The plaintiffs by this action seek to recover the whole or a part of the sum of $12,500, held by the defendant under a judgment of the Superior Court. The material facts alleged in the complaint, to which the defendant demurs, are as follows: —
The plaintiffs represent the heirs of one J. M. L. Scovill, who, in 1847, by warranty deed with the usual covenants, conveyed to William Tyler, bishop of the Roman Catholic diocese of Hartford, his successors and assigns, in trust for the Roman Catholics of Waterbury, a tract of land in Waterbury containing one acre. The deed contained the following provision: — "Provided, and this deed is upon the condition, that the above described premises are to be used and occupied for the purpose of a burying ground, and no other purpose; and that the grantee, his successors and assigns, shall at all times maintain, build and keep a good and sufficient fence around said premises."
Since said date this land has been used and occupied by the grantees as a cemetery for the burial of Roman Catholics, until the removal of all the bodies and monuments by *Page 386 the city of Waterbury under the legislative act hereafter referred to. No interments have been made in this land since 1880. No fence has ever been built around the premises.
In 1882, by a special act of the legislature, the preamble of which recited that this and other old cemeteries within the city of Waterbury had long ceased to be used as places of interment, that they had been in a neglected condition, and that, from the growth of the city and from other causes, they were no longer proper places for cemeteries, it was provided that, from and after the date of the act, it should be unlawful to make any interment in said burying ground. This act further provided that, upon the petition of the city of Waterbury, the Superior Court might order the removal by the city of the bodies and monuments from the cemetery; and, after prescribing the manner of ascertaining the owners of the land and the value of their respective interests therein, provided that, upon payment to the owners of the sums decreed by court as the value of their respective interests, the burial ground should become a public park in the city of Waterbury, and that the same might be used for any suitable public building or other public purpose. 9 Conn. Special Laws, 677.
After a hearing before a committee appointed upon the petition of the city of Waterbury under this act, it was decreed by the Superior Court, January 2d, 1891, that when the city of Waterbury should pay to the defendant the sum of $12,500, said sum having been found to be the value of the land in question, and should remove the remaining bodies and monuments from the burying ground, the same should become a public park in said city and be used for any suitable public building or other public purpose. By the judgment of the Superior Court this sum of $12,500 was to be held by Bishop McMahon "subject to all trusts, claims and interests which are or may be found to be created and reserved in the deed of J. M. L. Scovill." The heirs of J. M. L. Scovill were represented at the hearing before said committee, but no claim was then made in their behalf. *Page 387
On the 30th of January, 1891, Henry W. Scovill, one of the plaintiffs, in behalf of said heirs, made entry upon the land for condition broken.
The city of Waterbury has complied with the requirements of the act referred to, and, on the 18th of May, 1891, paid to the defendant the sum of $12,500, which is held by him in conformity to the terms of said judgment.
By their appeal from the decision of the Superior Court sustaining the defendant's demurrer to the complaint, the plaintiffs claim that there has been a breach of the condition of the deed of Scovill to Tyler, by which the title to the land described in the deed has become forfeited, and that they are thereby entitled to the whole of the sum in the hands of the defendant, as that sum represents the value of the land; that if these facts do not show a breach of the condition of the deed revesting the title in the plaintiffs, they are still entitled to some part of the fund in the defendant's hands as a compensation for the loss of the right which they possess to re-enter upon condition broken, and which right or interest in the land they say has been taken from them by act of the legislature without compensation.
Of the alleged breaches of condition there are but two which we need to consider: — first, that which it is claimed resulted from the failure to maintain a fence; second, that which it is said was effected by the act of the legislature prohibiting the use of the land as a place of burial, and by the removal of the bodies and monuments by the city pursuant to the act.
The alleged right to re-enter for failure to maintain a fence accrued about forty-five years ago, as the record shows that the grantees have never built a fence around the premises. During this period of forty-five years there has apparently been no demand made, either by the grantor or his heirs, for the erection of a fence. During this period the grantor and his heirs have silently permitted interments to be made and monuments to be erected until this tract was filled with graves. Indeed, the silence of the grantor and his heirs respecting their claimed right to re-enter for failure *Page 388 to erect a fence seems never to have been broken until the sum of $12,500 was placed in the defendant's hands by order of the court.
