the conditional easement in perpetuity created by the deed. Being the owners in fee of the land, they could, of course, convey it to another; and their grantee would stand in their shoes. Why, then, cannot such grantee bring an action against one claiming an easement on condition to take advantage of condition broken or enforce its performance? It is said that he cannot because of the long-settled, common-law principle that a condition in a deed can only be reserved to the grantor or his heirs, and not to a stranger. This rule applies to land conveyed upon condition subsequent, and the reason of the rule is that the estate is not defeated, though the condition be broken, until entry by the grantor or his heirs, and there is nothing to assign, save a mere right of entry, which at common law is not assignable. Nicoll v. Railroad Co., 12 Barb. [N. Y.] 460; Id., 12 N. Y. 121; 1 Greenl. Cruise, tit. 13, chap. 1, § 15.

"No such rule can apply here, because the reason does not exist. In this case the plaintiff does not claim as the assignee of a mere right of action or right of entry on land, but he claims as owner in fee of land burdened with an easement granted upon condition, which condition is alleged to have been broken. It would be a singular rule of law which would forever prevent the owner in fee of lands from questioning the right of another to maintain an easement upon his land, when there existed a violation of the express condition upon which the easement was granted. No such rule exists."

See, also, Reichenbach v. Railway Co., 10 Wash. 357 (38 Pac. 1126).

Numerous authorities are cited in support of the proposition that the right to take advantage of the breach is neither assignable nor severable, and the leading case of Nicoll v. Railroad Co., 12 N. Y. 121, is relied upon. In this line of cases, however, the court in each instance held the conveyance to be a granting of the fee in the land, with a condition subsequent; but, as outlined in the decision quoted, supra, the rule in case of an easement is different, as the title to the land has never been divested, and the owner of the land, whoever he may be, can take advantage of the breach. It is further contended by the defendant that the language used in the conveyance to com

plainant, "excepting the conditional right of way heretofore granted to the Ludington Railroad Company," created an exception of the land described in the conveyance of the right of way, and that the complainant never purchased the land upon which the right of way is situated. If such had been the intention of the parties, it would have been easy to so have expressed themselves in the deed. As this court said in the case of Bolio v. Marvin, 130 Mich. 82 (89 N. W. 563):

"There was not the sligatest occasion to include this land in the deed, unless some interest was intended to be vested in the grantee."

The case of Reynolds v. Gaertner, 117 Mich. 532 (76 N. W. 3), is called to our attention, but in that case the exception expressly provided for the exemption of a certain specified amount of land; the following language being used, "except two and forty-six hundredths acres to the Chicago & Canada Southern Railroad."

In the instant case the language used in this conveyance, it seems to us, is very significant, and clearly indicates that the grantors did not claim to except or reserve a fee in the land. We think the rule is well established in Michigan that the assignee or grantee has been held to be the proper person to enforce the forfeiture of an easement, and is entitled to all the rights his or her grantor might be, or have been, entitled to. In this connection the language in the instrument of December 11, 1901, is significant:

"The grant shall be void and said right of way shall revert to, and the title thereto revest in, the parties of the first part, their heirs, successors or assigns."

French v. Lumber Co., 135 Mich. 424 (97 N. W. 961); Williams v. Flood, 63 Mich. 487 (30 N. W. 93); Gamble v. Gates, 92 Mich. 510, 514 (52 N. W. 941); Monroe v. Bowen, 26 Mich. 523; Johnson v. Moore, 28 Mich. 3; Haskell v. Ayres, 32 Mich. 93; Macomber v. Railroad

174 MIOH.-10.

Co., 108 Mich. 491 (66 N. W. 376, 32 L. R. A. 102, 62 Am. St. Rep. 713); City of Detroit v. Railroad Co., 23 Mich. 173, 214, 215.

It is urged that the principle of equitable estoppel should be applied, because complainant waited until expensive improvements, which were a great benefit to his property, were made; and that he stood by without objection and allowed defendant to expend large sums on the right of way.

Complainant testified that some time in 1905, when the construction was begun, he protested to the men in charge of the work, and that he ordered them off his property, and that when they failed to do so he placed the matter in the hands of his attorney, and that no further steps were taken, because immediately negotiations were entered upon with a view of leading to a settlement. These negotiations could amount, at the most, only to a parol license to the defendant to build its road. We do not think that it can be said, under these circumstances, that complainant has estopped himself from asserting his rights. Wood v. Railroad Co., 90 Mich. 334 (51 N. W. 263).

