The grant of "lands to aid in the construction of a railroad and
telegraph line from the Central Pacific Railroad, in California, to
Portland in Oregon," made by the Act of July 25, 1566, 14 Stat.
239, c. 242, was a grant
in praesenti, and the provision
in section 8 of that act that in case the companies should fail to
complete the road on or before July 1, 1875, this act shall be null
and void, and all the lands not conveyed by patent to said company
or companies, as the case may be, at the date of any such failure
shall revert to the United States, is a condition subsequent, of
which only the United States can take advantage.
Under the Act of July 26, 1566, 14 Stat. 251, c. 262, "granting
the right of way to ditch and canal owners over the public lands,"
no right could be acquired to any portion of the public lands until
the actual taking possession of the same for the purpose of
constructing a ditch.
A conveyance by deed of a perpetual right in land, for a solid
consideration therein expressed, without any covenant for the
payment of rent or the redelivery of possession, creates the
relation of grantor and grantee between the parties.
The grantee in a deed of conveyance is not estopped to deny the
title of his grantor.
The plaintiff in error, under the Act of July 26, 1866, 14 Stat.
251, c. 262, constructed a ditch over lands granted to the
defendant in error for a railroad under the Act of July 25, 1866,
14 Stat. 239, c. 242. The defendant in error, under a
misapprehension of its legal rights, received a deed from the
plaintiff in error conveying a license to enter upon said ditch and
construct its road over the same for the consideration of $250 paid
by defendant in error to plaintiff in error, and upon condition
against impairing or destroying said ditch. The plaintiff in error
sued the defendant in error for so constructing its road as to
permanently obstruct and destroy his ditch.
Held that the
defendant in error, by accepting the deed, was not estopped from
denying the title of the plaintiff in error or from asserting the
invalidity of the covenant into which it had inadvertently
entered.
This was an action originally begun in the state court for
Jackson County, Oregon, and removed to the circuit court of the
United States upon the petition of the defendant, upon the
Page 139 U. S. 664
ground that the case involved the validity of conflicting grants
of land from the United States. The plaintiff sued to recover for
damages to a water ditch and water right occasioned by the
construction of the defendant's road. His complaint alleged in
substance that on the 3d of September, 1883, he was the owner of an
undivided half of a certain water ditch and water right on the
south side of Rogue River, in Jackson County, and in lawful
possession of the same, as tenant in common with one Daniel Fisher;
that upon this day, the plaintiff and Fisher, for the consideration
of $250 paid to them, executed a deed to defendant of a right to
construct and operate its railroad and telegraph line across the
said water ditch, but upon condition that it should not in any way
destroy or injure the same or obstruct their use and enjoyment of
it as a means of conveying water through the same, and that the
defendant accepted the deed, received possession of the water
ditch, and constructed its railroad and telegraph line across the
same, but in such a manner as to permanently obstruct and destroy
it and render it impossible to use it for the conveyance of water,
and refused to make any compensation to the plaintiff for his
interest therein.
The answer of the defendant in substance denied the ownership of
plaintiff and Fisher in any portion of the water ditch or water
right alleged to have been destroyed by the defendant, and denied
their lawful possession thereof. It further denied that the deed
set forth in the complaint contained any condition whatever, or
that defendant ever assented to any condition connected with such
deed, or received possession of the ditch under this deed, and
alleged as a separate defense to the complaint that it was
incorporated to construct and operate a railroad and telegraph line
from Portland, in Oregon, and running thence southerly through the
Williamette, Umpqua, and Rogue River valleys to the California line
on the southern boundary of Oregon. That by section three of an Act
of Congress approved July 25, 1866, there was granted to it a right
of way through the public lands of the United States to the extent
of one hundred feet in width on each side of the said railroad
where it might pass
Page 139 U. S. 665
through such lands. That the lands through and over which the
portion of the said water ditch alleged to have been injured by
defendant was constructed and is situated were at the date of said
act public lands of the United States, over and upon which the
defendant had the right, by virtue of the grant made in that act,
to locate its right of way and construct its railroad and telegraph
line. That in locating said right of way and constructing said
road, it became necessary for the defendant to appropriate to its
use one hundred feet in width on each side of its road, through and
over which said land a portion of said water ditch alleged to have
been injured by defendant was located and constructed, and that the
defendant did accordingly locate its right of way over the ground
through which the water ditch was dug, and constructed its road
over such right of way, and that any injury which may have been
done to said ditch was done in the course of such construction.
