FEDERAL REPORTER, vol. 59. would revert to the dedicators or their representatives." Education v. Edson, 18 Ohio St. 226. Board of La Salle, 117 Ill. 411, 8 N. E. 81, was under a like statute, and is in The case of Zinc Co. v. City of accord with the Ohio case. whether the fee be in the dedicator, or be in the town or county, by It follows, under the law of Ohio, that virtue of the statute concerning properly registered town plats, the dedicator, or his heirs, may repossess himself whenever it is no longer possible to use the property for the purposes indicated by the dedication, or whenever there has been a full and lawful abandonment of the easement by the beneficiaries. donment of these lots as a burying ground would therefore operate The lawful and effectual abanto restore the owner to his right of possession by the termination of the easement. The case of Campbell v. City of Kansas, 102 Mo. 326, 13 S. W. 897, goes to this extent, and no further. The parcel of land involved in that suit had been marked upon a town plat as donated for burying purposes. The city council afterwards, by ordinance, caused the bodies there buried to be removed, and converted the plot into a public park. The plat was never properly acknowledged or registered, and the title therefore remained in the dedicator. The heirs of the original owner sued in ejectment, and recovered; the Missouri court holding that the public had only an easement for burial purposes, and that the lawful abandonment of this easement revested the dedicator with the right of possession. It was not a case of an estate upon condition, but a case of a mere easement for a specified use. This brings us to a consideration of the effect of the deed made in 1868 by the plaintiff to the village of Youngstown. Is this deed equivalent only to a statutory dedication? be defeated by any subsequent event? Is it a grant subject to cover, he must show that the estate conveyed by him has terminated, To entitle the plaintiff to reand that he now is entitled to re-enter. this deed by the circuit judge was governed by his view of the act The construction put upon of 1867, and, by treating it as a part of the deed, he thought that that act only undertook "to confer upon the village the power and control over the burying ground which the public would have in such grounds, dedicated for burial purposes, at common law;" that it fixed "the trustee to preserve the rights of the public in a commonlaw dedication;" and that "the authority and control of the council is limited by the act to the preservation of such rights, and, by reading the act into the deed, the same limitation upon the fee therein conveyed is created." The result of this construction of the act of 1867, when read into the deed, he sums up in his conclusion thus: "The effect of the deed here was to put the parties in exactly the same situation that they would have been in had the dedication of John Young, in 1802, been in accordance with the statute then in force." This is a strong position. Its error seems to lie in confounding the distinction between the effect of a grant by deed for a public use and a common-law or statutory dedication for a like purpose. To say that, by reading the act of 1867 into the deed, the effect is to cut it down into an instrument operating only as if the grantees held under a statutory or common-law dedication, is to assume the whole point in controversy. We shall not antagonize the soundness of the construction put on the act of 1867. If it had been possible, by retrospective legislation, to divest a legal title out of one and vest it in another, the result, after all, would have been but a statutory dedication. Under the Edson Case, such a dedication, though operating to pass the title for the uses and purposes specified in the instrument, would terminate when the use became impossible. That case may be treated as recognizing no distinction between the duration of a common-law dedication and a statutory dedication operating to pass the legal title. The well-settled distinction between a grant by deed and a dedication for a particular use is not touched upon in the Edson Case. Subsequently, the same court, in Taylor v. Binford, 37 Ohio St. 262, expressly treated the question as undecided, and reserved its consideration. The circuit judge, whose opinion we are now considering, clearly recognized this distinction, and undertook to take this case without the rule affecting grants by deed. On this subject he said: "Counsel for the defendants contend that there is a distinction between a grant by deed and a dedication for a particular or specific use, and that a condition subsequent cannot be created in a deed by limiting the use, unless there be a clause of re-entry for forfeiture; and several strong cases are cited to sustain the claim with respect to a deed. Raley v. Umatilla Co., 15 Or. 180, 13 Pac. 890; Packard v. Ames. 16 Gray, 327; Ayer v. Emery, 14 Allen, 67; Brown v. Caldwell, 23 W. Va. 187; First M. E. Church of Columbia v. Old Columbia Public Ground Co., 103 Pa. St. 608. In Taylor v. Binford, 37 Ohio St. 262, the supreme court of Ohio declined to decide whether the law of Ohio was in accordance with these authorities, and the question is an open one in this state. But these cases do not apply to the construction of the deed at bar. Here the conveyance is in fee to the village to exercise certain defined possession and control over the land, namely, that