To hold that the complainant, in this case, is estopped from asserting his alleged rights would, in view of the fact that the instrument of date December 11, 1901, simply granted an easement, operate as a transfer of the title to real estate; and title cannot be obtained in that way. Nowlin Lumber Co. v. Wilson, 119 Mich. 406 (78 N. W. 338); Minneapolis, etc., R. Co. v. Marble, 112 Mich. 4, 10 (70 N. W. 319); Harlow v. Railroad Co., 41 Mich. 336 (2 N. W. 48); Nims v. Sherman, 43 Mich. 45, 52 (4 N. W. 434); Stevens v. City of Muskegon, 111 Mich. 72, 83 (69 N. W. 227); Petit v. Railroad Co., 119 Mich. 492, 493 (78 N. W. 554, 75 Am. St. Rep. 417); Stewart v. McLaughlin's Estate, 126 Mich. 1, 5 (85 N. W. 266, 87 N. W. 218); Moore v. Pear, 129 Mich. 513, 515 (89 N. W. 347).

The judge, in his decree, provided—

"That said defendant, within 30 days of the date of this decree, may commence proceedings under the statute to condemn said property now occupied by it and described in the fifth paragraph of this decree, and in default thereof that complainant, within 10 days of the expiration of said 30-day period, shall execute, acknowledge, and deliver to said defendant a deed of said premises described in the fifth paragraph of this decree, upon the payment to complainant by defendant the sum of eight hundred and fifty dollars ($850), which sum is hereby adjudged and decreed to be the value of said property, together with such other damages as complainant has sustained by reason of the acts and possession of defendant, as aforesaid, and also pay the costs of this suit to be taxed."

The stipulation by which this cause was brought into court provided that the court should determine the value of the premises and damages, past, present, or prospective, suffered by the complainant. An examination of the record satisfies us that the court was justified in fixing the amount of damages that he did, and his determination with reference thereto will not be disturbed.

The decree is affirmed, with costs.

STEERE, C. J., and MOORE, MCALVAY, BROOKE, STONE, OSTRANDER, and BIRD, JJ., concurred.

ARNOLD v. BRECHTEL.

1. AMENDMENT-APPEAL AND ERROR-PLEADING.

The allowance, at the trial, of an amendment to plaintiff's declaration in ejectment, so as to relinquish claim to part of the land described in the pleading, was discretionary with the trial court and not reviewable.

2. PARTIES-HUSBAND AND WIFE-EJECTMENT. Where plaintiff's declaration in ejectment originally covered lands owned by the entirety by defendant and his wife, and plaintiff by amending it, included only land claimed by him that defendant had invaded or trespassed upon, defendant's wife, who had not so far as shown claimed title to the land, was not a necessary party to the action. 3 Comp. Laws, § 10950 (5 How. Stat. [2d Ed.] § 13150).

3. DEEDS-JUDICIAL SALE-ESTATES OF INCOMPETENTS-GUARDIAN AND WARD.

Since the sale of land of an incompetent under guardianship is not open to collateral attack for irregularities in the proceedings, if the license to sell was granted and the guardian executed and acknowledged a deed in legal form conveying the premises (3 Comp. Laws, § 9165, 4 How. Stat. [2d Ed.] § 11315), a sale of premises, incorrectly described in petition, notice and license to sell as being in the adjacent town and range was not void where the guardian's deed contained a correct description of the land to be conveyed.

4. ALTERATION OF INSTRUMENTS-DEEDS

EVIDENCE.

Interlineations made in a guardian's deed of property sold under an order of the court, unexplained, are presumed to have been inserted befere execution: it is for the party attacking the instrument to show its invalidity.

5. BOUNDARIES-MEANDER LINE-DESCRIPTION.

In a fractional section divided into lots, premises bounded on one side by a creek or stream are not affected by the fact, as shown by the original government survey, that the meander lines of the creek run over the land at one side of the true bed of the stream: they are not intended as boundaries but rather to determine the quantity of land in the parcel.

6. EVIDENCE-EJECTMENT.

Evidence of an original patent from the government may be dispensed with if plaintiff in ejectment shows a conveyance from parties who have been in possession for 20 years and upwards, using the ground for pasture, cutting the timber and building cabins thereon.

Error to Bay; Collins, J. Submitted November 11, 1912. (Docket No. 39.) Decided March 20, 1913.

Ejectment by John C. Arnold against John J. Brechtel. Judgment for plaintiff. Defendant brings error. Affirmed.