to the use and behoof of the said proprietors for the said purpose, and of each and every lawful owner and proprietor of a pew or pews in the meeting-house, to be built and rebuilt on the said lot of land forever, without any clause providing for forfeiture or re-entry, is not a grant upon condition that a meeting-house shall be erected and maintained on the land conveyed." So a grant of land upon a valuable consideration, upon trust that the trustee "shall at all times permit all white religious societies of Christians, and the members of such societies, to use the land as a common burying-ground, and for no other purpose, was not upon condition subsequent": Brown v. Caldwell, 23 W. Va. 187; 48 Am. Rep. 376. Neither is a grant of land which has been used as a burying-place to a town "for a burying-place forever," in consideration of love and affection, "and divers other valuable considerations," a grant npon condition subsequent. And the like doctrine is announced in Thornton v. Trammell, 39 Ga. 202; Risley v. McNiece, 71 Ind. 434; Ayer v. Emery, 14 Allen, 67. Our conclusions on this point are strengthened by the fact that the appellants are invoking a technical rule of the common law, which rule has never been favored by the courts, but is always construed strictly: Emerson v. Simpson, 43 N. H. 475; 80 Am. Dec. 184; Woodworth v. Payne, 74 N. Y. 196; 30 Am. Rep. 398; Page v. Palmer, 48 N. H. 385; Gadberry v. Sheppard, 27 Miss. 203.

3. Remedy for Breach of Condition. The counsel for appellants upon the argument claimed that the defendant was bound by the terms of the deed, in order to save the land conveyed from forfeiture, to erect thereon "a college or institution of learning free from all sectional or political influence"; and that, inasmuch as there is no law authorizing said county to apply any of the funds under its control to such a purpose, the grant was necessarily defeated. Conceding now that the words in the habendum clause of the deed created a condition subsequent, the conclusion which counsel drew from the fact, it seems to me, does not follow. In such case numerous authorities hold that if the condition is impossible to be performed, or illegal, it is void, and the grantee would take the estate freed from the condition: Taylor v. Sutton, 15 Ga. 103; 60 Am. Dec. 682; 2 Washburn on Real Property, p. 8, sec. 6. But it is not now necessary to decide that question. It has thus far been assumed that equity had jurisdiction in this case. This assumption has been allowed only at the re

quest of counsel, mutually made upon the argument; but the remedy of the plaintiffs was at law upon their theory of the case. If condition subsequent be broken, the party entitled may re-enter, and if necessary, have an action to regain his estate, but equity would not entertain jurisdiction for such purposes. The other matters pleaded in the complaint, whereby it is sought to present a case of equitable cognizance, are wholly insufficient for that purpose, and do not require special notice.

Let the decree appealed from be affirmed.

On petition for rehearing:

By Court, STRAHAN, J. Appellants' counsel have filed a petition for a rehearing, in which it is insisted that the land in controversy was granted for educational purposes, and for none other. This is conceded; the deed expresses that upon its face; but it is nowhere alleged that it is being used for any other purpose, and if it were being so used, it is probable that the heirs of the grantor have such an interest that they might restrain such unauthorized use of the thing granted. But of this they do not complain. It is the non-user for which they demand a forfeiture. The deed does not fix any time when the land granted must be so used, nor is the estate limited as to the time when its use shall begin. The grantors, when they made the deed, were chargeable with full notice of all the powers and authority of Umatilla County under the statute. Not having annexed any conditions to the grant at the time it was made, the court ought not to undertake to supply them by implication. It is also urged by counsel for appellants, with much apparent confidence, that this trust is void because those who may be its beneficiaries are uncertain or unknown. But this does not belong to that class of trusts where it is necessary they should be known. It is the use to which the property is to be applied, and not the persons benefited, which the law regards in such case. In other words, it is a trust for charitable use: 2 Perry on Trusts, sec. 700. "If in a gift for private benefit, the cestuis que trust are so uncertain that they cannot be identified, or cannot come into court and claim the benefit conferred upon them, the gift will fail and revert to the donor, his heirs or legal representatives. But if a gift is made for a public charitable purpose, it is immaterial that the trustee is uncertain or incapable of taking, or that the objects of the charity are uncertain or indefinite.

Indeed, it is said that vagueness is in some respects essential to a good gift for a public charity, and that a public charity begins where uncertainty in the recipient begins: 2 Perry on Trusts, sec. 687. Trusts of this character have been generally favored and liberally construed by the courts. Such benefactors will not be defeated or overthrown on slight or trivial grounds.

The petition for a rehearing will be overruled.

COUNTIES HAVE CAPACITY TO TAKE AND HOLD LANDS FOR EDUCATIONAL PURPOSES: Bell County v. Alexander, 73 Am. Dec. 268, note 276, 277.

DEED DOES NOT CONTAIN CONDITION SUBSEQUENT WHEN: Rawson ▼. School District No. 5, 83 Am. Dec. 670, similar to the principal case, and see note 676; Farnham v. Thompson, 57 Am. Rep. 59, and note 63–68.

ESTATE UPON CONDITION, WORDS NECESSARY TO CREATE: Gibert v. Peteler, 97 Am. Dec. 785, and note.

CONDITIONS SUBSEQUENT IN DEEDS, and right of entry for breach thereof, discussed: Notes to Cross v. Carson, 44 Am. Dec. 743-759. See also Thompson v. Thompson, 68 Id. 638, note 649.

CHARITABLE USES - WHETHER TRUSTEE MUST BE DESIGNATED: Bridges v. Pleasants, 44 Am. Dec. 94, extended note 98-101; Owens v. Missionary Society, 67 Id. 160, note 184, 185. As to whether the beneficiary must be known, see cases cited supra, and Beekman v. Bonsor, 80 Id. 269, note 285, 286.

