By the Court, Gridley, J.
This action was brought to recover damages, for the alledged trespass committed by the defendants in excavating and laying the track of the Oswego and Syracuse railroad, through lands claimed by the plaintiffs; and also to recover the possession of the said lands. It appears that [615] two of the plaintiffs, Robert C. and Sands N. Kenyon, acquired their interest in the premises in question on the 9th of May, 1848. And there is no evidence in the bill of exceptions, that any acts of the defendants charged as trespasses, were committed after that time. It is stated that the excavation was completed before the month of June ; but whether it was or was not completed before the 9th of May, does not appear. Unless it was proved that some of the acts were committed after the Kenyons assigned their title to the premises, that part of the action which seeks to recover damages, must fail. And so I understand the learned justice who tried this cause, without a jury, to have found, as a question of fact. I also understood the counsel of the plaintiffs, on the argument, to abandon this part of the action, and to concede that the only question remaining for the decision of this court, was that which involves the title and possessory right to the premises in question; in other words, the ordinary issue, in an action of ejectment.
I. Under this aspect of the case, the first inquiry is, what right the plaintiffs have established to the lands in controversy. Those lands, are that part of lots 54, 55 and 56, in the Onondaga salt springs reservation, lying west of the city of Syracuse, which is occupied by the track of the defendants’ railroad. They were the property of the state ; and whatever interest the plaintiffs had in them, rests on the following state of facts.
In the year 1841, one Robert Gere, applied to the commissioners of the land office, to have farm lots Nos. 54 and 55 set apart to him for the manufacture of coarse salt; and one Samuel Brewster, at about the same time, applied to have farm lot No. 56 set apart to him for the same purpose ; which, applications were respectively granted; and the plaintiffs have succeeded by assignment to the rights of the original applicants. Those rights, such as they are, were assured to the applicants by resolutions of the canal board, of which the following in the case of Gere, as to all its substantial provisions, is a copy. “ Resolved that the said application be granted in part, and that the land therein specifically described, excepting therefrom the parcel, &c. and excepting also the parts of streets, &c. be and the same, [616] that is to say, farm lots No. 54 and 55, are hereby set apart to the said Robert Gere, for the purpose of erecting works thereon for the manufacture of coarse salt, pursuant to the provisions of article 4 of title 10 of chapter 9 of part 1 of the revised statutes.” Sections 104, 105 and 106, (1 R. S. 267,) provide for the application setting forth the amount of capital proposed to be invested in the works, and for the setting apart of the land by the commissioners; and the two following sections declare the rights of the occupants under the resolutions. By the 107th section, it is provided that the occupant shall have four years within which to complete the works, but that the location shall be void unless the works shall have been commenced and one-tenth of the capital expended within one year; “ and the land, except such parts thereof as shall have works actually erected thereon, shall be liable to be located by any other individual or company.” The 108th section enacts that “ any part of such location, which at the expiration of the said four years shall not be actually occupied by manufactories, pursuant to the intention of the original location, may be again set apart by the commissioners of the land office, to any other person or company, for the erection of such manufactories” The question involving the rights of the plaintiffs, arises under the provisions of the last section. All the lands embraced in the complaint in this action, and a considerable part of the residue of the three farm lots, are still vacant; no works having been erected on them, notwithstanding the four years had elapsed long before the defendants took possession of the premises. The plaintiffs enclosed these vacant lands, and improved them for agricultural purposes. And this, their counsel insists, they had a right to do, upon the ground that they hold these lands under a title, analogous to that created by a conveyance, subject to a condition subsequent, liable to be defeated only by the concurrence of two events; first, the failure to cover the land with erections within four years, and secondly, the actual setting of them apart to another applicant. To this conclusion we can not assent; and we will briefly state the grounds of our opinion.
