DISSENTING OPINION
Blume, J.,dissenting.
In 1918 J. M. Carey and Brother conveyed to the City of Casper the block of ground in question in this case, to be used for a city hall and park and for no other purpose whatever. The deed recited a consideration of ?1.00. So I take it that the consideration was nominal and that the conveyance was actually a gift to the city of Casper upon the conditions mentioned therein. It was perhaps intended that the city hall and the grounds surrounding should be a sort of monument to the memory of Joseph M. Carey, at one time governor of, and at one time United States Senator from, this state. The building was erected and used till about 1940 when it was abandoned as a city hall (see below), and, according to the pleadings before us, all the principal offices of the city were removed to what is called a city-county building, a half mile away from the city hall. The premises in question are now used substantially for rental purposes, and possibly partially for park purposes if the surrounding vacant ground may be considered as a park, which is doubtful. I do not say that a really temporary use for other purposes *485than those agreed on would be fatal. But the abandonment of the city hall as such in this case had continued for some seven years when this action was brought. That is an indication of permanent abandonment. See Trustees of Union College vs. City of New York, 173 N. Y. 38, 65 N. E. 853, 93 A. S. R. 569. The fact that the city joined in the construction of a city-county building, as appears from the pleadings, show almost conclusively an abandonment of the city hall as such for the forseeable future. Moreover, if in truth the abandonment was merely temporary, that fact was within the peculiar knowledge of the city, and it should have been put upon its defense in connection therewith.
While it may not be practical to give a precise definition of city hall as applicable to all situations, the general meaning is well known. In New England, where town meetings prevailed, it was the building where the citizens assembled for legislative and executive transactions. In other parts of the country, it is the building in which the legislative department of the city, and at least part of the principal executive officers perform their official functions. Websters New International Dictionary defines it as “a chief municipal building of a city.” The Dictionary of American English on Historical Principles, Volume 1, defines it as “a building in which the principal officials of a city have their offices.” Hence, the monument to the memory of Joseph M. Carey, if such was the intendment of the conveyance of 1918, is gone, and that within the short period of approximately twenty years.
In 1938 the parties, in writing, agreed to substitute a different condition subsequent for that contained in the deed of 1918. The substituted condition subsequent is as follows (leaving out unessentials) : “Provided that said real property * * * shall be used for the *486maintenance thereon of a city hall building * * * or the construction and maintenance thereon of city-county building * * * or for public park purposes and for no other purpose whatsoever * * *. It is further agreed that in the event said property or any part thereof, is disposed of or used for any purpose other than those herein provided, title to said property shall revert to party of the first part, its successors or assigns.” Then follows a clause making the restrictions for use binding upon the successors and assigns of the city and county.
This provision is about as strong and explicit a condition subsequent as could be drawn. And it is clear that it was violated at least in part when the premises were abandoned as a city hall, as heretofore stated, and when the building was used, in the main, for rental purposes. It is true that courts dislike conditions subsequent which result in forfeiture of the estate conveyed. At the same time they cannot afford to encourage clear breaches of a contract which the parties have made.
Counsel for the city argues that the proviso in the agreement of 1938 was executory that is to say that it should not be in force unless the county should participate in the erection of a city-county building on the premises in controversy. I fail to see any indication in the agreement that such contention is tenable. The agreement recites among other things (leaving out unessentials) : “Whereas it may be desired hereafter to construct and maintain upon said premises a city-county building * * *. Now therefore * * * the party of the first part (J. M. Carey and Brother) consent and agree that the covenants contained in the said warranty deed of June 27, 1918 * * * shall be amended and modified by the substitution therefor of the following to-wit.” Here follows the proviso already mentioned. The *487agreement was evidently made at the request of the City of Casper, and it was then apparently hoping that the county of Natrona would join in the construction of a city-county building on the premises. J. M. Carey and Brother consented to the enlarged use. So far as the parties to the agreement were concerned, the agreement was fully executed. So far as they were concerned, nothing further could be done. J. M. Carey and Brother could not be held responsible that the county subsequently refused to join in the construction of a city-county building on the premises here involved. The agreement was not made conditional on that occurrence. It could easily have been made so, if that had been the intention. The proviso of 1938 was substituted for the proviso or condition of 1918, so that it is difficult for me to see how the substituted proviso or condition could still continue to exist, as claimed by counsel. Substitution means to put one thing in place of another.
