St. Clara College, an educational corporation, plaintiff and appellant, commenced this action April 16, 1945, against the city of Madison, Dane county, Wisconsin, defendant and respondent, to establish title in plaintiff, free from any claim of defendant, to lands over which St. Clara College had formerly granted an easement for driveway and park purposes only, to the Madison Park Pleasure Drive Association, which easement was later conveyed to the city of Madison. From a portion of the judgment entered April 9, 1946, dismissing plaintiff's complaint and ordering the city of Madison to enact an ordinance or regulation prohibiting trucks from operating on said land and requiring it to post signs at either end of the land giving notice that trucks are forbidden to use the' same, plaintiff appeals. Defendant seeks to review that part of the judgment dismissing its counterclaim wherein it demanded that title to the premises be established in the defendant and plaintiff be forever barred of any claim of any kind or nature in and to the said premises.

The Madison Park Pleasure Drive Association was organized under the provisions of ch. 55, Laws of 1899, to manage, control, and improve parks and pleasure drives in trust for the people of the city of Madison. As part of a comprehensive plan for the development of a park system and pleasure driveways, on or about April 5, 1904, William F. Vilas and Anna M. Vilas, his wife, offered to convey to the association, for the purpose of public park and pleasure grounds, an extensive tract of land adjacent to lands owned by St. Clara College, appellant herein, upon the conditions that the tract be improved by dredging, widening, and deepening a stream connecting Lake Wingra and Lake Monona; that the association raise not less than $10,000 by public subscription in the city of Madison for the improvement of said lands; that the association cause a driveway to be constructed through lands owned by appellant under the contract which will hereinafter be referred to; that certain alleys and streets within the boundaries of the area be vacated and devoted to park purposes; and that the park be named "Henry Vilas Park." Said offer and grant were accepted by the association on April 30, 1904.

March 30, 1904, a contract was entered into between appellant and the association providing that in the event the association obtained good title to lands described in the agreement, being the same lands that William F. Vilas and Anna M. Vilas, his wife, proposed to convey to the association for park purposes, and upon expending in the improvement of the same a sum of not less than $10,000, appellant would convey by deed to the association a perpetual right of way or easement for driveway and park purposes only, over, in and to a strip of land three rods in width from Edgewood avenue to what is now Woodrow street, a distance of 2,127 1/2 feet, more particularly described in said contract, which will be referred to as Edgewood drive. The agreement to convey said right of way or easement contained the following conditions, which were to be fully complied with before a deed was to be executed and delivered:

(1) That the association, in improving the marsh or bog lying south of the land described, make such improvements in such a manner as not to dam up the water upon adjoining land owned by appellant and be so made as to furnish as good drainage to the adjoining land of appellant as such lands then had.

(2) That the association construct on each of the outer edges of the three-rod strip, or on one edge as appellant may direct, a neat and substantial wire fence with turned and painted cedar posts and to be not less than five feet in height and be perpetually maintained by the association.

(3) That the association construct at least one gate in the fence, at such point as appellant selects, of sufficient width to permit teams to pass across said right of way to and from the lake, and also at the option of appellant to construct a suitable gate for the passage of persons to and from the lake, the gate or gates to be maintained by the association.

(4) That the association construct, at such point as appellant selected, an underground passage way for cattle and horses, of sufficient size to permit free and safe passage of stock under the three-rod strip of ground to and from the lake, and build a fence from said passageway into the lake of such height and construction so as to furnish a yard covered by a sufficient depth of water to afford a reasonable watering place for stock.

(5) The association further agreed that at the option of appellant it would construct an underground passage for the passage of persons to and from the lake, the same to be of neat and artistic design and be perpetually maintained by the association.

The reversion clause in the contract provided:

"Said deed of said right of way or easement over, in, and to said three-rod strip of ground shall contain the further condition that should said land ever be devoted by said party of the first part, or its successors or assigns, to any other use than park and pleasure-driving purposes, then, and in that event, the same shall revert to and become the property of said party of the second part."