1st. Conceding for the argument’s sake, that we are to regard [617] the resolution of the commissioners of the land office-as a leasé, we think that the condition to erect works within four years, on the lands set apart for that purpose, was precedent and not subsequent, as to all such lands as were not occupied within the prescribed period. It is laid down by Chancellor Kent, (4 Kents Com. 124,) that there are no technical words to distinguish between conditions precedent and subsequent; and that whether they be the one or the other, is matter of construction, and depends upon the intention of the party creating the estate. None of the cases cited by the plaintiffs’ counsel are in principle like the one under consideration. In the case of Merrill v. Emery, (10 Pick. 507,) the money and family stores, were certainly not intended to be kept till the granddaughter’s education was completed, and therefore there could be no pretence for holding the latter to be a condition precedent. So too, in Stark v. Smiley, (12 Shop. 201.) Where the devise contemplated the entering upon the estate and its enjoyment, and where certain provisions for other persons were to be derived from the estate no doubt could exist that the condition on which it was to depend, was subsequent and not precedent. Again; in Manrick v. Andrews, (12 Shep. 525,) where an estate was devised on condition of supporting the testator’s mother, the intention was clear that the estate was to vest immediately, subject to forfeiture by a breach of the condition. Equally clear was the intention of the parties in the case of Hamilton v. Elliott, (5 S. & Raw. 375i) The only other case referred to is that of Hayden v. Stoughton, (5- Pick. 528,) where land was devised to a town for the building a school house, provided it was built 100 rods horn the meeting house. In that case it was properly held-that the town had a reasonable time within which to build the school house, and that 20 years was an unreasonable time, and so the condition was broken. In all these cases, and many more which are cited by-Chancellor Kent, the intention-was manifest, either by positive provision or clear implication, that the estate should vest immediately, subject to be defeated by the breach of the condition annexed. But the case we are considéring more nearly resembles Wells v. Smith, decided in 2 Edwards’ Ch. [618] Rep. 78, and affirmed by the chancellor in 7 Paige, 22. That was a contract for the sale of a: city lot, at a stipulated price, provided the purchaser should by a particular day build and enclose a house, or in default thereof pay $1000. It was provided that the purchaser should take possession of the premises immediately, and if he did not perform, should leave a shop, which he was to build, on the premises. He did go into possession, and expended considerable sums of money in improvements, and failed to pay the $1000 at the day, though he tendered it shortly after. It was held that he could have no relief, for the reason that his right depended, not on a condition subsequent, in which case chancery would relieve against the forfeiture, but on a condition precedent, for the breach of which neither law nor chancery furnished any relief. (Popham v. Bampfield, 1 Vern. 83. 19 John. 69. 6 Cowen, 627.) The case of Wells v. Smith was a much stronger case for the purchaser than is this case, for the plaintiffs. The provisions of the act, under which the right of the plaintiffs arise, are peculiar. In no event does the occupant lose the erections which he may have made, nor the right to use the land on which they stand. Now, if the-land originally located were deemed to have been conveyed to him subject to a condition subsequent, he would have forfeited the entire location and all the capital expended upon it. This incident—the forfeiture of the entire estate—is characteristic of a condition subsequent. The grantor enters for condition broken, into the whole premises, and becomes seised of his first estate. (4 Kent, 126. Shep. Touch, by Preston, vol. 1, 121, 155.) And therefore conditions subsequent are not favored in law. (4 Kent, 129.) The absence of this distinguishing feature of this species of condition is conclusive against the plaintiffs’ claim. The applicant indeed had the whole of the three lots in question set apart for his use. But for what purpose ? For nothing, but to erect works thereon for the manufacture of coarse salt. He had no right to enter upon and occupy the premises for any other purpose. And his right to do so for that purpose was limited to four years. Time was here made the essence of the contract, (if the resolution is to be deemed a con[619] tract,) precisely as it was in the case of Wells v. Smith. Regarding the resolution as an agreement, it was executory when made, and only became executed, pro tanto, at the expiration of the four years, so far as the erections had extended on the lands set apart. As to all the unoccupied lands, it was at all times Executory and permissive only. And at the end of the four years, all right to extend the occupation under the resolution ceased, by the very terms of it. It was a condition precedent that the right should be exercised within the prescribed time, if at all, and not having been so exercised, all right under it ceased ; and the very occupation of the premises, for agricultural purposes, was a violation of the spirit of the resolution, and an unlawful usurpation of the property of the state.
