Montgomery v. Kasson

Citations

• 16 Cal. 189

Syllabus

<p>The third section of the Act “ to provide for the Construction of Canals, and for Draining and Reclaiming certain Swamp and Overflowed Lands in Tulare Valley,” passed April 11th, 1857, is a grant upon condition precedent, and not upon condition subsequent, and passes no estate to the grantee, until perform' anee of the conditions annexed—that is, until the reclamation of the lands.</p> <p>This grant is a contract between the State and the grantees, by which the State grants certain lands, upon condition of work to be performed; the grant to take effect when the work is done. It is a contract by which rights may be acquired absolutely, upon performance of the acts specified as the consideration moving to the State.</p> <p>The grantees under the act, having surveyed the lines of the canals mentioned therein, and commenced the work of excavating one of them, and continued the same within and during the year after the passage of the act, have brought themselves within the first section thereof, and secured the right to proceed with the reclamation; and, when this is accomplished, to take one-half of the lands. And if, within the five years limited in the act, the reclamation be effected, the title to the alternate sections designated will vest in the grantees absolutely.</p> <p>With the contract, and the rights of the grantees thereunder acquired by this part performance of its consideration, the Legislature cannot interfere. They are protected by both the Federal and the State Constitutions.</p> <p>The Act of April 20th, 1858, repealing the Act of April 11th, 1857, making this grant, and declaring the rights and privileges thereunder forfeited, is unconstitutional and void.</p> <p>Where one of the grantees under this Act of 1857 enters into an agreement to sell to defendant five of the sections of land embraced within the act, and covenants that he and his associates will execute a good and sufficient deed to the defendant, upon payment of the several notes given as