Cope, J. concurring.

The third section of the act “to provide for the Construction of Canals, and for Draining and Reclaiming certain Swamp and Overflowed Lands in Tulare Valley,” passed on the 11th of April, 1857, is a grant upon condition precedent, and not, as counsel of the respondent contend, upon condition subsequent. This is evident from the clause following the condition, and restricting the right of the grantees to take the odd sections until “ after the reclamation of the lands’,” and the accompanying proviso, that none of those sections shall be subject to private entry. The proviso was altogether unnecessary, if by the act it was intended to vest an estate immediately. The consideration is the reclamation of *194the lands—a service to be rendered in future—and the grant is of one-half of the lands, upon condition that such reclamation be made, the grantees to take the one-half after the reclamation. This construction is not affected by the fourth section, which declares that a failure to comply with the provisions of the act, or any part thereof, by the grantees, shall work a forfeiture of the grant. The term grant in this section refers to the general rights conferred by the act, and does not imply that any title to the lands vested. The third section, therefore, does not operate to pass any present estate to the grantees. It passes no estate until the performance of the condition annexed—that is, until the reclamation of the lands. The grant is not, however, any the less a contract between the State on the one part, and the grantees ,on the other. It is a contract by which the State grants certain lands upon condition of work to be performed, the grant to take effect when the work is done. It is a contract by which valuable rights may be acquired absolutely, upon the performance of the acts specified as the consideration moving to the State. The grantees, as appears from the evidence in the record, and as found by the Referee, entered upon the performance of those acts in the fall of 1857; they then employed an engineer, and surveyed the line of the proposed canals; and in February following, commenced the work of excavating one of the canals, and continued the same, without cessation, until June, 1858. They thus brought themselves within the terms of the first section, providing for the commencement of “ the canals, or some one of them,” within one year after the passage of the act. F or the completion of the reclamation they have five years; and if within this period it be effected, the title to the alternate sections designated will vest in them absolutely. By the work already performed, the right to proceed with the reclamation, and when this is accomplished, to take one-half of the lands, has become fixed. With the contract, and the rights of the grantees thereunder, acquired by the part performance of its consideration, the Legislature cannot interfere. They are under the protection of both the Federal and the State Constitutions. The Act of April 20th, 1858, repealing the act making the grant, and declaring the rights and privileges thereunder forfeited, is, therefore, unconstitutional and void. It is a simple, undisguised attempt, n6t merely to impair but to destroy contract rights. (Fletcher v. Peck, 6 Cranch, 87; State of New Jersey v. Wilson, 7 Id. 164; Jewett et al. v. Taylor et al. 9 Id. 43; The State v. McCauley et al. 15 Cal. 429; McCauley et al. v. Brooks, [ante]; Smith on Statute *195and Const. Law, secs. 248 to 261; Story on the Const. secs. 1374 to 1396.)

The agreement between the plaintiff and defendant, for the sale and ultimate conveyance of five of the sections, was made upon a full knowledge of the rights of the grantees of the State. There is no pretense of misrepresentation in the case. The act of the Legislature is referred to in the agreement; the construction of the canals had been commenced at the time; and the vendor covenants that he and his associates will execute a good and sufficient deed to the defendant, upon the payment of the several notes given as the consideration, and will complete the canals within the five years allowed; and that by means thereof, and the operation of the statute, they will have a good and valid title to the premises. The agreement anticipates a possible failure of title, and expressly provides that, in case it shall at any time be determined that the lands designated in the act do not belong to the State, or it shall at any time become apparent that the vendor and his associates cannot make a good title, in consequence of forced sales, or from any other cause, the notes remaining unpaid shall be surrendered, and the money paid shall be refunded. To this agreement the defendant must look to obtain a return of his money, in case the title fails. He cannot resist the first payment merely because the Legislature has attempted to destroy, by an unconstitutional act, the contract of the State with the vendor and his associates.

Judgment affirmed.