EFFECT OF RECONVEYANCE TO UNITED STATES OF PORTION OF LAND GRANTED TO STATE OF IOWA

A condition subsequent may be waived by the grantor, by acts as well as by express release.

A grantor participating in a breach of condition, or rendering compliance impossible, cannot take advantage of the breach. The United States granted to the State of Iowa certain land comprising a part of the Upper Mississippi River Wild Life and Fish Refuge upon certain conditions and limitations, one of which is that "In the event the State shall fail to maintain the aforesaid granted land as a State park under the conditions and limitations herein prescribed, or upon abandonment of the park by the State, said land and all improvements thereon shall revert to the United States."

Held: Reconveyance by the State of Iowa of a portion of such land for use in carrying out an authorized river and harbor project did not violate the conditions and limitations imposed by said act and did not affect the interest of the State in the remainder of the land.

The SECRETARY OF WAR.

MARCH 24, 1937.

MY DEAR MR. SECRETARY: Reference is made to your letter of October 10, 1936, in which you request my opinion upon the question hereinafter stated.

By act of June 4, 1936, 49 Stat. 1464, the United States granted to the State of Iowa certain land comprising a part of the Upper Mississippi River Wild Life and Fish Refuge in Clayton County, Iowa, for State park purposes. The grant was made upon certain conditions and limitations, which are expressed in the act as follows (p. 1471):

"The State shall improve and maintain the said land for such purpose, and not otherwise, and shall provide adequate conveniences for the public. No fee or other charge shall ever be imposed or exacted for admission of the public to the park or for use and enjoyment of the park by the public under such reasonable regulations as may be prescribed by the State or its authorized officials. The State shall sedulously safeguard the wildlife in the park from molestation and destruction, and shall do everything reasonably necessary to safeguard the park from injury by fire, or otherwise, and shall preserve the timber and other natural

growth in the park from depredation and destruction. In the event the State shall fail to maintain the aforesaid granted land as a State park under the conditions and limitations herein prescribed, or upon abandonment of the park by the State, said land and all improvements thereon shall revert to the United States." [Italics supplied.]

The War Department has found that a portion of this land, 77.7 acres, is necessary for use in carrying out a river and harbor project, referred to as Lock and Dam No. 10, Mississippi River. The State of Iowa is willing to reconvey this portion of the land to the United States, provided that in my opinion such reconveyance will not constitute an abandonment by the State of the rest of the land within the meaning of the reverter clause of the granting act. You request my opinion accordingly.

By act of April 24, 1888, c. 194, 25 Stat. 94 (U. S. C., title 33, sec. 591), it is provided as follows:

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Secretary of War may cause proceedings to be instituted, in the name of the United States, in any court having jurisdiction of such proceedings, for the acquirement by condemnation of any land, right of way, or material needed to enable him to maintain, operate or prosecute works for the improvement of rivers and harbors for which provision has been made by law; such proceedings to be prosecuted in accordance with the laws relating to suits for the condemnation of property of the States wherein the proceedings may be instituted: Provided, however, That when the owner of such land, right of way, or material shall fix a price for the same, which in the opinion of the Secretary of War, shall be reasonable, he may purchase the same at such price without further delay: And provided further, That the Secretary of War is hereby authorized to accept donations of lands or materials required for the maintenance or prosecution of such works."

It is apparent that the Congress has by this statute fully empowered the Secretary of War to acquire by condemnation, purchase, or gift, lands required for river and harbor

projects which have been authorized by law. From the facts recited in the opinion of your Judge Advocate General it appears that the project here involved, along with numerous other projects, is specifically authorized by the River and Harbor Act of August 30, 1935 (49 Stat. 1028, 1034). There is nothing in the act of June 4, 1936, to indicate an intention on the part of the Congress to deprive the Secretary of War of authority to reacquire on behalf of the United States, under the act of April 24, 1888, the granted lands if such lands should be found necessary for an improvement such as that authorized under the act of August 30, 1935. It is to be noted, also, that this land, in large part at least, was originally acquired by the United States by gift to form a part of the wildlife and fish refuge established pursuant to the Upper Mississippi River Wild Life and Fish Refuge Act of June 7, 1924 (43 Stat. 650), section 13 of which provides:

"Nothing in this Act shall be construed as exempting any portion of the Mississippi River from the provisions of Federal laws for the improvement, preservation, and protection of navigable waters, nor as authorizing any interference with the operations of the War Department in carrying out any project now or hereafter adopted for the improvement of said river."

