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stitute a covenant merely, which might perhaps remit the Edison Company to an action for datnages. The provision was either a condition subsequent or a conditional limitation.
That it was a condition subsequent appears clearly from the differentiation made in Woodruff vs. Water Poiver Company, 2 Stockton, 489, 507. In the case cited, the owner of a farm conveyed to the defendant a portion of the farm, subject to the proviso that he should maintain and keep in repair the bridge and should erect and maintain necessary fences, etc. The grantees and the defendant, it was shown, refused to perform the covenants and agreements and a specific performance was prayed. In discussing the provision in question the Court said, at page 507:
" But it is unnecessary to pursue this investigation any further. There is another point in the case of less difficulty, which, I think, must determine the rights of the parties in this Court. There are no covenants contained in this deed on the part of the grantees. They did not sign the deed. It is true this is not necessary always. The acceptance of the conveyance and the land granted will in some cases bind the grantees to the performance of the covenants; but it cannot bind them to covenants which do not exist. I have already recited all that part of the deed in which it is said the covenant exists. There is a proviso by wiiich it is declared, that unless the giantees perform certain things specifically stipulated, the said lands and piemises shall revert to the said George Woodruff. A condition is quite distinct from a covenant. The language in this deed is appropriate to create a condition, and, as if to avoid any doubt, the legal consequences of a breach or violation of the condition is inserted. Upon covenants, the legal responsibility of their non-fulfillment is, that the party violating them must respond in damages. The consequence of the non-fulfillment of a condition is a forfeiture of the estate. Tlie grantor may re-enter at his luill, and possess himself of his former estate. The grantees were to make the raceway in conformity to their act of incorporation; they were to erect, maintain, and keep in good repair a safe and sub