2dly. If it be conceded that the resolution is to be construed as a lease, as the counsel contends it should be, it can not be maintained that it is a lease in perpetuity ; for then the people would have conveyed away an estate of inheritance; nor can it be claimed that the applicant took an estate for life; for that would invest him with the legal title and all the attributes of a freehold estate. If a lease at all, therefore, it must be quasi a lease for years. In that event it will be immaterial whether the condition be subsequent or not; for in such case the estate ceases, absolutely, as soon as the condition is broken. Speaking of conditions subsequent, Ch. Kent remarks, on the authority of Co. Lit. 215 a, and Pennant's case, (3 Coke, 64,) that “ there is this further distinction to be noticed between a condition annexed to an estate for years, and one annexed to an estate of freehold; that in the former case the estate ipso facto ceases as soon as the condition is broken; whereas in the latter case, the breach of the condition does not cause the cesser of the estate without an entry or claim for that purpose. When the estate has ipso facto ceased, by operation of the condition, it can not be revived without a new grant.” (4 Kent's Com. 128.) Under this view of the case, it is clear that the plaintiffs’ right ceased with the expiration of the four years.
3dly. We think it an erroneous construction of the resolution in question to regard it as a lease at all. It is argued that this [620] resolution should be regarded as a lease because the commissioners never executed leases, but speak by resolution. It seems to us that this is a conclusive reason why we should not hold it to be a lease. The legislature well knew the difference between a lease and a resolution. They had already provided that lots for the manufacture of fine salt, and a certain class of lots for the manufacture of coarse salt, should be leased; and had provided very specific regulations as to the conditions of such leases. (See 1 R. S. 257, §§ 31 to 36, 39.) But in relation to the lands in question they merely directed the commissioners of the land office “ to set apart” so much as they deemed reasonable to the petitioners for the purpose of manufacturing coarse salt under the conditions already stated. This is neither a conveyance nor a lease. It is merely a license to occupy the lands of the state for a certain purpose, provided certain conditions are complied with. As to so much of the lands thus set apart as the occupants had covered with erections at the end of four years, the resolution becomes a continuing license ; but as to the residue, the license, by the very terms of the resolution, ceases and becomes inoperative. It has not a single feature of a lease. It conveys no estate, nor does it purport to do so. It contains no covenants. There is no lessee, who is bound to do or not to do any act. If it were a lease, it doubtless would demise the entire location. In that event, whether the condition were held to be either precedent or subsequent, on the failure to comply with it, the applicant would lose the whole of the premises covered by the lease, with all the works erected thereon. We have already seen that under the provisions of the act no such consequence can follow. The rights of the plaintiffs under the act and the resolutions are peculiar, and sui generis. They have the right- to use the lands set apart, for the single purpose of erecting thereon works for the manufacture of coarse salt, and for no other. And this right ceases, as to all the lands not so occupied at the expiration of four years. This we think is the fair reading of the statute and of the resolution founded on it. It follows, that the plaintiff had no legal or equitable right to occupy the land in question in this suit for any purpose what[621] evei- at the time when the defendants took possession of it; and that they were by consequence intruders and trespassers on the lands of the state.
4thly. It is hardly necessary to say that, if we are right in the views we have taken of the right of the plaintiffs under the act, there is no force in the suggestion that upon the facts proved the plaintiffs are entitled in equity to be relieved from the forfeiture. In addition to this, the complaint is not framed with the view of obtaining that kind of relief; there is a want of requisite parties to the action; and the facts proved are not sufficient to lay the foundation for such a claim.
II. The plaintiffs, being intruders on the public lands, claim to recover the possession of the defendants as wrongdoers, upon the ground of a prior possession. (15 Wend. 171. 9 Id. 223. 7 Cowen, 639.) It is true that possession is prima facie evidence of title, and a prior possession has been held sufficient evidence to entitle a party to recover in ejectment; and Justice Kent said in Jackson v. Harder, (4 John. 211,) that a mere intruder-can not protect himself under an outstanding title in a stranger. It is difficult, however, to see what right the plaintiffs show to the possession of those premises, when the same evidence which they give to prove the existence of their prior possession also shows that it was tortious and without the shadow of any justifiable authority. However this may be, we do not think that the defendants stand in the relation of intruders or wrongdoers.
