Page:Harvard Law Review Volume 8.djvu/78

62 62 HARVARD LAW REVIEW. Real Property — Condition Subsequent in Grant — What constitutes a Breach. — A conveyance of land contained an express condition that a certain portion of the land should remain a street, and that no building should ever be permitted thereon. A strip of this portion, sixteen inches in width at one end and two inches in width at the other, was built upon, through an honest mistake as to the boundary lines. Held, such breach is insufficient to work a forfeiture. Rose v. Hawley etal., 36 N. E, 335 (N. Y.). ilovvever desirable the conclusion reached in this case may be, it seems difficult to support on sound principles of law. The action brought in the courts below was ejectment, founded on a breach of a condition subsequent in the deed. The opinion in the Court of Appeals is based on the ground that the breach of the condition is not sub- stantial enough to warrant the conclusion that it was within the intention of the parties that it should cause a forfeiture. Admitting this to be true, it is a purely equitable defence, which might be conclusive if advanced in a Court of Equity to relieve against a forfeiture at law, but it cannot be considered a good legal defence. If courts of law will give effect to express conditions only when, in their opinion, the breach is substan- tial, it would seem that there is not much protection to be gained by the insertion of such conditions in a deed. The court say that this was not " within the intention of the parties ; " it would seem that if the parties included an express condition in the terms of their deed, their intention, so far as concerned a court of law, was that it should not be broken at all. The court here make it a question of degree, which it should not have done. It would seem very doubtful whether even equity would relieve against the breach of this condition. In 4 Kent's Comm. 130, we find that "the general rule formerly was that the court would interfere and relieve against the breach of a condi- tion subsequent, provided it was a case admitting of compensation in damages. But the relief according to the modern English doctrine in equity is confined to cases where the forfeiture has been the effect of inevitable accident, and the injury is capable of a certain compensation in damages." Here we find no accident, and damages could not be recovered. Real Property — Construction of Will — Vesting of Future Estate. — A provision in a will read as follows: " I loan to my wife, during her natural life, all my residuary estate, and my wish is that the property I have loaned to her be sold after her death, and the proceeds equally divided among my four children, or their lawful heirs begotten of their bodies." Held, the gift to the children vests immediately, so that an assignment by one during the widow's life is valid. Chapman v. Chapman, 18 S. E. Rep. 913 (Va.). 'J his is in line with the policy laid down in Seller's Ex'r v. Keed, 88 Va. 377, of favoring the vesting of interests at the testator's death. The authorities are discussed in 2 Jarman on Wills (5th Am. ed.), 458. Real Property — Riparian Rights. — Under authority of the territorial legisla- ture, the appellants built and maintained a dam across a navigable stream. Later, the city of St. Paul, also authorized by the legislature, took for its water supply the water of a lake which empties into the river above the dam. The appellants maintain that material damage had been done thereby to their water-power, and ask for a perpetual injunction. Held, that the rights of a riparian owner on a navigable stream are subor- dinate to public uses, and the water may be applied to such without compensation for damages ; drawing a supply for the ordinary use of cities is such a public use, and is not subject to the rules which obtain between riparian owners. Minneapolis Mill Co. V. Water Cotn'rs. of St. Paul, 58 N. W. Reo. 33 (Minn.). The extension of the meaning of a public use in accord with the decision of the Massachusetts court in the first Watuppa Pond case, 147 Mass. 548, which is mentioned in the opinion. The true ground of the decision seems to be that the State owns the bed of the stream, and not that the stream is navigable, though this does not clearly appear. Navigability alone would hardly support the result reached here. Real Property — Wills — Nature of Estate — Certain deposits had been made by the testator in various savings banks, in his daughter's name. He bequeathed these deposits, with various other property, to her, subject to an executory devise, and the question is whether the daughter must hold what is her own property before the bequest subject to the defeasance. The court held that she must, as " to accept the benefit while she declines the burden is to defraud the design of the donor. . . . Tl e conscience of the donee is affected." Kiivkendall v. Devecmon et al., 28 Atl. 412 (Md). This is a question of construction, and doubtless the result is in conformity with the intention of the testator. There seems to be no reason why a court cannot say there is an implied condition, although the testator does not use the word "condition," or separate the daughter's property from the rest bequeathed.