BINGHAM V. SALENE.

[15 OREGON, 208.]

GRANT IN PRESENTI OF SOLE AND EXCLUSIVE RIGHT AND PRIVILEGE TO SHOOт, take, and kill any and all wild fowl upon and in any lakes, sloughs, or waters situate upon the lands of the grantor, and of the right of ingress and egress to and from said lakes, sloughs, and waters for such purpose, is a grant of a profit a prendre, and not a mere revocable license; and while the privilege granted is sole and exclusive, its use is limited to the places designated, that is, the water lying upon the lands of the grantor, and must be so exercised as not to injure his crops or stock; nor does the grant authorize the indiscriminate giving of permits to numerous persons to exercise the privilege, though the grantee may sell or assign it.

RIGHTS EXERCISED BY ONE IN SOIL OF ANOTHER, accompanied with participation in the profits of the soil, are termed profits a prendre. They differ from casements in that the former are rights of profits, and the latter are mere rights of convenience without profit. GRANTORS CANNOT AVOID GRANT on the ground of their illiteracy and want of understanding of its terms, when, though they cannot read and write, they speak the English language reasonably well, are persons of ordinary understanding, and not negligent of their interests, and when the grant was executed it was read and explained to them, and they fully understood its contents and terms.

AFFIRMATIVE DUTY IS ALWAYS ON ATTORNEY to show that transactions between himself and client are fair and honest and above suspicion. INJUNCTION. WHERE GRANTOR HAS GIVEN GRANTEE the sole and exclusive privilege to hunt and take wild fowl upon the waters on grantor's lands, but the grantee has transcended his rights by issuing permits for such privilege to numerous persons who have acted in an insolent and impudent manner toward the grantor, roamed over his land at will to the injury of his crops, left gates open, and shot and wounded his domestic animals, he will not be enjoined from resisting such unwarranted abuse of the privilege granted.

A. R. Coleman, for the appellants.

Whalley, Bronough, and Northup, for the respondents.

By Court, LORD, C. J. This is a suit in equity to enjoin the defendants from interfering in any manner with the alleged exclusive right and privileges of the plaintiffs to go upon and over certain lands of the defendants, described herein, for the purpose of shooting, killing, or taking wild fowl in the lakes, sloughs, and waters therein and thereon, and to restrain the defendants from inviting or allowing any other person or persons so to do. Briefly, the grievances complained of are that the plaintiffs, by virtue of a deed executed to them, whereby the the defendants conveyed to them, "their heirs and assigns forever, the sole and exclusive right, privilege, and easement to shoot, take, and kill any and all wild ducks and other wild. fowl upon and in any and all lakes and sloughs and waters situate, lying, or upon our lands, lying in Columbia County, state of Oregon, the said lands being more particularly described as follows: . . . . and also, for the consideration above mentioned, the right of ingress and egress to and from said lakes, waters, and sloughs for the purpose of shooting and taking wild fowl as aforesaid, to have and to hold the said easement and privilege, to them, the said H. T. Bingham and E. W. Bingham, their heirs and assigns forever," which said right and privilege depended for its value on its exclusiveness; and that, in order to protect the same, the plaintiffs posted notices upon the lands of the defendants forbidding all persons from going upon the lands of the defendants for the purpose of shooting wild fowl upon the lakes and waters thereon, and that the defendants, knowing the plaintiffs' rights in the premises, tore down and destroyed said notices, and made threats of assault and personal injury to plaintiffs should they go upon said land to exercise their right and privilege, etc. And further, that the defendants have invited and permitted professional hunters to take and kill wild fowl upon said lakes

and waters, to the injury of the plaintiffs, and threaten and will continue to so do, unless restrained. After denying the matters alleged, the defendants affirmatively set up that the English language is not their native tongue; that they cannot read or write it, and understand it but indifferently; that they are ignorant of all forms of law; and that plaintiffs are practicing attorneys, and were, at the time of making the deed aforesaid, employed by the defendants as their attorneys in certain matters of business, and that plaintiffs asked them for the privilege of going upon the lands to hunt wild fowl, and that the defendants expressed themselves as willing to give them, and no one else but them, the privilege to hunt upon said lands, and that thereupon the plaintiffs prepared the above grant, but at the time of signing the same the defendants declared that they did not understand its import, and particularly the defendant Christiana, to whom then and now belong said lands, and that the plaintiffs informed her that it was nothing but the privilege to go down upon said lands and hunt, etc., and that the defendants understood that the conveyance, by its terms, granted no more than a permission to hunt upon said premises; that plaintiffs have given others permission to hunt upon the premises; and that, during the hunting season, they have come upon the lands, trampled and injured the grass and crops, and by shooting in the vicinity have frightened the stock of defendants, etc., and ask that the deed be declared null and void. The reply put in issue all the affirmative matter alleged. The suit was referred and reported by the master, which report was set aside, and new findings made by the court, on which a decree was entered, and from which both parties appeal.

By their brief and at the argument, the first inquiry of the counsel was directed to the nature and import of the exclusive privilege granted by the deed; the counsel for the defendants claiming that nothing but a license was created by it, while the counsel for the plaintiffs insisted that it was a grant of a profit a prendre. The distinction between a grant and a license is to be taken as understood, as the contention here is that the right and privilege granted by the terms of the deed do not constitute a grant of a license of a profit a prendre. Rights exercised by one man in the soil of another, accompanied with participation in the profits of the soil thereof,-as rights of pasture or digging of sand,—are termed profits a prendre. They are said to differ from easements, in that the former are