Burrows v. Madison Park & Pleasure Drive Ass'n

Doerfler, J. Plaintiff’s counsel claim that the eighth provision of the will above set forth constitutes a condition subsequent and that the Association failed to maintain said tract for park purposes, as was designed by the testator, and that such failure constituted a breach of the condition subsequent, and that the tract thereupon reverted to the heirs at law of the deceased. Assuming that the provision of the will referred to creates a condition subsequent, was such condition breached ? Conditions subsequent are most strongly construed against the grantor, and a forfeiture will not be enforced unless clearly established. In Mills v. Evansville Seminary, 58 Wis. 135, 15 N. W. 133, a conveyance was made to a corporation upon condition that the land should be used as a site for a seminary building and should revert to the grantors when it should cease to be used for such purpose. The land was so used for several years, but in 1874, owing to a lack of funds and patronage, the seminary ceased to be maintained. In 1876, at a meeting attended by only a minority of the voters of the corporation, a resolution was adopted reciting that the seminary had been abandoned as [644] an institution of learning, and empowering the trustees to convey the land to a manufacturing corporation. The land in question was deeded to the corporation, but the grantee did not take possession, and subsequently abandoned its purpose and. "reconveyed the premises to the seminary. Thereafter the seminary expended a considerable sum of money in repairing the buildings and again resumed the use of the property for seminary purposes. The original grantors thereupon demanded the surrender of the land to them as reversionary owners. In its opinion in the Mills Case, supra, the court said: “It is doubtless true as claimed by defendants’ counsel that courts do not hasten to seize upon mistake or neglect or even misuser of property to adjudge a forfeiture in cases of this nature. Now, according to the testimony of Mr. Mills, the condition was that the premises should be used as a site for a seminary building and grounds only, — the title to revert to the grantors when the property should cease to be used for seminary purposes. The condition imposed upon the defendant corporation the duty of keeping up and maintaining, or causing to be kept up and maintained, an educational institution on the land — a school or academy where young persons could be instructed in the several branches of knowledge and science. But the parties doubtless expected that there would be interruptions in the school for one reason or another and for longer or shorter periods. But such interruptions would not operate as a breach unless they amounted to an absolute and final ■ abandonment of the property, for seminary purposes.” In Bonniwell v. Madison, 107 Iowa, 85, 88, 89, 77 N. W. 530, it is held: “It is also a well established rule that, when maintenance or use is a part of the condition, there must be such neglect to maintain as to indicate an intention not to comply, to constitute a breach of condition. Osgood v. Abbott, 58 Me. 73; Mills v. Evansville Seminary, 58 Wis. 135, 15 N. W. 133; Rowe v. Minneapolis, 49 Minn. 148, 51 N. W. 907; Hurto v. Grant, 90 Iowa, 414, 57 N. W. 899. In other [645] words, it must be shown that the spirit and purposes of the condition have been wilfully disregarded by the grantee, to establish such breach as will authorize a re-entry by the grantor. Jones, Real Prop. sec. 680, and cases cited.” In Rose v. Hawley, 141 N. Y. 366, 378, 36 N. E. 335, it is held: “It is not enough to show in this way that the letter of the condition is violated, but it must appear that its true spirit and purpose have been wilfully disregarded by the grantee.” The foregoing citations contain the proper legal doctrine with respect to the issue involved herein. The question, therefore, to be determined is, first, whether there is evidence to indicate an abandonment of the property for park purposes, or, secondly, whether the spirit and purposes of the condition have been wilfully disregarded so as tp establish a breach. There is no evidence indicative of an abandonment. There is nothing to indicate that the Association does not consider the property in question a valuable acquisition for its general system of parks, or that it has failed to do what might be considered necessary to improve this property for. park purposes, under the facts as they existed. It may be conceded that the Association did not expend as large a sum of money proportionately upon this park as it did upon the Madison city parks, and that the improvements made thereon were rather limited. Parks, however, are designed not solely to serve the purpose of show places, but a^re intended for the pleasure and recreation of the public, and, in a large measure, for the special benefit of that portion of the public who inhabit the territory in its immediate proximity. The object to be attained is to secure the greatest benefit to'the'greatest 4 number, and unquestionably the Association, with its limited means, with that object in view, has directed its primary attention to the improvement and maintenance of those parks situated within the corporate limits of the city. The [646] deceased was a member of the Association at the time he drafted the will and up to the time of his death. It must be presumed that he had ■knowledge of the condition of the finances of. the Association, and that to develop and maintain a system of public parks involved primarily the collection and acquirement of the necessary funds to carry out this purpose. There is nothing in the devise that is indicative of any expectation on the part of the testator for the Association to act otherwise than in accordance with its financial ability and its general obligation to the entire system of parks and pleasure drives. The evidence does not disclose on the part of the public at large a general demand for greater improvements during the period in which the park was held under the devise. It can also be said that, from observations made with respect to other parks, their development and completion in almost every instance have been the subject of years of effort. The accomplishment, as a rule, keeps pace with the general public demand. With these thoughts in view, can it logically be said that the Association has been guilty of any act which would indicate either that it intended to or had abandoned the property for park purposes, or that it had wilfully breached the condition, assuming that such condition exists as a part of the devise? In the final analysis, the subject of a breach of a condition subsequent to a large extent depends upon the intentions of the devisor or grantor and of the devisee or donee, taken in connection with all the surrounding facts and circumstances in the case. During a large portion of the time during which this tract of land was held by the Association abnormal conditions existed in the country. Prior to our entry into the war for a period of three years, every effort was strained on the part of our citizenship to pursue productive industry, and during the war and subsequent to such period our resources were heavily taxed to [647] successfully maintain the war and to readjust economic conditions. Taking into consideration all the surrounding facts and circumstances, we are thoroughly convinced that'the nonsuit in the lower court was properly granted. Whát has heretofore been said and held herein is upon the assumption that the eighth provision of the will created a condition subsequent. Whether such provision created such condition, or whether it operated to create a trust, it is not necessary for the court to decide; neither is it necessary to settle the contentions of the two defendants, each of whom claims the reversion in the event of a breach. We therefore hold that the judgment of the lower court should be affirmed. By the Court. — It is so ordered.