The condition annexed to the deed of trust from complainants to John Galt, the trustee, seems to have a two-fold object; first, as a condition precedent, its performance was necessary, to raise the power and duty in Galt, the trustee, to convey the premises to defendants ; and, second, as a condition subsequent, to defeat or destroy the estate in fee conveyed to Galt in trust, and to revest it thereupon in the grantors.
How this condition was, that the defendants should, “ on or before the first day of October, 1855, build and complete a good and sufficient dam, composed of rocks and rock,' hewn timber and gravel, across said river (Bock river), at said town of Sterling, and a canal or head race connected, therewith, on the west side of said river, in the manner, and for the purposes hereinbefore and in said act specified and enumerated.” The purposes expressed in the act of incorporation are, to obtain, with as little delay as practicable, a “ slack-water navigation on Bock river, within this state, and for the production of hydraulic power by the same” (see Charter Acts, 1849, p. 136, Sec. 1); and that recited in the deed is the desire of complainants to “ secure the completion of said dam on or before the first day of October, 1855, and the construction of a canal or head race by said company, on the west side of said river, connected with said dam, for hydraulic purposes.”
There is no doubt, uncertainty, or ambiguity in this deed. The intention and the meaning are alike clearly expressed. The fee passed to Galt as a trustee. It was subject to a condition subsequent, by the non-performance of which the estate in Galt is destroyed, and revests in the grantors. This is to be taken strictly, as is said, 1 Greenlf. Cruise on Beal Property, Title 13, Cap. 2, Sec. 1; 1 Inst. 219 b. We should construe the covenant strictly, and not enlarge it to work a forfeiture and destruction of an existing estate. The condition only required the completion of a dam and head race, on or before 1st of October, 1855, for hydraulic purposes. How whether the completion of a dam, and a canal or head race, is sufficient'to produce hydraulic power, or is merely a certain degree of progress toward it, is a question of fact. If the dam, and canal or head race, were completed on the day, the condition is performed, whether thereby a power useful for manufacturing arises, or is produced, or not. Proof was taken, and witnesses differ, whether there was a power existing, and as to the quantum of that power, according to the state of the work on the 1st of October, 1855. We deem it of little importance, under this condition, whether a dam and head race produce an efficient hydraulic power or not, provided the dam and head race were completed, by the time and in the manner specified. But we think the evidence shows that considerable power existed, as the works stood on the 1st of October, varying from five or six to thirty, forty or fifty run of stone. In another point of view, it becomes very important what power existed, in order to determine whether the head race was completed. And in determining this, it is necessary to know what a head race is. The witnesses differ, somewhat, in defining what a head race is. Some describe it as that part of the water channel or way, which leads from the pond or reservoir to the machinery to be driven; others confine it to that portion from the pool to the bulkhead and gates, by which the water.' is regulated, controlled or excluded from the race below, and machinery along it. The former definition is more nearly in the language of Mr. Webster, and is, doubtless, technically correct.
When Ave come, however, to ascertain the particular mean-' ing of parties to contracts, we must look to surrounding circumstances. Was there such a completion of a head race as to afford an efficient and useful hydraulic power on that day —a race completed from the pond, to where machinery could be used ? The witnesses state the fact to be, that there were twenty-two feet of race above the bulkhead and gates, and twenty-four feet below it, and that there was room to use it by erecting a mill over the race, or by a chute from it and through a mill on the íúver side.
Technically the race is a head race doAvn to the machinery. In this sense the head race is never completed while it may be extended, and additional machinery supplied with power by the quantity contained in the pool and conveyed by the race. In this sense, its completion must depend on the exhaustion of the fountain, ór the capacity of the race to conduct it. Its extension and completion, in this sense, must depend upon the demand of the power, as the wants of the community increase with its growth.
But the equity of complainants does not demand this interpretation. Sucia coxild not have been their meaning or intention, surrounding circumstances forbid it. We should rather understand their meaning to be, such a substantial completion of dam and head race, as to produce an hydraulic power, to make a beginning in manufacturing, upon which, as a base, an increase, an extension of power could be created by extending the head race to make room, as power was demanded from time to time. Had more than this been intended, the complainants should not have contented themselves with a condition- for the completion simply of a head race or canal, but shoitld have stipulated for a given number of feet of race, or a given quantum of power. Hot having done this, we must hold the condition fulfilled, whether it be subsequent to defeat the estate granted to the trustee, or precedent, to raise his power to convey to defendants, by the substantial completion, bona fide, of such dam and canal or head race, as to produce an efficient, useful power for manufacturing purposes on that day. This is sworn to be the fact by the defendants’ witnesses, most of whom appear to be experts as engineers, mill wrights, and millers, men practically acquainted with the form, manner and power of the works of which they speak. We must believe them, and that they know that whereof they affirm. That there was a slight mistake in the degree of bracing, and the strength of a gate post in the head race, or the unexpected settling of the center dam, can have little weight. For the whole testimony shows that the work was commenced and carried on bona fide and substantially, and the decided weight of testimony is, that it was completed by the day.
We deem the dam to be good and sufficient, notwithstanding it settled, and the same remark will apply to the head race, ■notwithstanding a post gave way for want of bracing, and a flood carried away a gate of the bulkhead. Were this a covenant in the contract of the builders, we should not feel warranted in declaring such deficiency a breach to work a forfeiture.
The apparent interest of complainants in the work, is substantially secured by establishing a manufacturing power for the present, from which their property may be enhanced in value, and their, wants supplied by the machinery that may be carried by the power.
Construing the condition as a covenant, on the part of defendants, we think the evidence shows it substantially and fully complied with or performed. It is difficult to resist the conviction, that the location of the dam, and not its completion, is the real and true ground of complaint and controversy. If so, complainants are remediless. For they have not, as they might, have protected themselves by a covenant, as to its location. Having left its location, and relocation, to the discretion of the company, they have no legal or equitable redress or remedy against its exercise. We can hear and relieve no complaint not thus founded.
We fully recognize the principle, that parties may make time the essence of their contract (Kemp v. Humphreys, 13 Ill. R. 576); and that estates in fee, for life or years, may depend, for their creation or destruction, or the power to create or destroy them, may depend upon the performance of conditions precedent or subsequent. Hill on Trustees 478, 479 ; 5 Serg. and Rawl. R. 380 ; 15 Yermt. R. 762; 2 Edwards Ch. R. 84, 142; 12 Barb. S. C. R. 440; 1 John. Cas. 125; 3 Littell R. 230; 9 Martin R. 117 (221); 2 H. Hamp. R. 120; 1 Conn. R. 79; 5 Mass. R. 320; 8 Pick. R. 288; 21 Pick. R. 417. Yet we do not think the proof authorizes the application of the principal here, to sustain the complainants’ bill. There is no breach to prevent the creation of the power in Galt, the trustee, to convey, nor to destroy the estate in fee, in trust in him.
The court below did not err, therefore, in dismissing the bill for want of equity.
Decree affirmed.