The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1905-06-25

town, when authorized as provided in
section Of this article. may be allowed
- 5tCuI larger Indebtedness, not eA-
ceeding 4 per centum additional for sup
plying such city OF town with water ar
tflclal lights or sewers. when the work
for supplying such water. light and sew
eTs shall be owned and controlled by the
municipality
In determining the question presented
~ Ieiator petition, we must cpnstrue
the foregoing provision of the state con-
Sututlon in connection with section 6. ar
tlcle II OF the same instrument which Is
as follows No municipal CORPORATION
shall. directly or indirectly. lease, sell.
alien or dispose Of any water works. wa
ter rights or sources of water supply now
OF hereafter 10 De owned or controlled by
IL out al such water works. water
rights and sources OF water supply now
owned or hereafter to be acquired by ANY
municipal corporation. shall be preserved.
maintained and operated by il for sup
plying its inha bitants with water at rea-
sOnabie charges: provided. that nothing
herein contained shall be construed to
prevent any Such municipal corporation
from exchanging water rights. or sources
of water supply. for other water rights
or sources Of water supply Of equal
value and to be devoted in like manner
To the public supply of its inhabitants.
Power to Exchange Upheld.
It is conceded that the mountain water
which the city viii receive by the eX-
change Is much more valuable for mu-
nicipal purposes than the Utah lake re-
servoir water; and that the superior
quality of the mountain water for cult
nary purposes will fully compensate the
city Tor the excess in amount which IL
viii be obliged to furnish the farmers
from Utah lake The power and author
/ ity of the city to thus contract for and
I exchange its Utah lake water. which Is
OF an inferior quality and wholly unfit
Tor household purposes. for ii superior
quality of mountain water. is expressly
conferred by section of the constitu-
ton, unless it can be said that the trans
fer and exchange Of water as cOntem-
plated would fail to vest the city with
ownership and control of the water re-
celVed by II IN exchange. as IS cOntem-
plated by section {. article > of the con-
stitution- The compliance or non-cOm-
pllance with the conditions of the sale
and transfer of the water in question will
city. and so long as the city does that
/ which 1t will be its legal duty to do. and
which the farmers. in case of default.
could, by judicial proceedings compel il
| to do. If there were no forfeiture clause
IN the contract of exchange, there can be
no forfeiture Of the water thus acquired
by the city, and its title to the same will
! ne as clear and indefeasible as though
-, "V"hange were absolute and Uncon-
ditionaI.
Actual Title is Acquired.
We are Of the opinion that when sales
and exchanges of the rights of the re-
spective parties are made in and to the
use of the waters the forfeiture clause
being but a condition sIbSp0ueuf * NOT
obnoxious TO the vesting Of title and
ownership in the city to the mountain
water which 1t has received in exchange
Tor lake water, and il Is SETTLED by the
great weight of authority that when real
estate X sold upon a condition subSe-
guent- as the farmers propose to do in
this case the fee Is transferred to and
remains in the grantee until a breach OF
the condition and n re-entTy by the
grantOT- that j. such a sale carries with
II alt the attributes and incidents Of alb
solute ownership until the conuItion is
broken
Towle vs. Remsen. 20 n. Y. 90.
Vail Vs. Long Island r. r. Co, Jos y. Y
Bowler vs. Baltimore & \. Y R. r.
Co - l. R A, 80. and cases cited in
y &C $40.
Jones Real Prop- in Cow. Sec. SO
In Shotuck vs. Hastings. % Mass. %
the rule II tersely. and, a. we think. cor
rectly. stated. as follows; "A deed of
land upon conditions subsequent conveys
the fee with all its qualities of trans
mission The condition has no effect TO
limit the title until it become operative
to defeat IT. Subject TO this contingency.
the estate viii pass by deed or mortga ge
tent IS If no such incident were attached
Applying the foregoing principles of
law to the admitted facts in this case
we have no hesitancy in saying that the
right and title Of the city to the water
II VIII receive from the farmers by the
exchange when made as contemplated
VIII constitute ownership and will come
clearly within the foregoing provisions
of the state constitution.
There are other objections made to the
issue and sale of the bonds by the relatOr
but as the questions raised by such OBJ
lecuOns are without merit and in no way
affect the validity Of the bonds. we deem
IT unnecessary to discuss them
As heretofore stated in an oral opinion
IN Whlch our conclusions were announced
IN IN TINS case We are OF the opinion that
the provisions of the constitution and the
statutes authorizing the issue Of this
character Of bonds have been substantial
~ complied with ard that the bonds in
question are valid
The petition of relator will. therefore.
be denied.
It IS so ordered.
Binds Reach fha His.