23 Pa. St. 348; Ackroyd v. Smith, 10 C. B. 164; Garrison v. Rudd, 19 III. 558; Hills v. Miller, 3 Paige, 254; Story v. Railroad Co., 90 N. Y. 122; Lathrop v. Elsner, 93 Mich. 599; Walz v. Walz, 101 Mich. 167).

Wilson & Cobb, for defendant:

By the deed from Jenks, defendant's title became complete, since the owner of the dominant estate may extinguish the easement by a release to the owner of the servient tenement. 6 Am. & Eng. Enc. Law, 146, and cases cited; Washb. Easem. 516; Bell v. Todd, 51 Mich. 21; Morgan v Meuth, 60 Mich. 238; Richards v. Railroad Co, 153 Mass. 120.

MCGRATH, C. J. Complainant is the owner of lots 5, 6, 7, 8, and 9, on the south-west corner of Fourth and Willow streets, just outside of the city of Jackson. The lots front on Willow street, and were numbered from west to east, but they had for many years been inclosed and occupied as one parcel, the dwelling thereon fronting on Fourth street.

The territory was platted and the plat recorded in 1870, by one Lathrop. It is only claimed for this plat that it was an express common-law dedication. Lathrop, in October, 1871, conveyed the land north of the center of Willow street by metes and bounds, subject to the public use of Fourth, Willow, and other streets. In July, 1873, Lathrop conveyed to one Bush the territory lying south of the center line of Willow street, excepting the rights of the public in the streets. In 1874 Bush con

veyed these lots to one Babcock, she to Miller, he to Jenks, and Jenks, in May, 1884, to complainant, by lot number and reference to the plat.

Defendant, in 1883, acquired title to the land north of the center of Willow street, and to certain of the lots west of complainant's lots. In October, 1883, Bush and -wife conveyed to defendant certain lots, and "all our right, title, and interest" in the south half of Willow

12

street, from the west line of Fourth street to the west line of lot 5. In February, 1884, Jenks, complainant's immediate grantor, conveyed to defendant the land in Willow street from Fourth street west to the west line of lot 5. The deed contained the following:

"It is understood and agreed that this deed shall not only convey all present interest of said grantor in and to the lands herein described, but all interest that might be acquired by her, or her heirs or assigns, in and to any part thereof in case of the vacation of what is marked upon said plat of Summitville as Willow street, as the owner of lots 5, 6, 7, 8, and 9, in said block 2, and consent is hereby given to the closing of said Willow street."

A controversy arose between complainant and defendant, soon after complainant's purchase. Defendant succeeded finally in constructing and maintaining a fence across the east end of Willow street, and this bill is filed to compel the removal of the obstruction.

Complainant insists that the interest of an abutting owner in a street is in the nature of an easement appurtenant to the land, passing only with a conveyance of the land. The cases cited hold that the grantor of a right of way has the right to limit the grant, and that the grantee takes it subject to restrictions imposed, and cannot enlarge or abuse his privilege (Davenport v. Lamson, 21 Pick. 72; Shroder v. Brenneman, 23 Pa. St. 348); or, that a grantor, having platted and conveyed certain lots in a city, cannot afterwards appropriate the way to any use inconsistent with its use as a public street (Story v. Railroad Co., 90 N. Y. 122; Hills v. Miller, 3 Paige, 254; Watson v. Bioren, 1 Serg. & R. 227).

The right of way, in the present case, arose from the plat and the subsequent conveyances. As between the parties, the conveyance by Jenks and the consent to the closing of the street were a release or relinquishment of record of the right to use the street. It is unimportant. whether Jenks was at that time the owner of the fee in the street, or whether the fee passed by the conveyance

from Bush to defendant. Whatever interest Jenks had passed by the conveyance to defendant. The rights of the public or of other abutting owners are not in ques tion, and the original grantor has parted with his interest. In such case, owners of land on opposite sides of the same street may, as between themselves, consent to the closing of the street, or anticipate its vacation, and either may convey to the other all interest in the land occupied by the street. They have, as between themselves, the disposing power over the estate. Washb. Easem. p. 26, par. 13.

The decree is affirmed, with costs to defendant.
The other Justices concurred.

