Lawe vs. Hyde. nance presupposes existence, as a condition absolute. What is in posse cannot be maintained, but only what is in esse. The university might be located, anytime, anywhere, within the terms of the charter. But it could be maintained nowhere until it had been located somewhere. The rule of construction will not permit us to enlarge the word used, in aid of the condition, so as to import that the university shall be first located and thereafter maintained, within the limits indicated. The condition requires maintenance only, implies location under the charter already made, and rests on the maintenance of that. It is indeed the university which the condition.requires to be maintained. If the sense were an extant university, with its grounds, buildings, library, apparatus, faculty and students, to constitute it one, the condition might well be, as presently suggested, void for impossibility. But we must construe words according to the conditions under which they are used. The site of a university is a part of it. A site indeed is the first requisite for it. And a site selected and acquired for a prospective university, presently to be raised upon it, might well be regarded as an inchoate university; and as such could be maintained. We do not see what else the term could mean under the circumstances; and it can mean that. The condition provides reverter of the estate granted, upon failure or removal. Removal plainly means removal of the site of the university elsewhere. Failure appears to mean failure to establish the university upon the site. The rule of construction will not warrant the introduction of another antecedent for the word, so as to signify failure to locate. Maintenance is the antecedent of both words; removal of the university to another site, and failure to establish it on this site, appear equally to violate the condition to maintain on this site. The object of the condition is the maintenance of the site of the university. Change of site or failure of the university alike defeat the object. Lawe vs. Hyde. There is no limit of time in the condition for its operation. It runs from the delivery of the deed. If it related to a university in actual operation, or if, at the date of the deed, the location of the university had not been made, or had been made elsewhere than the condition indicates, it might be a grave question whether the condition would not be void, as uncertain or impossible. Co. Lit., 206 a, b, 219 a; 2 Greenleaf's Cruise, 4; Washb., 447. And the most favorable construction, and we hold the true construction, of this condition is that it relates to a site selected for the university under the charter. As the condition implies a location made, so it implies where it has been made. And it is very apparent that it is not on the land conveyed. Whether the conveyance was drawn by skillful or unskillful persons, if the condition related to location on the land conveyed, present or future, it would have been the most obvious and easy thing to say. If such had been the object of the conveyance and of the condition, it is almost incomprehensible that it should have been overlooked or left to argumentative inference. It appears to us that no person of sufficient intelligence to draw the deed, lawyer or layman, could well avoid direct expression of so radical and vital a fact, so readily made; and go out of the way, in more difficult circuity of language, to obscure the intent. Indeed not to obscure it, but to negative. For the condition specifies the land to revert upon breach, "the said land," that is the land conveyed, which is part of section twenty-six, but provides for the maintenance of the university on section twenty-six, at large, without limit of part, implying anywhere within the section. It says section twenty-six as above described, and so it is above described, as a section may best be, by its town and range; but it says, in that regard, neither lot one nor lot two, nor "the said land" in the section, but the section itself, absolutely, without other description or limitation. We cannot hold the section as above Lawe vs. Hyde. described to mean some thirty acres of the section above described. Words, expressing the whole cannot, to aid a forfeiture, be held to intend a part only; they include the part, but are not limited to it. The two descriptions, section twenty-six as above described, and the said land, stand in apparent contrast, signifying different things. If the conveyancer had intended the same thing, he must have chosen language to conceal and not to express the intention. The two phrases, so used, could not well be forced by any rule of construction into one meaning. Certainly not to aid a condition subsequent inserted by a grantor in his conveyance, and set up by him to defeat his grant. Verba chartarum fortius accipiuntur contra proferentem. The respondent's conveyance is to Mr. Lawrence, for the benefit of the university. Benefit is here equivalent to advantage, not to occupation; advantage by occupying, renting, selling, or otherwise. Benefit includes occupation, but is not confined to it. It is a broad word. A devise of the benefits of real estate for a term, under a will devising the fee elsewhere, appears to have been held to vest an estate in the land for the term. McCullough's Appeal, 4 Yeates, 23. Here the word seems to include any beneficial use which may be made of the fee simple. And here again it is difficult to comprehend, if the purpose of the grant was a site for the university, how the conveyancer, expert or inexpert, contrived to miss some direct, definite and obvious word signifying site, and to lose his meaning in so large and almost indefinite a word as that used. And so the deed, outside of the condition, is in striking accord with our construction of the condition itself. If we had been able to adopt the respondent's construction, we are not at all sure that it would have availed him. For it appears that the university is maintained on part of the land conveyed. And it is not certain that the sale of the other part would work a breach of the condition and a reverter of the Herzer vs. The City of Milwaukee. whole. For it seems that such a condition must defeat the whole estate or none. Shep. Touch., 127; Cabet's case, 1 Rep., 83 b; 2 Greenleaf's Cruise, 3. And it might be difficult to enforce forfeiture of an estate in land for failure to maintain on it what is maintained on part of it. "This condition, like every condition to defeat an estate, must be construed strictly, not to say literally. If the grantors intended more, they should have expressed it." Hadley v. Hadley, supra. If it was the intent that the university should be located and maintained on the land conveyed, and that all the land conveyed should always be used as a site for the university, and no part of it for any other purpose, we can only say that the condition fails to express such intent. In our view, there does not appear in the complaint any breach of the condition subsequent in the respondent's deed, to work a reverter. The complaint therefore fails to state a cause of action, and the demurrer should have been sustained to it. By the Court. The order of the court below is reversed, and the cause remanded with directions to sustain the demurrer to the complaint. LYON, J., took no part in this case, having been a trustee of the Lawrence University during some of the proceedings involved. HERZER VS. THE CITY OF MILWAUKEE. MUNICIPAL CORPORATIONS. Wairer of damages for change in grade of street. The common council of a city having ordained a change of the grade of numerous streets, in a part of the city in which plaintiff's lots were situate, and having executed the ordinance in part, plaintiff, who was suffering serious special injury from such partial execution, in order to relieve Herzer vs. The City of Milwaukee. himself from such injury, signed a petition to the common council to have the street fronting his lots completed according to such grade. Held, that this was not a waiver of his right to damages for such change of grade. APPEAL from the Circuit Court for Sheboygan County. Action for damages caused by a change of grade of the street in front of certain lots owned by plaintiff in the defendant city. The facts are undisputed, and are substantially as follows: In 1869, the common council of Milwaukee passed an ordinance changing the grade of the streets surrounding some fifty blocks lying in a compact form adjacent to each other. Block 116, in which the plaintiff owned two lots, was one of these. In 1870, pursuant to such ordinance, the streets bounding block 116 on the north and south, and other streets east of said block, but not adjoining it, were worked to the new grade. Certain owners of lots in that block on both sides of plaintiff's lots voluntarily filled the street bounding the block on the east, in front of their respective lots, to such new grade, without objection by the city authorities. The results were, that the plaintiff had no outlet from his lots by way of the street in front of them without ascending an abrupt grade four feet high; and a certain natural outlet for surface water from adjacent high grounds to the river was obstructed, so that such water collected and remained upon the plaintiff's lots. Such being the condition of the grade and of his lots, the plaintiff, in 1871, at the request of a member of the board of public works of the city, and of his neighbors, signed a petition to the common council that the street on which his lots fronted be graded for the distance of three blocks, including the portion thereof in front of his lots, to the grade established in 1869. Several other resident owners of lots abutting on the proposed improvement also signed such petition, and the street was graded in accordance therewith. The damages for which the action was brought were caused by such grading. |