Argument for Plaintiff in Error. grant of the right of way of July 25, 1866, set forth in such defence. (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 on or before the first 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 11 Sawyer, 479, and 26 Fed. Rep. 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. Mr. John H. Mitchell for plaintiff in error. It is conceded that but for the qualifying provisions of section 8 in the act of July 25, 1866, this grant must be held to be a grant in præsenti, under and by virtue of which the lands granted passed directly as of the date of the grant to the company; and that the conditions of the grant in such event are conditions subsequent, and in such case the grant can only be defeated by a failure to comply with the conditions subsequent, and in which case there must be a reëntry upon the part of the government. But it is respectfully insisted that the words of present grant in the second section of the act are so qualified by the provisions of section 8, that upon a proper and fair construction of the act as a whole, the conditions, and all the conditions, so far as they relate to the right of way and the completion of the road within a certain time, must be held to be conditions precedent, and not conditions subsequent. And not only so, but being conditions precedent, such failure to comply with them within the time required by the act, especially in view of the provision that in such event the act should be null and void, operated ipso facto as a termination of all right to acquire any further interest in any lands not then patented. It will be observed by the court that the provisions of this act as to the effect of a failure to comply with the conditions, whether they be regarded as conditions subsequent or condi Argument for Plaintiff in Error. tions precedent, are essentially different in phraseology and in legal effect from the great body of Congressional grants to railroad companies. A striking similarity, however, will be found between the act under consideration in this respect and the act granting lands to aid in the construction of railroads in the Territory of Minnesota, and which came under consideration in this court in the case of Rice v. Railroad Co., 1 Black, 358, and in which case this court held that although words of present grant were used in the granting section which, had they stood alone, would have passed the title as of the date of the grant, they were so qualified by subsequent provisions of the act as to prevent the same from being a present grant. This case was approved in St. Paul & Pacific Railroad v. Northern Pacific Railroad, ante, 1. The granting words in the Minnesota act and those in the grant under consideration are exactly alike, but as in that case the court found in the subsequent language an intent on the part of Congress to limit and modify the meaning of the words "that there shall be and is hereby granted," so in this case we have the same intent expressed in somewhat similar but much more emphatic language, which makes the conclusion irresistible that no present estate was granted or intended to be granted by Congress to these railroad companies. In presenting this case counsel are not unmindful of the rulings of this court — notably in the case of Railroad Co. v. Baldwin, 103 U. S. 426-giving construction to an act of Congress, then under review, granting right of way to a railroad company somewhat similar to the act making grant to the defendant in so far as it relates to the nature and effect of the grant of right of way over the public domain; and in discussing this case there is no disposition to contest the correctness of the rule laid down in the case referred to, and perhaps in some other cases since that time, as applicable to the particular grants referred to, and as applicable to the facts presented in connection therewith, as to progress made by the companies respectively under those grants where rights of settlers were supposed to have attached. Argument for Plaintiff in Error. Our contention is that the act of July 25, 1866, under which the defendant claims, is radically different from the act discussed in 103 U. S. supra, and also that the route or line of road under the former had not, as in the adjudicated cases, been established. The act is different in this, as we have seen, that it provides in terms, not merely that on a failure to build the whole of the road by July 1, 1880, all lands not conveyed by patent to said company at the date of any such failure shall revert to the United States, but also that the act itself shall be "null and void." No such clause as this apарpears, so far as I have been able to examine, in any of the other acts of Congress making grants of public lands or right of way over the public lands to any railroad company save in the one amendment, supra. It was clearly the opinion of Congress, it would seem, that in the event of a failure upon the part of the company to build the whole road within the time specified, viz., July 1, 1880, to take it out of the power of the company to do a further solitary act under or in pursuance of the act of Congress. It was clearly the intention of Congress that the company in such a case should be entitled to the lands patented to it, but in so far as any right upon the part of the company was concerned to enter upon the public domain, or