
    Warner v. Railroad Company.
    1. Where the owner of land granted to a railroad company, the right to select a strip thereof for its right of way, and from the terms of the grant, and the circumstances under which it was made, it is clear that both parties understood that the right granted was to be exercised at the time of the final location and construction of the railroad, and not afterwards, a court of equity will, by injunction, restrain such railroad company from taking possession of any additional part of said land, after its railroad has been located and completed.
    2. Where the terms of a grant of a right of way are general and indefinite, its location and use by the grantee, acquiesced in by the grantor, will have the same legal effect as if it had been fully described by the terms of the grant.
    Error to the District Court of Licking county.
    In February 1847, Presley N. O’Bannon executed, and delivered to the Columbus and Lake Erie Railroad Company, the following instrument:
    
      “ The state of Ohio, Licking county.
    “In consideration of one dollar to me paid by the Columbus & Lake Erie Railroad Co., I, P. N. O’Bannon, of said county, do hereby grant and release to said company the right to enter upon any land I own which lies on the line of said company’s road, surveyed and accepted by them, and the right to run in curves and around the line in the final construction of said railroad over said land, and to hold and use a strip thereof to be selected by the engineer, not exceeding 100 feet in width, for the purpose of a railroad, as long as may be necessary, and use the materials standing or being on said strip in the construction and repair of said road, and also the right of crossing other parts of my land to get to said roadway in the construction and repair of said road, doing me no unnecessary damage. Witness my hand and seal this 2d day of February 1847.
    “ In the presence of P. N. O’Bannon. [Seal] ”
    J. D. Rogers.
    Joseph Elder.”
    O’Bannon in fact received no consideration for the rights thus granted. lie then owned the piece of land described in the plaintiffs’ petition, and also another piece north of the land now owned by the plaintiffs, and in the same township.
    In 1848 the Columbus and Lake Erie Railroad Company located and constructed its road through the piece of land last mentioned, a strip about forty-four rods in length being used for its right of way. No part of the track was placed on the land now owned by the plaintiffs, nor was any part of that land then occupied by the railroad company excepting for the purpose of taking a quantity of earth therefrom, and driving teams over a small part thereof. This occupation continued only a few months, and no notice was given of an intention on the part of the railroad company to occupy permanently any part of this piece of land. Several years afterwards however, probably in 1864, the railroad company took possession of a strip of •this land, about eight or ten feet in width and more than fifty feet in length, by placing thereon a part of an embankment.
    The acts of the railroad company above stated were acquiesced in by O’Bannon and his grantees. In March, 1874, •the Baltimore and Ohio Railroad Company attempted to take possession of another strip of the plaintiffs’ land, adjoining the railroad, thirty-six feet in width and one hundred rods in length, under the grant made by O’Bannon ; claiming the right to do so as lessee of the defendant the Sandusky, Mansfield and Newark Railroad Company, the latter company claiming as assignee of the Columbus and Lake Erie Railroad Company.
    The plaintiffs thereupon filed, in the court of common pleas of Licking county, a petition to quiet their title, and to prevent the defendants, by injunction, from interfering with their possession. The case was taken by appeal to the district court, which court dissolved the injunction which had been granted, and dismissed the petition. This proceeding is prosecuted to reverse the judgment of the district court.
    
      II. D. Sprague, for plaintiff in error.
    
      Charles H. Kibler, for defendant in error.
   Upson, J.

The instrument under which the defendants claim the right to take possession of the strip of land in controversy in this action, was executed by O’Bannon for the purpose of giving the right of way through his lands, to the Columbus and Lake Erie Railroad Company. From the language used, and the circumstances undér which the grant was made we are satisfied that both parties understood that the rights granted were to be exercised at the time of the final location and construction of the railroad; that the quantity of land required by the railroad company was then to be determined, and the selection made by the engineer. O’Bannon did not intend to create an uncertain and indefinite incumbrance on all of the lands which he owned on the line of the railroad, the limits of which could only be fixed at the will of the railroad company. On this ground, therefore, we hold that the district court erred in dismissing the plaintiffs’ petition. But we place the decision of the case also upon another ground. It is a general principle that when a right of way, or other easement, is granted by deed, without fixed and defined limits, the practical location and use of such way, or easement, by the grantee, acquiesced in by tbe grantor, will have tbe same legal effect as if it bad been fully described by tbe terms of tbe grant. Bannon v. Angin, 2 Allen, 128.

In tbis case tbe terms of tbe grant are general and indefinite, applicable to any, or all, of tbe lands owned by O’B&n-non on tbe line of tbe railroad; giving to the company tbe right to locate its road on any part of those lands, and giving to the engineer tbe right to select a strip of land not exeeding one hundred feet in width, for the purposes of tbe railroad.

Tbe testimony shows that tbe railroad was constructed through one jfiece of O’Bannon’s land, a strip about forty-four rods in length being used for tbe right of way, and that several years afterwards, probably about 1861, a strip of tbe land now owned by tbe plaintiffs was occupied by tbe railroad company, for tbe purpose of placing thereon a part of an embankment. Tbe use of these strips of land has been acquiesced in by O’Ban-non and tbe plaintiffs, and we bold that having thus exercised tbe rights granted by O’Bannon, tbe Columbus and Lake Erie Railroad Company cannot, nor can any of tbe defendants, as successor or assignee of that company, take possession of any other part of the plaintiffs’ land under tbis grant.

Judgment reversed and cause remanded for further proceedings.  