store and wareroom where the beer complained of was kept; and therefore, under the instructions of the court, if he was in the lawful and bona fide possession of the beer in the store or wareroom, and drank any portion of it himself, or gave away a glass or a bottle of it to a friend, the jury were required to return a verdict of guilty. This is not the law. If Standish, directly or indirectly, kept or maintained, by himself or with others, or if he aided, assisted, or abetted in keeping or maintaining, any club-room, or other place like a club-room, or a place of some similar kind or character, in which intoxicating liquors were received and kept for the purpose of use, gift, barter, or sale as a beverage, or for distribution or division among the members of the club or association, he could be convicted therefor. Rice v. State, 3 Kan. 141; White v. State, 20 Wis. 246; State v. Grisham, 2 S. W. Rep. 223.

The instructions in this case, however, were not sufficiently limited to embrace the offense attempted to be described in the second count of the indictment, under the provisions of section 16 of the prohibitory act. They allowed the jury to find Standish guilty if he used the beer himself, or gave it away, although not done in violation of the statute, nor to evade any of the provisions thereof.

The judgment of the district court will be reversed, and the cause remanded for a new trial upon the second count of the indictment.

(Supreme Court of Kansas. December 10, 1887.) BOUNDARIES-ESTABLISHMENT BY PAROL AGREEMENT.

If a corner and a division line are established by a parol agreement between two proprietors of adjoining lands, and such corner and division line are acted upon and acquiesced in for a period of time equal to the statute of limitations, such corner and division line are binding and conclusive on the parties and those claiming under them. VALENTINE, J., dissenting.

(Syllabus by the Court.)

Error to district court, Franklin county; J. W. GREEN, Judge pro tem. On May 31, 1884, H. F. Sheldon commenced his action against Robert Atkinson, to recover the immediate possession of the following described lands and tenements situate in Franklin county: Commencing 935 feet south of the N. E. corner of the N. E. of section 2, in township 17, of range 19; running thence south 40 feet; thence running west to the Southern Kansas Railway; thence running north 40 feet; thence east to place of beginning. On June 26, 1884, Atkinson filed his answer containing a general denial, and also setting up the 15-years statute of limitation. On January 7, 1885, Sheldon filed a reply, denying generally the new matter alleged in the answer. Trial had at the September term of the court for 1885, before J. W. GREEN, Esq., as judge pro tem. The court, having heard the evidence and the argument of counsel, took the case under advisement, and afterwards, on April 17, 1886, and at the April term of the court, made the following findings: (1) That at the commencement of this action the said defendant, Robert Atkinson, did unlawfully withhold from said plaintiff, H. F. Sheldon, the possession of the following described tract of land to-wit: Commencing at a point 935 feet south and 400 feet west of the N. E. corner of N. E. of N. E. of section 2, township 17, range 19, Franklin county, Kansas, and running thence west to the Southern Kansas Railway; thence south 36 feet; thence east to a point 36 feet south of the place of beginning; thence north 36 feet to beginning. (2) That at the commencement of this action the said defendant did not unlawfully withhoid from said plaintiff the possession of the remainder of the tract of land in plaintiff's petition mentioned, to-wit: Commencing at a point 935 feet south of N. E. corner of N. E. 4 of N. E. of section 2, township 17,

range 19; running thence west 400 feet; thence south 36 feet; thence east 400 feet; thence north 36 feet. To the first finding Atkinson excepted, and to the second finding Sheldon excepted. Subsequently, Atkinson filed a motion for a new trial, and also Sheldon filed a motion for a new trial. Both motions were overruled, and on April 17, 1886, the court rendered the following judgment: "It is adjudged and decreed that the plaintiff, H. F. Sheldon, have and recover from said Robert Atkinson, defendant, the possession of the following described lands and tenements, to-wit: Commencing at a point 935 feet south and 400 feet west of N. E. corner of N. E. of N. E. of sec. 2, T. 17, R. 19; running thence west to Southern Kansas Railway; thence south 36 feet; thence east to a point 36 feet south of the place of beginning; thence north 36 feet to beginning,-together with his costs, taxed at $And it is further ordered and decreed by the court that the said Robert Atkinson, defendant, doth not unlawfully withhold from said H. F. Sheldon, plaintiff, the possession of the following described tract of land, to-wit: Commencing 935 feet south of N. E. corner of N. E. of N. E. of sec. two, (2,) Tp. 17, R. 19, Franklin county, Kansas; running thence west 400 feet; thence south 36 feet; thence east 400 feet; thence north 36 feet to beginning, as said plaintiff has in his petition alleged." Sheldon brings the case to this court.