1st. They have shown a title derived from the state, by letters patent, executed by the proper authorities. Now though this patent be void, the plaintiffs, who are mere strangers and intruders, can not set up its want of validity. It was held, in the case of Cromelin v. Mintur, (9 Ala. Rep. 594,) that notwithstanding a patent was fraudulently obtained, or had issued in violation of law, and was therefore void, yet that a mere intruder could not set up the invalidity of the patent. And this principle we believe to be sound law. The statute makes every security tainted with usury absolutely void; and yet no princi[622] pie is better settled than that a stranger can not set up that defence.
2dly. For another reason, the plaintiffs can not set up the want of validity of this patent, in this collateral way. . Its validity can only be controverted in a direct proceeding to avoid it, by scire facias, or in chancery. And here we desire to take the distinction between a party standing in the position of the plaintiffs without any color of title, and one who has established a title in himself, whose rights are attempted to be subverted through.a conveyance emanating from the officers of the government, under the provisions of a statute. We have held, in such a case, in Varick v. Tallman, (2 Barb. S. C. Rep. 113,) that the party relying on such a conveyance must prove all the prerequisite steps necessary to confer on the officer the power of sale. But, we say that, as against a party who shows no color of right in himself, and even when he shows a title from the state, of a junior date to that conveyed by letters patent, such letters, under the seal of the state, are conclusive, until they have been repealed. It is only where the letters patent are void on their face, by reason of being issued contrary to law, or when the grant is of an estate contrary to law, as against the prohibition of a statute, that such grant will be held void in a collateral proceeding. This is so laid down in 2 Bl. 348, 3 Id. 260, and was so adjudged by the supreme court of this state in Jackson v. Lawton, (10 John. 23,) and 6 Cowen, 281. In Jackson v. Lawton, it was insisted by the defendant’s counsel, that a distinction existed between letters patent issued by the commissioners of the land office, in this state, and grants issued by the king, in England. It was said that the commissioners were a board instituted for a special purpose and with limited powers, and that their acts were conclusive only when done pursuant to their powers. But the court, Kent, Ch. J. delivering the opinion, held otherwise, saying that letters patent were a matter of record, and unless they were void on their face must be attacked by a direct proceeding in chancery, or by scire facias, He says, “the principle has been frequently admitted that the fraud must appear on the face of the patent, to render [623] it void ill a court of law; and that when the fraud or other defect arises from circumstances dehors the grant, the grant is voidable only by suit.” Now, there is nothing on the face of this grant to render it void.
3dly. The plaintiffs assert that the act of April 12, 1848, under a provision of which this patent was issued, applies only to lands unsuitable for the manufacture of salt, and that inasmuch as it is proved by witnesses that the lands in question were not of that character, therefore the patent is void. A conclusive answer to this objection is, that the act authorizes the laying out into lots, &c. and selling “ such portions of the Onondaga salt springs reservation as are not occupied for the manufacture of salt, and which they shall deem unsuited for that purpose.” The commissioners are made the judges of that fact, and when they have decided, by directing a sale of a given portion of this land, and a purchaser has paid his money into the treasury of the state, and received his patent, can the people alledge that the grant is void, without restoring the purchase price 7 And if the people can not do this in an action of ejectment, can third persons do it who have no interest whatever in the question 7 We think hot. The evidence that the lands in question are in fact well suited for the manufacture of salt, was not admissible, to prove that the commissioners hadjudged erroneously or acted corruptly, and therefore that the grant was void. If the patent had issued under a mistake of fact, or a false suggestion, it might be repealed on a scire facias, or proceeding in chancery, wherein the purchaser could be put in statu quo. But in a collateral proceeding by an ejectment the people would be estopped by the receipt of the defendant’s money and their own record of conveyance. No private person could sustain such a suit, either in law or chancery, without restoring the money he had received.
