Behlow v. Southern Pacific Railroad , 130 Cal. 16 ( 1900 )

HARRISON, J.

Suit to quiet title. The land involved in the action is a strip forty feet in width, lying within block 55 of Bamona, in the county of Los Angeles. Both parties derive title under a common grantor, the San Gabriel Wine Company. The conveyance to the defendant’s grantor, the'San Gabriel Valley .Bapid Transit Bailway Company, was made February 7, 1888, and granted, bargained, and sold to it, its successors and assignees forever, the strip of land described in the complaint, and other lands, and contained this provision: “The conveyance of these lands is made for railroad purposes only, and, if not so used, then it is to revert to the parties of the first part.” The conveyance to the plaintiff was made March 20, 1888, and was a grant of the entire block 55. These conveyances were introduced in evidence, and in addition thereto the parties made an agreed statement of facts upon which the cause was submitted to the court. In this stipulation it was agreed that prior to the commencement of this action the Southern Pacific Bailroad Company had acquired all the rights of the San Gabriel Wine Company and of the San Gabriel Valley Bapid Transit Bailway Company. Judgment was rendered in favor of the defendants, and a motion of the plaintiff for a new trial was denied. From this order she has appealed.

The aforesaid grant from the San Gabriel Wine Company to the San Gabriel Valley Bapid Transit Bailway Company created in the grantee an estate in fee in the lands described in the complaint, determinable upon the nonperformance of the -condition therein specified. This being a condition subsequent, its terms are to be strictly construed. “Conditions subsequent are not favored in law and are construed strictly because they tend to destroy estates.” (4 Kent’s Commentaries, 129.) Forfeitures are not favored in law, and conditions providing for the forfeiture of an estate are to be construed liberally in favor of the holder of the estate and strictly against an enforcement of the forfeiture. (Civ. Code, sec. 1442.) “Conditions subsequent, especially when relied on to work a forfeiture, must be created by express terms or clear implication, and are construed strictly.” (Washburn on Real Property, 447.) By the terms of the above conveyance the only condition under which the land, is to revert to the grantor is in case it shall not be used for railroad purposes, and it was agreed as a fact herein that the Southern Pacific Bailroad Company has, from time to time, ranging from daily use to use every few months, but at no stated times, operated gravel trains for its own use and for hire on said Bapid Transit Bailway, across and over the premises described in the complaint, to the junction of said transit railway with the defendant’s overland or trunk line at Ramona, from which point said gravel trains were hauled over said trunk line eastward and westward to various points •thereon.

Upon the fact thus stipulated it must be held that a breach of the condition named in the grant has not been shown. The terms of that condition do not limit or define the extent of the use, or the character or frequency of the trains that are to be operated over the land; and it cannot be maintained as a proposition of law that the running of gravel trains, as aforesaid, is not a use of the land for railroad purposes.

The provision in the above conveyance to the San Gabriel Rapid Transit Railway Company that, “as a further consideration for the grant of this land, the parties of the second part agree to place two stations, at one of which all trains must stop —location of stations to be selected by the party of the first part,” is not available to defeat the estate, created by the grant. This provision' is not made a condition upon which the estate is granted, hut is merely a personal covenant on the part of the grantee.

The plaintiff is not entitled to invoice the provisions of the act of April 15, 1880. (Stats. 1880, p. 43.) She has made no reference to the act in her complaint, nor has she alleged or shown any facts under which she can avail herself of the provisions of this act. In the agreed statement of facts it appears that the Southern Pacific Railroad Company acquired the rights of the Rapid Transit Railway Company “prior to the. commencement of this action,” and that prior to such acquisition the Rapid Transit Railway Company operated regular passenger and freight trains daily over the road. The date at which the Southern Pacific Railroad Company acquired the property is not shown in the record, and consequently it does not appear that there had been, for six months prior to the commencement of the action, any failure to operate trains upon the road as required by the act of 1880.

The order is affirmed.

Garoutte, J., and Van Dyke, J., concurred.