any part of it, for the purpose of locating or constructing its road after such failure to complete the road within the time specified, it was the intention of Congress to destroy it by declaring, as it did, that the act itself should be null and void. In other words, the act, taken as a whole, simply conferred a power upon the company, to be exercised within a certain time and upon certain conditions. A failure to exercise the power within the time was an end of the whole business, and then the act itself under which the company could act ceased to exist, because the power that created it declared that it should then be dead-null and void. This is not the case, therefore, it is respectfully insisted, of an estate vested under a present grant, and subject to forfeiture for breach of a condition subsequent, but requiring further proceedings to enforce the penalty. But it is the case of a legislative power not attempted to be Argument for Plaintiff in Error. exercised until, by the very terms of the instrument creating it, the time within which it could be exercised had expired. If this power to "lay out, locate and construct" had been exercised during the prescribed term of its existence, it would have given effect to the granting words in the original act and vested the legal title to the two-hundred-feet right-of-way strip in the defendant. But as none of these steps were taken during the continuance of the power, no estate ever vested in defendant, and there is no ground for the application of this doctrine. That the authority to act terminated with the expiration of the time fixed by the amendment of June 25, 1868, is clear from the language used, and well settled by judicial decisions. In the matter of the Brooklyn, Winfield &c. Railway Co., 72 N. Y. 245; Brooklyn Steam Transit Co. v. Brooklyn, 78 N. Y. 524; Union Hotel Company v. Hersee, 79 N. Y. 454; Farnham v. Benedict, 107 N. Y. 159. It is conceded in the pleadings, and also by the court below in the opinion, that the Oregon and California Railroad Company, defendant, had not completed its road, even so far as the location of the premises in question, within the time prescribed by Congress for its completion; nor was it completed to that point, as clearly appears, on September 3, 1883, as it was on that date the defendant purchased from plaintiff and his tenant in common the right to construct and operate its road at a point between the termini thereof across the ditch of the plaintiff. The same rule was recognized as correct with reference to the provision in a special act, "the franchises thereby granted shall be null and void, unless the corporation shall commence the work of constructing the hotel within two years from the passage of this act, and complete the same within four years. from the time of commencing the construction thereof;" but held inapplicable in view of an amendment extending time for the performance of these acts. Union Hotel Company v. Hersee, 79 N. Y. 454, 457, 459. See also Brooklyn, Winfield & Newtown Railway, 81 N. Y. 69; Farnham v. Benedict, 13 N. E. Rep. 784; Railroad Co. v. Alling, 99 U. S. 463. Argument for Plaintiff in Error. The decision in Railroad Co. v. Baldwin, 103 U. S. 426, cited and relied upon below, involves no such issue. There the railroad company had located its right of way within the time prescribed, and while it still had the power to do so, and the court held that such location related back to the date of the act making the grant, and cut out intervening claims. But the effect of such authorized location was to vest an estate in the lands covered by the right of way in the railroad company and bring the case within the rule as to forfeiting vested interests for breach of subsequent conditions. That a valid location pursuant to the authority conferred by the act making such a grant is necessary to vest an interest in the particular tracts of land is undeniable. This proposition is conceded everywhere. Van Wyck v. Knevals, 106 U. S. 360. An expression in the opinion of this court in Schulenberg v. Harriman, 21 Wall. 44, is cited in the opinion of the court below in the present case as favoring the conclusion there announced. But there was no issue in that case involving the point, and what is said there as to the continuance of a power to sell in the face of an explicit prohibition in the act creating the power is simply obiter. The second ground relied on by plaintiff to avoid the defence interposed is that of estoppel. The complaint alleges, and the separate defence in the answer demurred to admits, in effect, that defendant went into possession of the portion of plaintiff's ditch crossed by its railroad track under a deed from plaintiff and his tenant in common for the consideration of $250 paid, and assenting to the condition therein against impairing or destroying said ditch, the only right conveyed being a license "to enter on said ditch and construct and operate its railway over the same" upon said condition. The complaint further alleges that defendant utterly destroyed the ditch in violation of this condition. And this, too, the defence admits. The acceptance of possession under this deed, it is submitted, created the relation of landlord and tenant between them, and not that of vendor and vendee, so far as the doctrine of estoppel is concerned. The plaintiff still retained his interest in the |