The answer further alleged that on May 17, 1879, the said Daniel
Fisher attempted to appropriate to his own use, under the mining
laws of the United States, a portion of said right of way, and
constructed thereon the said ditch; that the only claim of right
ever made by Fisher to locate and dig that portion of such ditch
was obtained by virtue of his pretended compliance with certain
provisions of the mining laws; that he had no other interest or
ownership in such land than the right so acquired, and plaintiff's
only interest therein was acquired under and through said Fisher,
and that defendant took nothing by the deed mentioned in the
complaint, as it then owned, by virtue of the said grant of the
United States, all the rights and property pretended to be conveyed
by said deed, and never received any consideration whatever for the
sum alleged to have been paid by it for such pretended
conveyance.
To this separate defense in the answer the plaintiff demurred
upon the grounds (1) that it did not state facts sufficient to
constitute a defense, (2) that the facts stated in the complaint
estopped the defendant from setting up the right of way mentioned
in such defense, or any benefit under the congressional
Page 139 U. S. 666
grant of the right of way of July 25, 1866, set forth in such
defense, (3) that defendant had forfeited and lost all its right
under such grant over the land where the ditch was situated by its
failure to complete its railroad road on or before the 1st day of
July, 1875, and had at no time since owned any right or interest in
such land or right of way over the same.
The court below overruled the demurrer in an opinion reported in
26 F. 586, and, the plaintiff not desiring to plead further,
entered a final judgment in favor of the defendant, to reverse
which the plaintiff sued out this writ of error.
Page 139 U. S. 673
MR. JUSTICE BROWN, after stating the facts as above, delivered
the opinion of the Court.
Two questions are presented by the record in this case: first,
whether the defendant lost the power to take possession of its
right of way by its failure to construct its road within the time
limited by the acts of Congress, and second whether it is estopped
to claim that it took nothing under its deed from the plaintiff,
and may set up a separate and independent title in itself.
1. By section 2 of an Act of Congress approved July 25, 1866,
entitled "An act granting lands to aid in the construction of a
railroad and telegraph line from the Central Pacific Railroad in
California to Portland, in Oregon," 14 Stat. 239, there was granted
to such company organized under the laws of Oregon, as the
legislature of said state should thereafter designate, to aid in
the construction of its road, "every alternate section of public
land, not mineral, designated by odd numbers, to the amount of
twenty alternate sections per mile," not otherwise disposed of by
the United States, with the right to select from the odd sections,
within ten miles beyond the limits of the granted lands, other
lands in lieu of any which might have been so disposed of prior to
the location of the line, and by section 3 there was granted to it
the right of way through the public lands, to the extent of one
hundred feet in width on each side of said railroad where it might
pass over the public lands, including all necessary grounds for
stations, etc.
By section 6, the companies were required to file their assent
to the act within one year, to complete the first twenty miles
within two years, and at least twenty miles in each year
thereafter, and the whole on or before the 1st of July, 1875.
Page 139 U. S. 674
Section 8 provided that in case the company should not complete
the same as provided in section 6,
"this act shall be null and void, and all the lands not conveyed
by patent to said company or companies, as the case may be at the
date of any such failure, shall revert to the United States,"
but by a subsequent Act of June 25, 1868, 15 Stat. 80, the time
for completing the road was extended to July 1, 1880.
That the company did not complete its road by the time limited
by the act of 1868, namely July 1, 1880, is conceded by both
parties, and is evident from the fact that the defendant took this
deed from the plaintiff on December 3, 1883, wherein, for the
consideration of $250, it was agreed that the defendant might enter
upon plaintiff's water ditch, and construct and operate its
railroad and telegraph line over the same. Indeed it appears to
have been a matter of such common knowledge in the State of Oregon
that the road was not constructed until after 1880 that the court
below was inclined to take judicial notice of the fact.
