Opinion of the Court. 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, that 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 of the court below: "It is to become 'null' only so far as to allow the grantor to resume 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 condi Opinion of the Court. tion, 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 to 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 non-compliance, the act itself ceases to have any operation, and all the powers, rights and franchises thereby granted were deemed forfeited and 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 California, 365. In this case an act of the legislature granting a corporation the right of way to lay a street railroad track provided "that, Opinion of the Court. if the provisions of this act are not complied with, then the franchise and privileges herein granted shall utterly cease and 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 Opinion of the Court. 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 reëntry 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 Opinion of the Court. 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. As remarked by the court in that case, p. 430, "If the company could be compelled to purchase its way over any section that might be occupied in advance of its location, very serious obstacles would be often 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 California, 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 |