It would be more intelligible to me, if it were contended that after the county of Natrona failed or refused to join the city in constructing a city-county building on the premises, there was a want or failure of consideration for the more clean-cut proviso of 1938. No such contention is made, and it is difficult for me to believe that it would be good. J. M. Carey and Brother agreed that the premises might be used for the construction and maintenance of a city and county building. That was clearly an enlarged use over and above mentioned in the proviso or condition of 1918, and I fail to see any basis for the claim that that was not sufficient consideration for the agreement of 1938. It may be, from the standpoint of the present, that the city should not have entered into that agreement. But courts do not rewrite contracts which parties have made. Judging from the recitals here, the city then *488had not come to a definite conclusion that it would join with the county in the construction of a city-county building, or at least at the place where it was finally built. The recital is that “it mwy be desired hereafter to construct and maintain upon said premises a city and county building.” It apparently, as already stated, hoped that this would come about. And to create a basis for negotiations with Natrona county, it desired to have the agreements of 1938. J. M. Carey and Brother furnished that basis, which the city otherwise would not have had. Hence, I consider the agreement of 1938 controlling therein, and that would necessarily, as the case now stands, lead to a reversal of the judgment herein.
I ought not, perhaps, altogether omit reference to cases which hold that an agreed use is not intended to be a perpetual use. The cases on the subject are not in harmony. See Annotation 7 A. L. R. 817. One of the latest cases on the subject, and a well reasoned case, is Rosecrans vs. Pacific Elec. Ry. Co., 21 Cal. 2d 602, 134 P. 2d 245, in which it is held that a grant upon condition to establish and maintain a street railway is not satisfied by establishing and maintaining it for the period of thirty years. The court said in part: “The plan contemplates permanency in the improvement and use of the right of way, rather than mere temporary expediency. Under such circumstances, it is not to be supposed that it was intended that the conditions need be complied with for any such limited period as 10, 20 or 50 years * * *. The condition in question requires that the specified passenger service must be both established and maintained. Effect should be given to both of those words. Even if establishment be construed to mean merely to commence, mere commencement will not suffice to satisfy the condition. It must also be maintained.” In analogy to that case, the maintenance *489of a city hall, or a city and county building, implies permanence. So does the clause which makes the agreement of 1938 binding upon the successors and assigns of the city and the county. Moreover, if the agreement related merely to the maintenance of a city hall or a city and county building, the situation would be more nearly analogous to some of the cases on the subject. But it differs from any of the cases which I have found, in that the alternative use is for a public park. Parks, if not absolutely necessary, are highly desirable. In many cities lands are condemned to establish them, and I perceive no reason why they may not be established substantially in perpetuity. It is difficult to see why it would be against public policy or against the public interest for a city — at least in a case of a gift— to make an agreement that premises shall be used exclusively for either such buildings or as an alternative, (or subsequently) for a public park, and make such agreement binding upon a condition subsequent as in this case. To hold otherwise will, I think, merely result in less or no gifts being made to a public body upon condition, and I question that that would be desirable. And if such an agreement is valid in the first place, it is difficult to see why it may not be enforced according to the agreed conditions. In any event the burden to show that full compliance with the contract herein was against public interest or impossible, is on the city, and should not and cannot be determined under or in view of the pleadings before us. Rosecrans vs. Pacific Elec. Ry. Co., supra, Atlanta & W. P. R. Co. vs. Camp, 130 Ga. 1, 60, S. E. 177. In short I think that plaintiffs in their pleadings have stated a prima facie valid cause of action. That is as far as I need to go herein.
The judgment herein should be reversed.