SUTLIFF v. DAYTON,1

SALE-SPECIFIC PERFORMANCE-FRAUDULENT APPRAISAL OF Goods. Complainant agreed to sell a stock of goods to defendant, and take in payment certain real estate at specified prices. The goods were to be invoiced at cost, as shown by the bills, except such as were damaged or shopworn. Each party selected an appraiser. Complainant and his clerks assisted in making the inventory, and the quantity of the goods was determined by them. The invoices were not produced, but complainant represented that the cost price was attached to each article, and the inventory was made upon that basis. Shortly after taking possession of the stock, and before a final settlement, defendant became dissatisfied, and demanded a new appraisal, which was refused. Defendant thereupon had the stock reappraised by three experienced, disinterested persons, having first notified complainant to be present and produce his bills, with which request complainant did not comply. This appraisal was based upon an estimate of the cost of the goods, except as to those damaged, 'Rehearing denied December 30, 1895.

which were invoiced at their present value; and the total valuation of the stock was shown to be much less than by the former inventory. In a suit for specific performance, it appearing that complainant had raised the cost mark on the goods, altered and arranged them so as to conceal damage and shop wear, and misrepresented the quantity to the appraisers, it was held that defendant was not concluded by the original inventory, but should be charged with the amount of the second appraisal only. GRANT, J., dissenting.

Appeal from Ingham; Person, J. Submitted April 17, 1895. Decided July 9, 1895.

Defendant

Bill by Charles H. Sutliff aganst George M. Dayton for the specific performance of a contract. appeals. Decree modified.

S. L. Kilbourne, for complainant.

M. V. Montgomery, for defendant.

MCGRATH, C. J. This is a bill to compel the specific performance of a contract dated December 21, 1892, whereby complainant agreed to sell to defendant two stocks of merchandise, one located at Lansing and the other at Mt. Pleasant, consisting of millinery and ladies' and gents' furnishing goods. It was provided that all goods should be invoiced "at the actual cost, as shown by bills, except such as are damaged or shopworn; all untrimmed hats at $1.50 per dozen, and the trimmed hats at one-half the retail price; the furniture at prices as agreed upon verbally between the parties." It was further agreed that complainant was to take in payment two houses and lots, one at $6,500 and the other at $6,000; and that, "if said stocks shall invoice over the amount of the two terraces as above written, he shall take as payment for said amount, over the $12,500, any real-estate property belonging to said Dayton, at his list price." Complainant selected one Brisbin, and defendant one Watrous, to inventory the stocks. Watrous knew very little about the millinery business.

Complainant, his

wife, son, and clerks, assisted in making the inventory, which was completed about January 4, 1893. The inventory of the stock at Lansing amounted to $18,409.98, and that of the Mt. Pleasant stock to $3,125.37, making a total of $21,535.35. Pending the inventory, defendant conveyed to complainant the houses and lots specifically referred to in the contract, and, upon the completion of the inventory, defendant took possession of the stocks of goods. Shortly thereafter, and before anything further was done respecting a final settlement under the contract, defendant became dissatisfied with the inventory, and, in writing, demanded a new appraisal. Complainant did not respond.

On January 30, 1893, defendant wrote to complainant as follows:

"I wrote you I should insist on a new invoice. Unless you call to-day, and make some arrangement in regard to it, I shall get competent parties, and proceed at once to take invoice."

Again, on February 3, 1893, defendant wrote as follows:

"Since the inventory, or pretended inventory,

I have found many discrepancies between the inventory and measurements and cost; so many as to make it certain that there have been either serious mistakes made, or fraud practiced upon me. The difference between the value of the goods upon the basis which they were to be valued by our contract, and the aggregate of the inventtory value by this pretended inventory, is, in my judgment, very large. I propose to employ disinterested and thoroughly competent men to take a correct inventory of these stocks at an early date. I much desire to avoid litigation with you, and invite you to be present at and participate in such inventory. A correct account of sales has been kept, so that no trouble need be anticipated in making an absolutely correct statement. Will you kindly indicate whether or not you will join in or be present at such an inventory, and, if so, at what early date it would best suit your convenience to have the inventory commence?"