4thly. Another objection to" the title of "the defendants, under the seventh section of the act of 1848, (Laws of 1848, p. 468,) rests on the argument that the title thus obtained was in violation of the 7th section of the 7th article of the constitution of 1846. By the constitution of 1821 the legislature were prohibited from “ selling or disposing of the salt springs or the lands [624] contiguous thereto and which, might be necessary or convenient for their use.” (1 R. S. 46, art. 7, § 10.) By the present constitution the prohibition extends only to the salt springs, but not to the lands, except by implication. The section reads as follows : “ The lands contiguous thereto, and which may be necessary and convenient for the use of the salt springs, may be sold by authority of law, and under the direction of the commissioners of the land office, for the purpose of investing the moneys arising therefrom in other lands alike convenient; but by such sale and purchase, the aggregate quantity of the lands shall not be diminished.” Now it is fair to conclude that the power to sell, except as is authorized in this section, is by a necessary implication prohibited. There are, however, several requisites necessary to bring the taking of the land in question within the prohibition of the constitution. (1.) It must be clearly shown that the lands in question are, within the meaning of the constitution, “ contiguous to the springs and. necessary and convenient for the use of them.” We have no means (so far as the evidence goes) of determining whether the lands in question are within the meaning and intention of the framers of the constitution. The lands in question are situated at a very considerable distance from the springs, and are not “ contiguous” or 11 necessary for the use of the springs,” in a different sense from a considerable territory which is now built up as a part of the city of Syracuse, and which has been sold by authority of laws passed at different times while the constitution of 1821 was in force. (1 R. S. 258, § 36. Laws of 1837,pp. 93,143. Id. of 1829, pp. 345, 411.) The legislature therefore have not given so wide a construction to the descriptive words employed in the constitution as is now contended for.
(2.) If the construction of these terms should embrace the lands in question, and other lands similarly situated, then the extent of the lands, to which the prohibition extends, would include an area of several miles square., If that be so, it could never be the intention of the framers of the constitution, when they forbade the sale of these lands, to prohibit the appropriation of such parts of them as might be necessary- for public highways,[625] canals or railroads. It has been decided in this state that railroads are so far public improvements, that the legislature may constitutionally pass acts authorizing the taking of private property necessary for their construction, and that in that respect they stand on the same footing as canals and common highways. (See Beekman v. The Saratoga and Sch. Railroad Co. 3 Paige, 45, and Bloodgood v. The Mohawk and Hudson Railroad Co. 18 Wend. 9.) It may be, and probably is, a positive advantage to the manufacturers of salt, that these lands are traversed by a canal and a railroad. The facilities for sending the manufactured article to market are thereby greatly increased. An act, therefore, which provides for the taking of such portions of those lands as may be necessary for the construction of a railroad, upon the appraisal and payment of the damages to the state occasioned thereby, is not in conflict with the constitutional prohibition of the sale of these lands. Such an appropriation of the lands is not a sale, within the letter or spirit of the constitution. The seventh section of the act of 1838, then, was constitutional. Under that act, the state, by its officers, on the 3d of June, 1848, received the appraised value of the land taken by the defendants, upon receiving the report of the appraisers who had been appointed to appraise the value of the lands surveyed off to the company by the state engineer and surveyor. The act gave the defendants a right to the possession of the premises so surveyed, appraised and paid for, against the plaintiffs. It undoubtedly appears that there was some irregularity, in the proceedings of the state officers; but none of such a description as would render the rights void which the company obtained by the payment of their money and the receipt of it by the treasurer of the state; especially after the subsequent ratification of those acts and the confirmation of the title of the defendants by the commissioners of the land office. I am not saying that the defendants have a perfect title to the land in question. It is not necessary to decide that point. But we mean to say that their title is not void by reason of its having had its origin in a violation of the constitution; and we mean to say further, that the company has a right, as against the [626] state,' to occupy the premises in question until such right shall be declared void in some appropriate proceeding; and that such right is paramount to the right derived from a prior unlawful possession by the plaintiffs, and cannot, be questioned by them in this suit.
For these reasons the judgment is affirmed.