If the clause in question were to be construed as creating a condition subsequent, we think, upon these facts, the plaintiffs may be justly held either to have waived their right or to have lost it by their own laches. A right of entry may be so waived and lost. 2 Washb. R. Prop., 18;Guild v. Richards, 16 Gray, 309;Andrews v. Senter, 32 Maine, 394;Ludlow v. N. York Harlem R. R. Co., 12 Barb., 440; Merrifield v. Cobleigh, 4 Cush., 178.
But we are not willing to be understood as assenting to the plaintiff's claim that the provision requiring the erection of a fence constitutes a condition subsequent. The law is well established that such conditions are not favored, and are created only by express terms or by clear implication; that courts will always construe clauses in deeds as covenants rather than conditions if they can reasonably do so; that if it be doubtful whether a clause in a deed imports a condition or a covenant the latter construction will be adopted; and that, though apt words for the creation of a condition are employed, yet, in the absence of an express provision for re-entry or forfeiture, the court, from the nature of the acts to be performed or prohibited by the language of the deed, from the relation and situation of the parties, and from the entire instrument, will determine the real intention of the parties. 2 Washb. R. Prop., 4, et seq.;Post v. Weil, 115 N. York, 361;Hoyt v. Kimball, 49 N. Hamp., 327;Episcopal City Mission v. Appleton,117 Mass., 326; Stanley v. Colt, 5 Wall., 119.
As it is clear from the language used in this deed that the grantor intended the land to be used for a cemetery and for no other purpose, and as apt words for the creation of a condition are employed, it is a reasonable inference under all the circumstances that the grantor intended that the property should revert if the grantee failed to use it for the purpose for which it was conveyed; but, in the absence of any express provision for re-entry or forfeiture, we think it *Page 389 is not unreasonable to conclude that the parties did not intend that, while the land was in use as a place of burial and while it was filled with graves and monuments, it should revert to the grantor upon the failure of the grantee to maintain a fence. The description of the property shows that the grantor owned the land on two sides of the lot conveyed. He evidently desired to relieve himself from the burden of maintaining any part of the fence and to impose the duty upon the grantee of building all the fence enclosing the premises. This, we think, was his entire purpose, and that this provision should be construed as a covenant and not as creating a condition subsequent.
Assuming that the provision in the deed that the land should be used for the purpose of a burying ground and for no other purpose created a condition subsequent, did the act of the legislature forbidding further interments in the place and providing for the removal of the bodies and monuments which remained there, constitute a breach of condition which would work a forfeiture of the defendant's title? If this question is to be answered in the affirmative, the plaintiffs, assuming that they had made the required reentry, should receive the entire sum in the hands of the defendant, as that sum represents only the value of the land; while the defendant, who, without fault, has not only been deprived of the right to use this land as a place of burial, but has also lost his title to the land itself, will receive no compensation.
If the condition of the deed is broken and the title reverts from the act of the legislature, it would seem, from the claims made by the plaintiffs, that not only should they be reimbursed for the full value of the land taken from them by the city of Waterbury, but that the defendant should be paid the full value of the right and title of which he has been deprived by the state, and which might be equal to the full value of the land.
We think the law is not as contended for by the plaintiffs; and that, the grantee having used the land for a place of burial and for no other purpose, when the state, in the *Page 390 proper and reasonable exercise of its police power, by a valid act of its legislature, rendered the performance of the act described in the condition subsequent unlawful, the condition of the deed was thereby destroyed, and the title vested absolutely in the defendant. Mitchell v.Reynolds, 1 P. Wms., 189; Doe dem. Marquis ofAnglesea v. Church Wardens of Rugeley, 6 Q. B., 107; Brewster v. Kitchin, 1 Ld. Raym., 317; 2 Black. Com., 156; 2 Washb. R. Prop., 8; 4 Kent's Com., 130; 1 Rev. Swift Dig., 98.
In Doe on demise of Marquis of Anglesea v. ChurchWardens of Rugeley, the condition was that the lessees should use and occupy the premises for the sole use, maintenance and support of the poor of Rugeley, and should not convert the building or the land described to any other use or purpose. For a time the building was used for that purpose, but afterwards the paupers were removed by order of the poor law commissioners and the workhouse closed. Lord DENMAN, C. J., in delivering the judgment of the court, said: — "But even if the condition were not performed, it appears to us that the non-performance would in this case be excused, as being by act of law, and involuntary on the part of the lessee."