possession and control exercised by the public over an easement acquired by common-law dedication. The fee reverts. not by entry after condition broken, but by a simple termination of the estate on the impossibility of exercising the possession and control for which it was given.” What is the character of the fee conveyed by this deed? solutions are possible: Three (1) That it operated, as held by the circuit court, only to pass such qualified fee "as would pass under a statutory dedication," and that the fee reverts, "not by entry after condition broken, but by a simple termination of the estate on the impossibility of exercising the possession and control for which it was given." (2) That it conveyed the fee, subject to be defeated by the happening of a condition subsequent. (3) That it conveyed an absolute fee, subject to a trust that it should be preserved as a burial ground. Let us take these solutions up in the order stated. At the outset it may be confidently said that the cases relied upon as supporting the first solution were not cases of voluntary grants by deed. They were, with one exception, all cases under statutory dedications, and the court only considered the effect of an abandonment of the public use to which the property had been devoted by statutory dedication. The cases were: Board of Education v. Edson, 18 Ohio St. 221; Gebhardt v. Reeves, 75 Ill. 301; Zine Co. v. City of La Salle, 117 Ill. 411, 8 N. E. 81; Hooker v. Utica, etc., Road Co., 12 Wend. 371; Slegal's Executors v. Herbine, decided by the supreme court of Pennsylvania, but reported only in 25 Atlantic Reporter, 996. This The latter was a case of a qualified or base fee, subject to be defeated by the abandonment of the use. It was not a mere conveyance subject to a trust for a public use, for the grantor reserved to himself "the free use of the premises so granted for an open yard, garden, or grass plot, with the rents, issues, and profits." The land adjoined a prison wall, and the object of the public was to secure an open space adjoining the walls to prevent escapes. object was accomplished by a conveyance which, though it vested the fee, yet was so specific in defining the purpose for which the fee was conveyed, and so clear in reserving to the grantor the use of the premises, subject to the space being kept open, that although the deed contained no express clause of re-entry upon abandonment by the grantee, yet it was clear that the fee was a base or determinable one. The case is authority only for the proposition that technical words importing an estate determinable upon a condition subsequent are not always essential, if the clear intent of the parties is shown by the whole scope of the instrument to be that the estate shall determine upon the cessation of the use defined. The reservation by the grantor of an interest in the use has long been regarded as a circumstance of great moment in construing such deeds. Rawson v. Uxbridge, 7 Allen, 125. In the case last quoted, Bigelow, C. J., said: "We believe there is no authoritative sanction for the doctrine that a deed is to be construed as a grant on a condition subsequent solely for the reason that it contains a clause declaring the purpose for which it is intended the granted premises shall be used, where such purpose will not inure specially to the benefit of the grantor and his assigns, but is in its nature general and public, and where there are no other words indicating an intent that the grant is to be void if the declared purpose is not fulfilled." The Pennsylvania court has always adhered to the rule that "the mere expression of a purpose will not, of and by itself, debase a fee." Kirk v. King, 3 Pa. St. 436; Scheetz v. Fitzwater, 5 Pa. St. 126; First M. E. Church of Columbia v. Old Columbia Public Ground Co., 103 Pa. St. 613. This very principle is announced and adhered to in Slegal's Case. The defendants here are not holding under a mere common-law dedication. Neither are they holding under a statutory dedication. No statute operates in their favor, or affects their rights. They hold under a grant by deed. The character of the fee conveyed must be ascertained by a construction of the words of that deed. If the convey. ance is less than an absolute fee simple, it must be because the deed has so limited and qualified the fee conveyed as to make it de pendent upon conditions either precedent or subsequent. To determine this, we may look to the whole deed, and search its four corners, to ascertain the intent of the grantor. If the deed refers to some other paper as containing the boundaries or as defining the objects and purposes of the grant, we may look to this paper thus, by reference, made a part of the grant. If by apt words the quantity of estate to be conveyed is measured and defined in another instrument, then we may look to that other instrument to see how far the estate is a qualified one. This is all that we understand by "reading into this deed the act of 1867." We are, however, to bear in mind that the instrument we are construing is a deed. That it purports on its face to be a grant "absolute" and in fee. If it is less than this, it is because by necessary implication these words are qualified by the reference made to another instrument, to wit, the void act of 1867. If this is less than a fee absolute, -if this is a deed subject to be defeated by a condition, that condition must clearly and unambiguously appear from the words of the instrument. "Conditions are not to be raised readily by inference or argument." Co. Litt, 205b, 219b; 4 Kent, Comm. (6th Ed.) 129-132. On this subject, Mr. Washburn says: "But conditions subsequent, especially when relied on to work a forfeiture, must be created by express terms or clear implication, and are construed strictly." 