Argument for Plaintiffs in Error. An easement, but not a fee, may be created or transferred without definite location and the grantee authorized to fix by actual selection and user the boundaries within which his rights must be exercised. This is what the Cincinnati act provided for and this is one reason why this court held as it did in the Cincinnati case. Bannon v. Angier, 2 Allen, 128; Railway Co. v. Williams, 53 Ohio St., 268; Warner v. Railroad Co., 39 Ohio St., 70. The uses of the land referred to in the Cleveland act show that the fee was to be granted. It is apparent that in the Cincinnati act two specified uses and none other are contemplated. On the other hand, in the Cleveland act a general use for such purposes as the city through its legislative body might determine. We submit that it clearly appears from a comparison of the two acts that in the one (the Cleveland act), the state's attitude is that of a proprietor about to part with his ownership and providing for the conditions growing out of such a change; while in the other (the Cincinnati act), the state's attitude is that of a proprietor who is conferring certain easements in his land and is solicitous that they shall not be so exercised as to unnecessarily interfere with his permanent and continuing rights as owner of the fee. On March 26, 1864, an act was passed "to authorize the city of Toledo to enter upon and occupy a part of the Miami and Erie canal as a public highway and for sewerage and water purposes. 61 O. L., 67, 68 O. L., 17. Argument for Plaintiffs in Error. It will be seen at once that this act was in almost every respect the same as the Cincinnati act, while in the same measure the Cleveland act differed from both. The state continued to use the canal and did not abandon it until 1869. Malone v. Toledo, 28 Ohio St., 643; Paige v. Cherry, 17 C. C., 579. The nature of the consideration for the Cleveland grant shows that it was intended to pass the fee. Three obligations are laid upon the city of Cleveland by the act of April 29, 1872: first, the payment of damages arising out of the vacation and abandonment of the canal or the indemnification of the state against the same; second, the establishment of a new connection between the canal and the Cuyahoga river, incident to which was the acquisition of necessary right of way and the performance of all the construction work; third, the perpetual keeping of the channel of the Cuyahoga river in good navigable order through to Lake Erie. Dalrymple v. Wyker, 60 Ohio St., 108. The construction placed by the attorney general and the governor upon the Cleveland act is entitled. to great weight. State v. Vanderbilt, 37 Ohio St., 641; Work v. Corrington, 34 Ohio St., 75; United States v. Hermanos y Compania, 209 U. S., 337. It will be remembered that in the Cincinnati case that portion of Eggleston avenue lying between Pearl street and Front street had been actually vacated by action of the city council, in striking contrast to which is the retention by the city of Cleveland in its lease to the Valley Railway of the right to open and use streets, without com Argument for Plaintiffs in Error. pensation over any part of the property in question. 33 Cyc., 37; Olcott v. Supervisors, 16 Wall., 678; 1 Elliott on Railroads, Sec. 33. Where in a conveyance mention is made of the use to which it is intended that the land granted shall be put by the grantee, the title does not revert or become susceptible to forfeiture merely because that use is departed from. Upon this proposition the authorities are practically unanimous. Wright v. Morgan, 191 U. S., 55; Stuart v. Easton, 170 U. S., 383; Rawson v. Uxbridge, 7 Allen, 125; Commissioners v. Young, 59 Fed. Rep., 96. The points of similarity between the Toledo and the Cincinnati acts and the Cleveland act show that the vital changes made in framing the latter must have been intentional, and they hence assume a controlling importance. Hadley v. Perks, L. R., 1 Q. B., 457; Bloom v. Richards, 2 Ohio St., 387. We have here the state's enactment of 1872, the intent and purpose whereof seems plainly to authorize the grant afterwards executed by the governor of the state, transferring the entire interest. of the state in these lands to the city of Cleveland. We have also the payment of a large and valuable consideration still enjoyed by the state, which consideration was full, adequate and complete for the fee simple conveyance. We have also the state's repeated and uniform recognition and confirmation not only of such transfer of title, but also of the lease from the city of Cleveland to The Valley Railway Company-by statute, by joint resolutions, and by a consistent course of conduct covering a period of nearly thirty-eight years. We have also the change of position by the city of Cleveland, Argument for Plaintiffs in Error. and both the defendants, involving vast expenditures and huge investments, all in reliance upon the state's conduct in that regard, the state knowing all the while what was being done, and that its conduct was the inducement thereto. In the face of all this, the state now seeks to repudiate its entire course of conduct, and to entail immense losses on the defendants and the city of Cleveland, by virtually destroying that which they have built up, in the reliance aforesaid. The city of Cleveland and the defendants having parted with full, adequate and valuable considerations, are now to be deprived of that for which these considerations were paid. Having been induced to part with their property to the advantage of the state, they are to be deprived of that for which they bargained. A plain case of estoppel is presented. Every consideration of equity, good conscience and fair dealing, points to this conclusion. Clearly, no individual or private corporation could for a moment escape the estoppel. We cite, therefore, on the doctrine of estoppel as applicable to the state under the facts set forth in this case: Flowers v. Logan County, 138 Ky., 59, 137 Am. St. Rep., 361; Curran v. Arkansas, 15 How., 304; Hall v. Wisconsin, 103 U. S., 5; Davis v. Gray, 16 Wall., 203; People v. Stevens, 71 N. Y., 527; Chapman v. State, 104 Cal., 690, 43 Am. St. Rep., 158; Carr v. State, 127 Ind., 204, 22 Am. St. Rep., 626; State v. Taylor, 28 La. An., 460; Fletcher v. Peck, 6 Cranch., 87; State, ex rel., v. Power Co., 32 L. R. A., 391; Attorney General v. Railroad Co., 27 N. J. Eq., 1; Commonwealth v. Turnpike Co., 153 Pa. St., 47; Audubon County v. Emigrant Argument for Plaintiffs in Error. Co., 40 Ia., 460; Sioux City v. Railway Co., 129 Ia., 694; Walker v. United States, 139 Fed. Rep., 409, 148 Fed. Rep., 1022; United States v. Budd, 43 Fed. Rep., 630; United States v. White, 17 Fed. Rep., 561; United States v. Tin Co., 23 Fed. Rep., 279, 125 U. S., 273; People, ex rel., v. Auditor General, 38 Mich., 747; Simplot v. Railway Co., 16 Fed. Rep., 350; Los Angeles v. Cohn, 101 Cal., 373; Oliver v. Synhorst, 48 Ore., 292; Turnpike Co. v. Waechter, 15 C. D., 605; United States v. Wagon-Road Co., 54 Fed. Rep., 811; United States v. Railroad Co., 142 U. S., 615. In the case at bar the act of the governor in executing this deed, was not the act of an agent or official of limited power. It was the executive act of the state, performed by the state in the only way possible for the state to act executively. Moreover, the mode of execution of the enactment in question; and the form and scope of the grant, were prepared and approved by the attorney general, whose action in that behalf was expressly invoked by the terms of the statute. If the state is not absolutely concluded by the form of the conveyance thus sanctioned both by the attorney general and the governor, their practical construction of the legislature's intent is entitled to very great weight, and taken in connection with all the other facts pleaded, goes far to feed the estoppel. Insurance Co. v. Hoge, 21 How., 35; Edwards v. James, Admr., 7 Tex., 372; Scanlan v. Childs, 33 Wis., 663; State v. Smith, 71 Ohio St., 39; Indiana v. Milk, 11 Fed. Rep., 390; People v. Stevens, 71 N. Y., 527; Lindsey v. Hawes, 2 Black (U. S.), |