If it should be said that the plaintiffs' interests in this property had been taken from them by the state or by the city of Waterbury by right of eminent domain, we should reach the same conclusion upon the question of whether the condition of the deed had been broken. If the city of Waterbury, by taking this land for a public park, under the valid act of the legislature, has prevented its use as a burial place, it is clear that the performance of the condition of the deed has been prevented by act of law; and we know of no principle or authority by which the taking of the property under the right of eminent domain would work a forfeiture which would require payment both to the plaintiffs of the value of the land and to the defendant of the value of the estate forfeited.
If it were true that, by the appropriation of this land to a public use by right of eminent domain, the plaintiffs had *Page 391 been deprived of their interest in the property, though such taking would not work a forfeiture, yet there would be strong reasons in support of the plaintiffs' claim that the fund in the defendant's hands should be divided between the plaintiffs and the defendant in proportion to the value of their respective interests in the land. And that brings us to the consideration of the remaining claim of the plaintiffs, that, even if there has been no breach of the condition of the deed which would entitle them to recover the entire $12,500, yet, having, by the act of the legislature and the subsequent proceedings under it, been deprived of their interest in the land, that is, of a possibility of reverter, which, they say, was a valuable estate, they should receive some part of said fund as a compensation for their loss.
Upon the facts disclosed by the record this claim cannot be sustained. Conceding that, by the act of the legislature, the plaintiffs' interest in this property has been destroyed, and that such interest was one which is susceptible of a valuation in money, it does not follow that they are entitled to compensation from the fund for the loss of that right or interest.
Regarding the plaintiffs' right to re-enter upon condition broken as a species of property, that property has neither been taken nor destroyed by the conversion of this land into a public park by right of eminent domain. The purpose of the legislative act was two fold: — first, by prohibiting the use of this land as a cemetery, to remove a public nuisance; and second, to permit the city of Waterbury to take the ground for a public park.
The fact is apparent that this old burying ground, long since filled with graves, and within the limits of the city of Waterbury, had become obnoxious to the public and had come to be regarded as a public nuisance. The preamble of the act of the legislature in effect declares it to be such. The language is — "Said old cemeteries have long been in a neglected condition, and, from the growth of said city around and from other causes, they are no longer proper places for cemeteries." The complaint alleges that these cemeteries *Page 392 were public nuisances, and we think the facts apparent upon the record fail to show that they had become so by the fault of the defendant or that they would have been any the less a nuisance had they been enclosed by a fence. Evidently, from the growth of the city and from the location of the cemetery in the city, it had become an unsuitable place for a burial ground. Under these circumstances, and with two distinct objects in view, the act in question was passed, providing, first, that it should be unlawful to make further interments in the land, and that, upon the petition of the city and upon hearing all parties interested, the Superior Court might order the removal to other cemeteries of all the remaining bodies and monuments at the expense of the city; and, second, that upon payment to the owners of the value of the land duly assessed as provided by the act, and upon the removal of the bodies and monuments from the cemetery, the land should become a public park, etc.
If, because the use of this land as a place of burial was harmful to the health and welfare of the public, the act had forbidden further interments to be made in these cemeteries, and had provided for the removal of the bodies and monuments, without permitting the land to be taken for a public park, the plaintiffs would have sustained the same injury as that of which they now complain. The defendant would have been deprived of his right to the use of this land as a burial place without receiving compensation therefor. By the destruction of the condition of the deed the plaintiffs would have been deprived of their interest, a possibility of reverter, while the title to the property would have remained absolute in the grantee.
If the property of the plaintiffs has been taken from them by the state, it has been taken by the act prohibiting the further use of this land as a place of burial. The provision permitting the city to take the land for public purposes after it had ceased to be a burial place and could no longer be used for that purpose, did not affect the plaintiffs' rights.
Forbidding the use of this property in a manner hurtful to the health and comfort of the community is not a taking *Page 393 of the plaintiffs' property for public use within the meaning of the constitution. It was a proper and valid exercise of the police power vested in the state, and if, as a necessary result of the act of the legislature removing a public nuisance, the plaintiffs have been deprived of the right in question, they are not thereby entitled to a portion of the money in the defendant's hands. Raymond v. Fish,51 Conn., 80; Dunham v. City of NewBritain, 55 id., 378; State v. Wardin, 56 id., 216 Woodruff v. N. York N. EnglandR. R. Co., 59 id., 63.
The Superior Court committed no error in sustaining the defendant's demurrer to the complaint.
In this opinion the other judges concurred.