From the foregoing it would seem clear that you are authorized to reacquire the land for the United States under the act of April 24, 1888, for the purpose indicated.

The act of June 4, 1936, provides that the land "is hereby granted to the State of Iowa, upon the conditions and limitations hereinafter expressed * * *". The effect of the grant is to convey to the State of Iowa a fee simple title to the land subject to a condition subsequent, breach of which can be taken advantage of only by the United States. Schulenberg v. Harriman, 21 Wall. 44. Under the terms of the grant the land may revert to the United States only in case the State shall fail to maintain the land as a State park under the conditions prescribed or shall abandon the park. The question, then, is whether a reconveyance of a part of the land by the State to the United States would

be a breach of the conditions imposed by the statute. In my opinion the answer is in the negative.

A condition subsequent may be waived by the grantor, and waiver may be accomplished by acts as well as by express release. In Bain v. Parker, 77 Ark. 168, 90 S. W. 1000, it is stated: "A condition may be waived by acts as well as by express release. Any acts on the part of the grantor which are inconsistent with a claim of forfeiture are evidence of a waiver of the condition". See also Hannah v. Culpepper, 213 Ala. 319, 104 So. 751, and First Presbyterian Church of Beaufort v. Elliott, 65 S. C. 251, 43 S. E. 674. Likewise, a grantor who has participated in or invited a breach of condition, or who has made compliance with the condition impossible, cannot thereafter take advantage of the breach of the condition or of noncompliance therewith. In First Presbyterian Church of Beaufort v. Elliott, supra, the grantor conveyed land to a church upon condition that the church should not permit the property to be used for other than church purposes. Subsequently the grantee church allowed the grantor to use a portion of the property for other than church purposes, and it was held that the fact that the grantee permitted the grantor to use the property inconsistently with the condition could not be set up by the grantor as a breach justifying re-entry. In Wilshire Oil Co. v. Star Petroleum Co., 93 Cal. App. 437, 269 Pac. 722, a common grantor conveyed lots in a certain tract of land upon condition that the land should revert to him if used for oil development purposes. Thereafter he granted oil leases upon other lots in the tract and solicited other lot owners in the tract to join in such leases. The plaintiff purchased from the common grantor the reversionary interest in one of the lots and then sued for possession of the lot, claiming a forfeiture for breach of the condition in the deed. It was held that by reason of these acts of the common grantor and the other lot owners, which changed the character of the use of the land in the tract from residential to oil development, the plaintiff was not entitled to forfeiture for breach of the condition by the purchaser, who originally entered on the

premises in good faith and built a residence thereon in conformity with the restrictions contained in the deed. See also Lewis v. Lewis, 74 Conn. 630, 51 Atl. 854, and Elkhart Car Works Co. v. Ellis, 113 Ind. 215, 15 N. E. 249.

The instant situation is that the United States requests that a portion of the land be reconveyed to it for its own benefit. Under these circumstances there would seem to be no doubt that if the State of Iowa makes reconveyance of a portion of the land as requested, the United States may not thereafter claim a forfeiture of the remaining portion upon the ground that the reconveyance is a breach of the conditions imposed by the grant. It could not be heard to assert a forfeiture for such reason.

It is, therefore, my opinion that the contemplated reconveyance by the State of Iowa would not violate the conditions and limitations imposed by the act of June 4, 1936, and would not affect the interest of the State in the remaining portion of the land.

I may add that there would seem to be no objection to expressly providing in the deed, if the reconveyance is made, that reconveyance of the portion involved shall not constitute any breach with respect to that portion of the land not reconveyed of the conditions recited in the grant, and shall not affect the title of the State of Iowa thereto.

Respectfully,

HOMER CUMMINGS.

WITHHOLDING PAY OF ARMY OFFICERS TO SATISFY INDEBTEDNESS TO THE UNITED STATES

The phrase "shall have been," in a statute, will be given its grammatical meaning as referring to an event to be completed in the future unless circumstances require both retrospective and prospective effect.

When a statute deals solely with matters of procedure, the presumption against retrospective operation is frequently not applied. The act of May 26, 1936, 49 Stat. 1374, does not permit the withholding of compensation on account of a payment disallowed by the General Accounting Office prior to passage of the act.