All the conditions provided in the original Vilas offer were met, and in addition thereto the city made an appropriation of $15,000 to carry out the proposed improvements and other conditions of the Vilas grant, including improvement of the easement or right of way across lands of appellant. Lands conveyed by William F. Vilas and his wife were developed into a public park, known as "Henry Vilas Park," consisting of an extensive public park area, playgrounds, tennis courts, zoo and menagerie, bathing beaches, and pleasure drives. Streets and alleys were vacated in the area as required.

The conveyance by William F. Vilas and wife provided, among other conditions, that the association construct a good and sufficient driveway over the appellant college lands in accordance with its contract with said appellant bearing date of March 30, 1904, the same to be completely constructed within two years. The association entered upon and took possession of the strip of land described in the contract with appellant under date of March 30, 1904, constructed the driveway, fences, gates, underground passages, and performed all other conditions in fulfilment of the terms of the contract with St. Clara College and in fulfilment of the terms of the Vilas grant. The driveway constructed over the three-rod strip varies in width from thirteen to sixteen feet. The remaining portion of the strip became a park in its natural condition.

On July 12, 1937, the association transferred to respondent, city of Madison, all of its right, title, and interest in and to the park lands included in the Vilas grant and also to the strip of land known as Edgewood drive for the uses and purposes for which it was obtained by it.

Witnesses for appellant testified that the fences were not kept in repair and that after 1937 the driveway was open to the public as a public thoroughfare where people drove trucks and other commercial vehicles. It is contended that nothing was done by the park board or city of Madison to restrict the use of the driveway to park and pleasure-driving purposes. July 13, 1942, appellant's attorney met with the board of park commissioners of respondent city, went over the contract with them, complained about the failure to repair the fences and complained about parking on the driveway. He also informed them that the driveway was being used for purposes other than park and pleasure-drive purposes. The board of park commissioners thereafter passed a resolution prohibiting parking on the three-rod strip between 8 p. m, and 8 a. m.

It is undisputed that this property has been maintained as a pleasure drive in its wild state and that the public has been using it for such purposes; that no sidewalks, curbs, or gutters have been constructed; that it has overhanging branches and shrubbery on both sides of the road; that it has been maintained in the same condition at all times since the easement was granted; that occasionally a panel body or pickup truck has passed over it, and there is testimony a few heavy trucks have traveled over it; that at no time has there been a change in character with respect to foliage, shrubbery, and trees; that its state of wildness and naturalness has been preserved; that the alignment of the road, with respect to the width and other characteristics has been retained and trees have been preserved, even to the extent of permitting trees to remain which were actually encroaching in and upon the traveled portion of the drive; that no attempt has been made to secure any appreciable headroom above the traveled portion of the driveway; that the police department was directed to patrol the highway and enforce the "no parking" regulation and restrict driving to twenty miles per hour. Signs were placed on the driveway to this effect.

In the early part of 1945 appellant placed barriers at each end of Edgewood drive, and on January 17, 1945, served notice of re-entry on respondent. The barriers were removed by the city and this action followed.

BARLOW, J.

Appellant contends that respondent breached the contract by using Edgewood drive for purposes other than park and pleasure-drive purposes and failed to maintain fences as provided in said contract, thus vesting title in appellant after re-entry, which was made prior to the commencement of this action. It now seeks to clear the record title and contends proof that its re-entry is rightful is all that is required. While it is admitted that defendant may interpose such defense as it has, both legal and equitable, it is contended that this is not an action for forfeiture as equity has not enforced the forfeiture but has failed to relieve against it because no equitable relief from the grounds for forfeiture exists. To sustain its position appellant relies on Maginnis v. Knickerbocker Ice Co. (1901) 112 Wis. 385, 88 N.W. 300; Oconto Co. v. Bacon (1923), 181 Wis. 538, 195 N.W. 412.