The act making the grant in aid of this road does not, in its
words of conveyance, differ materially from a large number of
similar acts passed by Congress in aid of the construction of roads
in different parts of the west, which have been considered by this
Court as taking effect
in praesenti although the
particular lands to which the grant is applicable remain to be
selected and identified when the road is located, and the map is
filed with the Secretary of the Interior. The act then operates as
a grant of all odd-numbered sections within the limits, except so
far as they may have been in the meantime "granted, sold, reserved,
occupied by homestead settlers, preempted, or otherwise disposed
of." And in all the cases in which the question has been passed
upon by this Court, the failure to complete the road within the
time limited is treated as a condition subsequent, not operating
ipso facto as a revocation of the grant, but as
authorizing the government itself to take advantage of it and
forfeit the grant by judicial proceedings, or by an act of
Congress, resuming title to the lands. Thus, in
Schulenberg
v. Harriman, 21 Wall. 44, the act of Congress
granting the lands provided in what manner the sales should
Page 139 U. S. 675
be made, and enacted that if the road were not completed within
ten years, no further sales should be made, and the lands should
revert to the United States. That was decided to be no more than a
provision that the grant should be void if the condition subsequent
were not performed. Said MR. JUSTICE FIELD in that case:
"It is settled law that no one can take advantage of the
nonperformance of a condition subsequent annexed to an estate in
fee but the grantor or his heirs, or the successors of the grantor
if the grant proceed from an artificial person, and, if they do not
see fit to assert their right to enforce a forfeiture on that
ground, the title remains unimpaired in the grantee. . . . And the
same doctrine obtains where the grant upon condition proceeds from
the government; no individual can assail the title it has conveyed
on the ground that the grantee has failed to perform the conditions
annexed."
The doctrine of this case was approved and reapplied to a
similar grant to the St. Joseph and Denver City Railroad in
Van
Wyck v. Knevals, 106 U. S. 360. In
St. Louis &c. Railway Co. v. McGee, 115 U.
S. 469,
115 U. S. 473,
it was said by Chief Justice Waite to have been often decided
"that lands granted by Congress to aid in the construction of
railroads do not revert after condition broken until a forfeiture
has been asserted by the United States, either through judicial
proceedings instituted under authority of law for that purpose or
through some legislative action legally equivalent to a judgment of
office found at common law. . . . Legislation, to be sufficient,
must manifest an intention by Congress to reassert title and to
resume possession. As it is to take the place of a suit by the
United States to enforce a forfeiture, and judgment therein
establishing the right, it should be direct, positive, and free
from all doubt or ambiguity."
The manner in which this forfeiture shall be declared is also
stated in
United States v.
Repentigny, 5 Wall. 211,
72 U. S. 267;
Farnsworth v. Minnesota & Pacific Railroad Co.,
92 U. S. 49,
92 U. S. 66;
McMicken v. United States, 97 U. S.
204,
97 U. S.
217.
An effort is made to distinguish this case from
Schulenberg
v. Harriman in the fact that the act not only declares that
the lands "shall revert to the United States," but that the act
Page 139 U. S. 676
itself "shall be null and void," from which it is argued that it
was the intention of Congress that the failure to complete the road
should operate
ipso facto as a termination of all right to
acquire any further interest in any lands not then patented. It is
true that the language of this statute differs somewhat from that
ordinarily employed by Congress in connection with similar grants,
but the declaration that the lands "shall revert to the United
States" is practically equivalent to a declaration that the act
granting such lands shall cease to be operative if the company fail
to complete its road within a specified time, or as MR. JUSTICE
FIELD puts it in
Schulenberg v. Harriman:
"The provision in the act of Congress of 1856 that all lands
remaining unsold after ten years shall revert to the United States
if the road be not then completed is no more than a provision that
the grant shall be void if a condition subsequent be not
performed."
The title to the land having vested in the company by virtue of
the grant, the provision that it shall complete the road within a
certain number of years does not cease to be a condition subsequent
by declaring that the act shall be null and void if the condition
be not complied with.
And the law is well settled that it is only the grantor or those
in privity with him who can take advantage of the forfeiture.
Indeed, the provision that "this act shall be null and void" is
immediately followed by words indicating that it is only to a
limited extent -- that is, so far only as lands not already
patented are concerned the nullity of the act extends -- the
language being:
"This act shall be null and void, and all the lands not conveyed
by patent to said company or companies, as the case may be at the
date of any such failure, shall revert to the United States."
As to lands theretofore patented, the act continued in full
force and effect. As remarked by the learned judge or the court
below:
"It is to become 'null' only so far as to allow the grantor to
presume the grant on a failure to comply with the condition, and
then only as to the lands remaining unpatented or unearned, and but
for this qualification, the grant might have been wholly resumed or
forfeited for any failure to comply with the condition,
Page 139 U. S. 677
even in the construction of the last mile. And this construction
of the section is in harmony with the general purpose of the act
and the policy of Congress in making the grant."
