolution of the commissioners of the land-office, directing that letters-patent be issued to the defendants for said premises. The defendants were thus, at the commencement of this suit, in possession *of the premises, f ^ claiming a title under the state, the owner of the ■- same, which title was afterwards perfected by letters-patent, issued by the governor to the defendants. The validity of this title can only be questioned by the state, in a direct proceeding to avoid it. (Code of 1851, § 433.)

I am of opinion, that the judgment of the supreme ($curt should be affirmed.

Judgment affirmed,  