In the Knickerbocker Case, supra, a strip of land was conveyed to the Knickerbocker Ice Company for railway right of way purposes with express conditions in the conveyance that the grantee was to construct fences and culverts, which conditions were never complied with, although they were demanded by the grantor. In the instant case the original conditions were complied with, including construction of the driveway, construction of the fences and gates, construction of the underground passageways, and all other conditions which entitled the grantee to a conveyance of Edgewood drive for park and driveway purposes, subject to the conditions subsequent, which were the maintenance of the fences, gates, and passageways. If the original conditions had not been complied with by the association it is possible that the right to the easement never would have attached, but where the conditions were Complied with the right to the easement was established. It is undisputed that the conditions subsequent were complied with by the association and the city over a period of more than thirty years, or from 1904 until 1937. Whether they were complied with thereafter is the issue in this case, which requires an examination of the facts and the law applicable to them.

It is a general rule, too well established to need citations, that conditions subsequent in a deed will be construed most strongly against the grantor and forfeiture will not be enforced unless clearly established. "It is also a well-established rule that, when maintenance or use is a part of the condition, there must be such neglect to maintain as to indicate an intention not to comply, to constitute a breach of condition." Burrows v. Madison Park P.D. Asso. (1922) 177 Wis. 639, 644, 189 N.W. 535; Bonniwell v. Madison, 107 Iowa, 85, 77 N.W. 530; Osgood v. Abbott, 58 Me. 73; Mills v. Evansville Seminary (1883), 58 Wis. 135, 15 N.W. 133; Rowe v. Minneapolis, 49 Minn. 148, 51 N.W. 907; Hurto v. Grant, 414, 57 N.W. 899; Jones, Real Property, sec. 680. It is said in Rose v. Hawley, 141 N.Y. 366, 378, 36 N.E. 335:

"It is not enough to show in this way that the letter of the condition is violated, but it must appear that its true spirit and purpose have been willfully disregarded by the grantee."

Thus we will examine the facts in the light of the foregoing rule.

Appellant contends that the driveway was resurfaced and placed in condition for general travel by the public, the same as other city streets, and that no action was taken by the city to restrict its use to park and driveway purposes. It is contended that the city should have passed an ordinance prohibiting trucks from traveling on the driveway and posted notices to this effect. Respondent denies that the driveway was resurfaced or black-topped. "Resurfacing" is a relative term and appellant is correct at least to the extent that the driveway was improved, and possibly to the extent that it was resurfaced. It is admitted that the driveway, as first constructed was a graded dirt road and that later some cinders were added and eventually a small amount of gravel was put on the driveway, which was oiled, consisting of a seal coat, but the average seal coat did not exceed three fourths of an inch, and at some places much less, so as to carry a lighter character of traffic than the traffic on the driveways in Vilas park. Also salvage material from Monroe street was used to fill holes that were washed out on the lower side of the driveway. However, this does not mean that it was improved to the extent that it could be used for all types of vehicles such as other city streets. A seal coat of an average thickness of three fourths of an inch will not carry heavy traffic or heavy trucks. The improvement of the driveway was merely consistent with the change in the mode of travel from carriages to private automobiles which took place between the time the driveway was constructed and' the improvement made. Thus the contention of appellant that the improvement of this driveway was consistent with the improvement of city streets for general public travel is not sustained, and it cannot be said that any improvement was made inconsistent with the purpose for which the easement was granted so as to cause the land to revert.

The failure of the city to pass an ordinance prohibiting trucks to travel on this driveway is no indication that it invited or approved its use by heavy trucks. The width of the driveway, the type of surfacing, the overhanging branches of the trees, and the trees in the driveway, all demonstrated to anyone that it was not constructed for truck travel and was not intended to be used for that purpose. The evidence shows that a few people still persisted on driving trucks over it. The city may well pass and enforce an ordinance prohibiting the use of trucks on the driveway. Its failure to have passed such ordinance heretofore and the use of the driveway for purposes for which it was evidently not intended is no more a violation of the terms of the contract than it would be if persons used it for such purpose in violation of an ordinance.