A condition that would put it beyond the power of the company to
build the last mile of its road by the aid of the granted lands is
manifestly so harsh and unjust that the breach of such condition
ought not to be treated as a forfeiture unless the language of the
act be so clear and unambiguous as to admit of no other reasonable
construction.
Counsel for plaintiff has called our attention to several cases
decided by the Court of Appeals of New York which doubtless have a
bearing upon this question, but which, when carefully examined, are
readily distinguishable.
Matter of Brooklyn &c. Ry.
Co., 72 N.Y. 245;
Brooklyn Steam Transit Co. v. City of
Brooklyn, 78 N.Y. 524;
Union Hotel Company v. Hersee,
79 N.Y. 454;
Farnham v. Benedict, 107 N.Y. 159. In these
cases, the legislative act did not avoid the grant upon the
nonperformance of the condition subsequent, but declared that the
corporate existence and powers of the company to act were at an
end. In other words, it fixed a time for the expiration of the
charter, and, when that time arrived, the corporation lost its
power to act or do any business beyond such as was necessary in the
process of winding up. It was not so much a case of forfeiture as
of loss of legal entity, or, as expressed in the language of the
Court of Appeals in the case in 78 N.Y.,
"in case of noncompliance, the act itself ceases to have any
operation, and all the powers, rights, and franchises thereby
granted were deemed forfeited an terminated. There was to be not
merely a case of forfeiture, which could be enforced by an action
instituted by the Attorney General, but the powers, rights, and
franchises were to be taken and treated as forfeited and
terminated. At the end of the time limited, the corporation was to
come to an end, as if that were the time limited in its charter for
its corporate existence."
More directly in point is the case of
Oakland Railroad Co.
v. Oakland, Brooklyn &c. Railroad Co., 45 Cal. 365. In
this case, an act of the legislature granting a corporation the
right of way to lay a street railroad track provided
"that
Page 139 U. S. 678
if the provisions of this act are not complied with, then the
franchise and privileges herein granted shall utterly cease to be
forfeited."
A breach of this condition was held
ipso facto to
forfeit the franchises of the corporation. A distinction was drawn
in this case between forfeitures at common law, which did not
operate to divest the title of the owner until by proper judgment
in a suit instituted for that purpose the rights of the state had
been established, and a forfeiture declared by statute, in which
case the title to the thing forfeited vests immediately in the
state upon the happening of the event for which the forfeiture is
declared.
The doctrine of these cases has not been universally accepted,
however, and in several states, notably in Massachusetts, it has
been distinctly repudiated. Thus, in
Briggs v. Cape Cod Ship
Canal Company, 137 Mass. 71, the act of incorporation of a
canal company provided that if a certain amount were not expended
in the actual construction of the canal within four months from the
passage of the act, the "corporation shall thereupon cease to
exist," and further that if a certain other amount were not
deposited by the company with the treasurer of the commonwealth
within the same time, the corporation should thereupon cease to
exist. It was declared in the opinion of the court to be
"too well settled to admit of discussion that a corporation can
be judicially determined to have ceased to exist only in a suit to
which the commonwealth is a party. The act of incorporation is a
contract between the commonwealth and the corporation. Whether the
corporation has complied with the conditions is a question of fact
to be judicially determined. The commonwealth may waive a strict
compliance with the terms of the act, and may elect whether it will
insist upon a forfeiture if there has been a breach of
condition,"
citing a number of prior cases in the same state.
In
Atchafalaya Bank v. Dawson, 13 La. 497, an act for
the incorporation of a bank provided that upon the suspension or
refusal of payment in specie for more than ninety days, "the
charter shall be
ipso facto forfeited and void." But it
was held that until the forfeiture was judicially decreed, neither
the
Page 139 U. S. 679
forfeiture nor the cause could be inquired into in another suit,
nor could the existence of the corporation be questioned
incidentally or collaterally. To the same effect is the case of
Lagrange & Memphis Railroad Company v. Rainey, 7
Coldwell 420. In this case it was held that if an act of
incorporation fixes a definite time in which the charter shall
expire, when the time for this expiration arrives, the corporation
is dissolved. But if its continuance beyond a fixed time is made to
depend upon the performance of a given condition, the
nonperformance of the condition is a mere ground of forfeiture.
