161. Where a corporation is incompetent by its charter to take title to real estate, a conveyance to it is not void, but only voidable; and the sovereign only can object. Bank v. Matthews, 98 U. S. 621; Christian Union, etc., v. Yount, 11 Otto 352; American Bible Society v. Marshall, 15 Ohio St. 537. It is a well established principle that reservations and exceptions, which are not definitely fixed by the grant containing them, may be designated by the grantor, and if for any reason he fails to so designate them, the grantee may do so. Holmes v. Seeley, 19 Wend. 506. If a way is expressly granted and its locality is not defined, it may be fixed by the acts of the parties and when once fixed it cannot be changed. Bannon v. Angiers, 2 Allen 128; Wynkoop v. Berger, 12 John. 222. The owner of the way may locate it, providing. he does so without unnecessary injury to the other party. Hart v. Conner, 25 Conn. 331; Garland v. Furber, 47 N. H. 301; Russell v. Jackson, 2 Pick. 574; Jennison v. Walker, 11 Gray 426. The uncertainty in a reservation may be cured by the acts of the parties. Benn v. Hatcher, 81 Va. 25; Gill v. Grand Tower, etc., 92 Ill. 249; Dygert v. Mathews, 11 Wend. 35; Crocker v. Crocker, 5 Hun 587.
The opinion of the court was delivered by
BARTHOLOMEW, J. This was an action under our statute in the nature of ejectment for a quarter section of land, coupled with a claim for damages for withholding the same. Under the answer the issues were upon the amount of damages, and the ownership of a strip of land 400 feet in width across said tract, the title to which defendant claimed to hold under the reservation or exception hereafter noticed. The land in dispute was a part of the original grant of lands by congress to the defendant railroad company. Plaintiff traced his title through a certain deed from defendant to one Davis, dated September 15, 1876, and conveying the S. of said quarter section, and a deed from defendant to one Hamilton, dated November 10, 1878, conveying the N. ļ of said tract. Davis and Hamilton conveyed to plaintiff in December, 1878, without reservation or exception. Plaintiff also showed possession of said strip of land in defend- ant since the fall of 1885, and introduced evidence on the ques-