Proof was offered by appellant that fences were not properly maintained for some period of time, and particularly between the years 1942 and 1945. Proper repairs were made after the commencement of this action. While it was the duty of the city to maintain these fences, it does not follow that failure and neglect on the part of its officers under the circumstances is sufficient to adjudicate a forfeiture. During the greater portion of the period this country was engaged in war, and we recognize that it was difficult, if not impossible, to obtain material and labor to make the necessary repairs. It is said in 18 C.J., Deeds, p. 368, sec. 389: "The grantee in a deed need only substantially comply with a condition subsequent." And in Mills v. Evansville, Seminary (1883), 58 Wis. 135, 140, 15 N.W. 133, it was said:

". . . courts do not hasten to seize upon mistake or neglect, or even misuser of property, to adjudge a forfeiture in cases of this nature."

In the above case property was conveyed as a site for a seminary building, and was to revert when not used for such purpose. Here the association, and later the city, took over a large tract of land, of which Edgewood drive was a part, and expended large sums of money in developing it as a park and driveway area. Large sums were expended each year for its maintenance, and the public was greatly benefited thereby. In Burrows v. Madison Park P.D. Asso. (1922) 177 Wis. 639, 189 N.W. 535, where land was devised to the association in a will providing that it should revert in the event it was not used for park purposes, and the heirs sought to clear title by reason of the claimed failure of the association to use it for park purposes, the court held that the question was whether the evidence indicated an abandonment of the property for park purposes or whether the spirit and purpose of the condition had been wilfully disregarded so as to establish a breach. No claim is made in the instant case that there is any evidence to indicate the abandonment of Edgewood drive for park and driveway purposes. The mere failure to repair the fences during a war period cannot be said to be wilful disregard of the requirement that the fences be property maintained and establish a breach of the condition so as to cause the land to revert.

While a grantor has a right to have conditions subsequent complied with, we must still examine the claimed breach in the light of the over-all purpose of the conveyance. It is common knowledge that fences must be repaired over a period of years, but under the purpose of this easement the failure and neglect to make such repairs must be sufficient to indicate abandonment of the property for the purposes of the easement or a wilful and deliberate disregard of the rights of the grantor under the conditions subsequent. We do not consider that either of the conditions exists here. The terms and conditions of the easement have been substantially complied with and' the trial court properly dismissed plaintiff's complaint.

Respondent petitioned the court to review that part of the judgment dismissing its counterclaim. Claim is made that it is entitled to judgment quieting title to Edgewood drive because its possession for approximately' forty years has ripened into title by adverse possession, prescription, dedication, and implied grant. We do not agree with this contention because the use of Edgewood drive by the association, and later the city of Madison, was by virtue of the contract of March 30, 1904. Respondent came into possession of it under the terms of the contract and continued in possession by virtue thereof.

On review, respondent further contends that it is entitled to a deed from appellant pursuant to the terms of the contract of March 30, 1904, for which demand was made in its counterclaim. Under the terms of the contract appellant agreed that when the association obtained title to the lands described in said contract, which is now Vilas park, for the purposes of a public park, and made expenditures in the improvement of the park in a sum of not less than $10,000, appellant would convey by deed a perpetual right of way or easement, for driveway purposes only, of the land described in the contract, herein known as Edgewood drive. These conditions have been complied with, together with other conditions of the contract, consisting of the construction of a driveway, fences, gates, and underground passages. Thus the association was entitled to a deed from appellant at the time the terms and conditions of the contract were complied with, and this respondent, as grantee of the association, is entitled to a deed from appellant in accordance with the terms and conditions of the contract entered into on March 30, 1904, between the appellant and the Madison Park Pleasure Drive Association.

By the Court. — That portion of the judgment dismissing plaintiff's complaint is affirmed, and that portion of the judgment dismissing respondent's counterclaim is reversed, and cause remanded with directions to enter judgment thereon in accordance with this opinion.