"This, however, can only be taken advantage of by the state in a
proceeding in the nature of a
quo warranto, and the
existence of the corporation can never be collaterally called in
question."
It is not, indeed, always easy to determine whether a condition
be precedent or subsequent. It must depend wholly upon the
intention of the parties as expressed in the instrument and the
facts surrounding its execution. If the condition does not
necessarily precede the vesting of the estate, or if, from the
nature of the act to be performed, and the time required for its
performance, it is evident that the intention of the parties is
that the estate shall vest, and the grantee shall perform the act
after taking possession, then the condition is treated as
subsequent, and there is no forfeiture without a reentry by the
grantor or, in the case of the state, without some action on its
part manifesting an intention to resume its title. In the case
under consideration, the act, as already stated, takes effect as a
present grant, and the provision for a forfeiture in case the
company fails to complete its road is clearly a condition
subsequent.
Upon the whole, we think there is nothing to distinguish this
case from
Schulenberg v. Harriman, and that the learned
judge of the court below was correct in holding that the railroad
company had not forfeited its right to construct its road by
failure to complete the same within the time limited.
The distinction between a right of way over the public lands and
lands granted in aid of the construction of the road is important
in this connection. As to the latter, the rights of settlers or
others who acquire the lands by purchase or
Page 139 U. S. 680
occupation between the passage of the act and the actual
location and identification of the lands are preserved unimpaired,
while the grant of the right of way is subject to no such
condition, and in the construction given by this Court to a similar
grant in
Railroad Company v. Baldwin, 103 U.
S. 426, a person subsequently acquiring any part of such
right of way takes it subject to the prior right of the railroad
company. s remarked by the Court in that case, p.
103 U. S.
430:
"If the company could be compelled to purchase its way over any
sections that might be occupied in advance of its location, very
serious obstacles would be imposed to the progress of the road. For
any loss of lands by settlement or reservation, other lands are
given; but for the loss of the right of way by these means, no
compensation is provided, nor could any be given by the
substitution of another route."
The only title which the plaintiff seems to have had to the land
in question was by virtue of an appropriation or occupation of the
same under the Act of July 26, 1866, "granting the right of way to
ditch and canal owners over the public lands, and for other
purposes." 14 Stat. 251. But as his occupation dates only from May,
1879, long after the defendant company had become entitled to its
right of way over these lands by virtue of the Act of July 25,
1866, his claim was clearly subordinate to that of the railroad
company. Under this act, the plaintiff acquired no right to any
portion of the public lands until his actual taking possession of
the same for the purpose of constructing a ditch, and in so doing
he took the risk of encroaching upon the right of way which the
railroad company might thereafter select for the purposes of their
road. This very question arose in the Supreme Court of California
in the case of
Doran v. Central Pacific Railroad Company,
24 Cal. 245, in which the court observed, p. 259, that
"the grant by Congress of the right of way over any portion of
the public land to which the United States have title, and to which
private rights have not been attached under the laws of Congress,
vests in the grantee the full and complete right of entry for the
purpose of enjoying the right granted, and no person claiming in
his own right any interest in the lands can
Page 139 U. S. 681
prevent the grantee from entering in pursuance of his grant or
can recover damages that may necessarily be occasioned by such
entry."
We regard this exposition of the law as sound and the case as
exactly in point in this connection.
2. With regard to the question of estoppel, the complaint
alleges that the defendant went into possession of that portion of
the plaintiff's ditch across which its road was constructed under a
deed from plaintiff and his tenant in common for a consideration of
$250 paid, and assented to the condition therein contained against
impairing or destroying said ditch, the only right conveyed being a
license "to enter on said ditch and construct and operate its road
over the same" upon such condition. The contention of the plaintiff
is that, in receiving this deed and entering into possession, the
relation of landlord and tenant was created between them, and not
that of vendor and vendee, so far as the doctrine of estoppel is
concerned. But as the deed was the conveyance of a perpetual right
for a solid consideration therein expressed, and there was no
covenant for the payment of any rent nor for the redelivery of
possession, we think it should be regarded as creating the relation
of grantor and grantee between the parties thereto. We have already
found that the title of the company to its right of way upon the
location of its route related back to the date of the act, and
hence that when it took possession of the land in question,
plaintiff had no title thereto which he could set up against the
company. Had the defendant not accepted the deed from the
plaintiff, it might, under our ruling upon the first point, have
treated him as a trespasser. The real question, then, is whether
the defendant is placed in a worse position by having accepted the
deed from a party who had no title to the premises he assumed to
convey -- the defendant having taken the conveyance under a
mistaken view of the law applicable to the case.
