fronting Woodward avenue occupied by the church and high school buildings. Plaintiffs are resident property owners living in their own homes built in compliance with these restrictions. At the time this case was heard there remained but two vacant lots, beside the property in controversy, on either side of Josephine avenue in that subdivision and all buildings except the church and school house are single, twostory dwellings on separate lots built as and where the general plan required. This condition also continued through the Newcomb subdivision which had resident restrictions for a dwelling house costing not less than $2,000 set back from the street line, as to which the home owners have also been vigilant to the point of litigation. An examination of the record in the quite analogous case of Kingston v. Busch, 176 Mich. 566, shows that the lot upon which defendant there unsuccessfully attempted to build a two-family residence lies in the Newcomb subdivision on Josephine avenue near the lots involved in the instant case. Defendant was fully advised and warned of the restrictions contended for here and the opposition he might expect, before he entered upon this building project. Mr. Beattie, whose home was just across the street, testified: "He told me he was going to build a two-family flat. I told him about the restrictions and I recited two instances of similar cases where they attempted to build and found it impossible because the court had ruled against them. I told him if he contemplated building a flat he had better get the consent of the property owners before doing so. If he did not, he would be up against a lawsuit." * * * Plaintiff Lathers roundly sums up the situation here as follows: "With the exception of the church and the high school in Frazer & McLaughlin's subdivision on Jose phine avenue, there is no building other than a single dwelling house two stories in height set on brick or stone foundation and set back 20 feet from the front of the Josephine avenue line of the lot. The building restrictions have been observed. The residents have been very active to have the restrictions lived up to. There has been previous litigation with regard to them and I co-operated in that litigation. At the present time the residents have succeeded in maintaining the restrictions." Such restrictions are a valuable property right which complying owners can enforce and maintain. The recorded restriction in full rests on lot 35. That the written restriction on 36 limits it only to residence purposes cannot avail defendant under the conditions shown here. "That a portion of the conveyances do not contain the restrictions will not defeat the same. Although some of the lots may have written restrictions imposed upon them and others not, if the general plan has been maintained from its inception, if it has been understood, accepted, relied on, and acted upon by all in interest, it is binding and enforceable on all inter se. It goes with the land, and is equally binding on all purchasers with notice (citing cases)." Allen v. City of Detroit, 167 Mich. 464 (36 L. R. A. [N. S.] 890). The following reflection in Kingston v. Busch, supra, is equally applicable to the situation presented by this record: "We are of opinion that a general plan of improvement is clearly indicated, and that there has been no departure from that plan. The plan was to have one residence for one family only upon each lot." The decree appealed from granting the permanent injunction prayed for is affirmed, with costs to plaintiffs. WIEST, CLARK, BIRD, and SHARPE, JJ., concurred. FELLOWS, C. J., and MOORE, J., did not sit. The late Justice STONE took no part in this decision. WORTMAN v. STAFFORD. 1. EASEMENTS LICENSE-PERMISSIVE USER-EVIDENCE- ORAL PROOF. In a suit to quiet title to a strip of land in which defendant claimed a right of way by prescription, evidence that a gross sum far in excess of the value of the land itself was paid down by defendant's father for the right to use it as a way, that the strip was defined and set off by a fence, that possession for said purpose was taken, and that no rent was ever thereafter paid or claimed during the 40 succeeding years in which said strip was used by the grantee and his successors, held, to indicate an easement rather than a lease or license, although the transaction rests in oral evidence with no proof that the agreement was in writing. 2. SAME PRESCRIPTION-LIMITATIONS, STATUte of. If the right granted to use the strip of land as a way was a mere license, or only permission, with or without consideration, without any permanent or actual interest in the land itself, it could not ripen into an easement by prescription; but if the right, though orally granted, was in the nature of an easement or a permanent interest in the land, without profit, in the nature of a dominant estate, with the right at all times to enter and use it for the purpose specified, it might be acquired by prescription in the same manner as title to the fee of the land and within the same time. 3. SAME-PRESUMPTIONS-EVIDENCE-SUFFICIENCY. Testimony on behalf of plaintiff held, insufficient to establish that the undisputed user running through 40 years was permissive only as against the presumption of an easement from the undisputed facts in the case. 4. SAME LIMITATIONS, STATUTE OF "TACKING ON." Where the statute of limitations had run its course in favor of defendant's predecessor long before defendant came into possession, the question of his right to "tack on❞ the period of his use and occupation to that of his predeOn acquisition of easement by prescription where original use was under license, see note in 44 L. R. A. (N. S.) 89. cessor is not involved, since peaceable possession and user continued in him as of right and not of suffrance and was but confirmatory of his established easement. 5. SAME CONVEYANCES WITHOUT SPECIAL MENTION. Plaintiff's contention that defendant acquired no right to said driveway because no mention is made of it in his muniments of title to the land it connects with the highway is without merit, since the easement rested upon the servient estate it crossed as an incorporeal hereditament appurtenant to the otherwise isolated land of defendant, for the benefit of which it was secured, incident to that estate as directly essential and convenient to its use and enjoyment, and as such would pass with it by inheritance or conveyance. RIGHT PASSES WITH TITLE TO LAND Decided Appeal from Hillsdale; Chester (Guy M.), J. Submitted October 27, 1921. (Docket No. 6.) March 30, 1922. Bill by La Vern Wortman against George M. Stafford to quiet title to land, and enjoin suit at law. From a decree for defendant, plaintiff appeals. firmed. Merton Fitzpatrick, for plaintiff. C. A. Shepard and Paul W. Chase, for defendant. Af STEERE, J. Plaintiff owns and resides upon 40 acres of land in Hillsdale county described as the S. E. 14 of the N. W. 14, section 20, in Allen township. A highway runs east and west through it about 20 rods south of its north line. Defendant owns the 40 acres joining plaintiff's on the north, which cannot be reached by a highway and is accessible to him only by going over the land of others. These two pieces of land are not claimed to have ever belonged to the same owner or been a part of the same farm. Plaintiff bought his 40 acres in 1915. Defendant It acquired full ownership of his 40 acres in 1918. had previously belonged to his father, Jonathan Stafford, who died about 1912 leaving it to his children and defendant subsequently bought the interest of the other heirs, his home being on a farm which he owns south of the east and west highway. He used and belligerently claimed a right of way by prescription from the highway north to his 40 acres over a strip of land in plaintiff's 40 acres about 20 rods long and 2 rods wide adjacent to its west line. Diversity of opinion on this subject between these parties led to open hostilities and litigation, culminating in this bill of complaint, wherein plaintiff prays that his "title and possession" of said strip may be quieted and defendant restrained "from further prosecuting any suits at law that he may have started" and from "using or threatening to use personal violence towards your orator." Defendant answered in denial with assertion of title to a right of way contractually secured by his father and perfected by prescription, in its nature a "perpetual easement incident to the property of the late Jonathan Stafford, his successors and assigns." Defendant's father, Jonathan Stafford, bought the 40 acres lying north of plaintiff's, which then belonged to John Watkins, considerably over 40 years before this suit was begun. At first in getting to it from the highway he took liberties in traveling over Watkins' land which irritated the latter and some friction followed between the two. This soon culminated in an amicable adjustment between them under which the elder Stafford secured from Watkins a right of passage to his 40 along the way now in dispute, paying him $50 therefor, although the then value of the land upon which the right rested did not exceed $10, as the trial court determined. He then built a fence two rods east of the west line fence of Watkins' 40 |