2 Washb. Real Prop. (6th Ed.) p. 6. Starting out with the fact that this is a grant by deed, and that it conveys a fee, we are to inquire whether this fee has been divested or defeated by the occurrence of any event subsequent to the execution of the deed. Conditions subsequent are, as the term implies,' such as, "when they do happen, defeat an estate already vested." What are these conditions which have operated to defeat the estate conveyed? The insistence is that the legal impossibility of the future use of this lot as a burying ground operates to determine the fee. Does the deed, either expressly or by strong and clear implication, provide that the estate shall be forfeited when this lot shall cease to be used for burial purposes? It is to be observed at the outset that the deed does not in terms provide for any such contingency. There is no reservation of a right of re-entry, and none of the words are used which, according to the cases, ordinarily imply a condition. These words or forms of expression are usually found where the grantor intended to qualify his conveyance. Among the forms of expression which imply a condition in a grant, "the writers," says Mr. Washburn, "give the following: 'On condition;' 'provided always;' if it shall so happen;' or 'so that he the grantee pay,' etc.; and grants made upon any of these terms vest a conditional estate in the grantee." The same author says: "And it is said other words make a condition, if there be added a conclusion with a clause of re-entry, or, without such clause, if they declare that, if the feoffee does or does not do such an act, his estate shall cease or be void. But it is said 'that if one makes a feoffment that the feoffor shall * in fee,' 'ea intentione,' 'ad effectum,' * * # * # do or not do such an act, these words do not make the estate conditional, but it is absolute notwithstanding. And yet these words may create a condition if a right of re-entry is reserved in favor of the grantor in case of failure to carry out the intention thus expressed." 2 Washb. Real Prop. (5th Ed.) 3. FEDERAL REPORTER, vol. 59. As stated, none of the words which technically imply a conditional estate are found, and there is no clause of re-entry. subsequent may be so strongly and clearly implied, from the whole Yet a condition tenor of the deed as to demand recognition, though not expressed in technical language. for appellee has planted this case. This is the contention upon which counsel under which this deed was made. Let us look at the circumstances (1) The lots had been dedicated by a good common-law dedication, as far back as 1802, by the ancestor of plaintiff, as a public burying ground. (2) In consequence of a trespass, a suit had been brought, the progress of which was embarrassed because the common-law dedication had not operated to pass title. (3) To obviate this difficulty, the legislature had passed the act of 1867. (4) This act was absolutely void. legal title out of the heirs of John Young, and vest it in the council, Its object was to divest the and thus turn a mere easement into a legal estate. operative because it was not in the power of the legislature to thus The act was indivest the title out of the legal owners, or enlarge the estate which 'had been granted. It was not "due process of law," and was a taking of property without compensation. Le Clerq v. Gallipolis, 7 Ohio, 217; Board of Education v. Edson, 18 Ohio St. 221. ,as the act undertook to vest power in the councils to manage and So far preserve such burial grounds, it was likewise inoperative, because 'it was applicable only to such burial places as were described in the act, to wit, grounds, the title to which should vest under the act. The whole act was then void. (5) At the date of the act of 1867 the legal title reserved by John Young was in Charles Young, partly by descent, and partly as a result of conveyances to him by the other heirs of John Young. These lots had been exclusively used for burial purposes, and had been so used for some 65 years. This use seemed likely to be perpetual, and the naked legal title outstanding in Young could not have been regarded as of any considerable value. come when, by abandonment, his right of possession should be reThat the time would ever stored, was one of these improbable events hardly worth serious consideration. (6) The "right, title, claim, and interest" of Charles Young consisted in a naked legal title, coupled with a possibility that at some time the public use might become impossible, and his right of possession be restored. (7) This act being at least of doubtful value, Charles Young was applied to to convey the title and interest vested in him to the village of Youngstown. As the result of this application, the deed now under consideration was executed. It was not He required the payment of $15 as a consideration, and only pergift or donation. mitted a delivery of the deed upon the assumption by the city of a debt he owed of that amount. then, this was probably an adequate consideration for the quitLooking to the situation as it stood claim he then executed. |