It is conceded that, as a general principle, the grantee in a
deed of conveyance is not estopped to deny the title of his
grantor, and unless this case be an exception to this rule, it will
necessitate an affirmance of this judgment. The rule was first
applied by this Court in the case of
Blight's
Lessee v.
Page 139 U. S. 682
Rochester, 7 Wheat. 535, in favor of the grantee, who
was permitted to show that the person from whom he derived title
was an alien and, under the laws then existing, incapable of
transmitting by inheritance the title to lands in this country. In
Merryman v.
Bourne, 9 Wall. 592, it was stated that the vendee
"holds adversely to all the world, and had the same right to deny
the title of his vendor as the title of any other party," and in
Robertson v. Pickrell, 109 U. S. 608, it
was held, in an elaborate opinion by MR. JUSTICE FIELD, that
defendants, who held under a deed of a life estate, were not
estopped from setting up a superior title. Cases in the state
courts to the same effect are
Comstock v. Smith, 13 Pick.
116;
Osterhout v. Shoemaker, 3 Hill 518;
Clee v.
Seaman, 21 Mich. 287, and
Sparrow v. Kingman, 1 N.Y.
242.
Upon the other hand, there are doubtless some exceptions to the
rule arising out of circumstances which would render the
repudiation of the grantor's title "a breach of good faith and
common honesty" on the part of the grantee. Thus, he cannot refuse
to pay the consideration named in his deed, nor probably to perform
any other strictly personal covenant, nor, as remarked by the Court
in
Robertson v. Pickrell, can the grantee, in a contest
with another, while relying solely upon the title conveyed to him,
question its validity when set up by the latter. In other words, he
cannot assert that the title obtained from his grantor, or through
him, is sufficient for his protection, and not available to his
contestant. Where both parties assert title from a common grantor,
and no other source, neither can deny that such grantor had a valid
title when he executed his conveyance. Thus, in
Wilcoxon v.
Osborn, 77 Mo. 621, it was stated that the rule was not
applicable to a case where the only title asserted by the grantee
was the precise title he had acquired from the grantor, nor to a
case where both parties claimed from a common source, and the title
was identical in that source. In that case, a county, having
received the purchase money for a tract of swamp land, caused a
deed to be made to the purchaser by the county commissioner. On the
same day, the county made a loan of school funds, taking as
security a mortgage
Page 139 U. S. 683
on the land. Subsequently the county caused the mortgage to be
foreclosed. The defendant derived title through this foreclosure.
It was held, as against the heirs of the original purchaser, that
the defendant was estopped to deny the validity of the
commissioner's deed. So, in
Phelan v. Kelley, 25 Wend.
389, it was held that where a person having a possessory title to
lands dies in possession leaving several children, his heirs at
law, who succeed to such possession, it was not competent for one
of such heirs, who had obtained the exclusive possession of the
whole of the premises, to defeat a recovery by his co-heirs of
their proportional parts or shares by setting up a title acquired
from the owners of the land; that to avail themselves of such
title, they must first surrender possession to their co-heirs, and
then bring ejectment. And in a number of cases it has been held
that where one takes by descent as a co-heir or tenant in common he
cannot show, in an action of ejectment by his co-heir, that his
ancestor had no title.
Jackson v. Streeter, 5 Cowen 529;
Proprietors of Braintree v. Battles, 6 Vt. 395.
But the consequences of treating this case as an exception to
the general rule are somewhat serious. If, as we hold, the
defendant had the prior right to this land, it was under no
obligation to treat with the plaintiff, or pay him for the
disturbance of his possession which was unlawful as against the
company. Has it by this deed disqualified itself forever from
asserting the right that it would have possessed had it not done
this? We think not. Assuming, as some of the cases indicate, that
before disputing the title of his grantor, the grantee is bound to
surrender his possession taken under the deed, such requirement is
obviously inapplicable to a case like this, where the only
possession consists in the disturbance of a water right or ditch
claimed by the plaintiff by the construction of the road across
such ditch. It could only be restored by the destruction of the
road and the rebuilding 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
Page 139 U. S. 684
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 Wash.Real Property 98;
Gardner v. Greene, 5 R.I. 104;
Osterhout v.
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.