W. H. Clark, for plaintiff in error. W. Littlefield and John W. Deford, for defendant in error.

HORTON, C. J. This was an action in the nature of ejectment, brought by H. F. Sheldon against Robert Atkinson, for the possession of a strip of land in Ottawa, 36 feet wide north and south, and about 600 feet long east and west. Both parties claim title from the same common source, one R. D. Lathrop. The several pieces of land in which it is claimed there is a surplus of 36 feet, owned by Atkinson, are marked upon the map in the record as "The Little Red Piece," "The Little Blue Piece," and "The Little White Piece." "The Little Red Piece" was purchased from Wilson and Burt, grantees of Lathrop, by Atkinsou in April, 1868; but the deed was not executed until the fall of 1868 or later. "The Little Blue Piece" was purchased by Atkinson from Lathrop, April 2, 1868. "The Little White Piece" was purchased from Sheldon by Atkinson, October 27, 1870. Sheldon alleges that a strip 36 feet wide off of the south end of these several pieces belongs to him, and that Atkinson keeps him unlawfully out of the possession of the same. Atkinson bases his claim to the strip of land in controversy-First, by 15 years' adverse possession; and, second, by a parol agreement between himself and the owner of the land adjoining his "Little Red Piece" and his "Little Blue Piece" on the south as to a corner and division line, which, he contends, has been acquiesced in and acted upon for such a long time as to be binding and conclusive. The trial was had before the court, without a jury. No request was made for a finding of the facts specifically. As the court made a general finding only; and as the finding of the court was favorable to Atkinson for the strip of land inclosed in the "Little Red" and the "Little Blue" pieces, we must assume that all the controverted facts as to this strip were found and established in favor of Atkinson, and against Sheldon. Knaggs v. Mastin, 9 Kan. 532.

Again, a general finding in favor of Atkinson for the strip of land in the "Little Red" and the "Little Blue" pieces, embraces all the facts necessary to constitute his claim thereto, if there was sufficient evidence in support of the same. Bixby v. Bailey, 11 Kan. 359; Hobson v. Ogden, 16 Kan. 388.

In view of the general finding of the trial court, it appears that, although Wilson and Burt did not execute any deed to "The Little Red Piece" to Atkinson until late in 1868, or early in 1869, his purchase, or his agreement to purchase, under which he took possession and claimed to be the owner thereof, goes back to April, 1868. Soon after the purchase by Atkinson of "The Little

Red Piece," he informed Jenness, the owner of the land adjoining on the south, of his purchase, and read him a letter concerning the same. About six weeks after this, Jenness went to Atkinson, and said he would like to fix the corner between them, as he wanted to build some fence. Atkinson got a colored man, and went with Jenness upon the ground to establish the corner of their pieces of land. A tape-line was used, and the measurement was commenced at a government corner stone on the Jenness property. The parties proceeded from that point north, and measured off 385 feet and placed a stake. Atkinson and the colored man carried the line, and Jenness did the marking. The stake was driven at the point established as the north-east corner of the Jenness land and the south-east corner of the Atkinson land. That fall, or the next spring, the owner of the Jenness land, either Jenness or his grantee, built a fence upon a line, commencing at the corner established by Jenness and Atkinson, running directly west to the west line of the land. In the spring of 1869, Atkinson had a hedge-row plowed on the line along the north side of the fence from the stake westward and around the tract composing "The Little Red and Blue Pieces." In the spring of 1870 he had the hedge-row replowed, and a hedge planted on the line so plowed, which has since been cultivated and grown, and still remains. At the time of planting this hedge, the stake driven by Atkinson and Jenness at the north-east corner of the Jenness land was noticed. The boundary line projected from the stake driven by Jenness and Atkinson at the corner of their lands, which was subsequently fenced and hedged, was regarded by the various proprietors of the adjoining pieces of land as the division line between them until a short time before the commencement of this action. During all this time Atkinson was an actual resident of this state, and was absent from the state less than nine months. This action was commenced on May 31, 1884, about 16 years after the stake had been driven to establish the corner or line between the Jenness and Atkinson lands.

Many of the courts hold that a parol agreement between two proprietors of adjoining lands to employ a surveyor to run the dividing line between them, which agreement is executed, and possession held accordingly, for a long period of time, but short of that prescribed by the statute of limitations, is binding and conclusive on the parties and those claiming under them. Finley v. Funk, 35 Kan. 668, 12 Pac. Rep. 15; Turner v. Baker, 64 Mo 218; Brown v. Edson, 23 Vt. 435; Boyd v. Graves, 4 Wheat. 513. The authorities that do not go to the extent of this rule, generally agree that if a division line is marked out and acquiesced in by joining proprietors for a period equal to the statute of limitations it is thereby conclusively established. Kip v. Norton, 12 Wend. 127, 27 Amer. Dec. 120, 27 Amer. Rep. 238. In a review of cases of the voluntary adjustment of boundaries between contiguous estates, Judge COOLEY says: "The parties have only by their agreement and contract determined the limits of their respective ownerships." REDFIELD, J., in Beecher v. Parmele, 9 Vt. 352, said: "If an entire lot be owned by different proprietors, who are in possession of separate parcels of the lot, and a divisional line is acquiesced in for fifteen years, it is thereby established. If no line of division be in fact drawn, but the parties acquiesced in an imaginary line of division, this is the same as if the line had been marked by visible monuments."

The claim is made, however, on the part of Sheldon, that the agreement between Jenness and Atkinson was merely as to the establishment of a corner, but nothing was said about any boundary, and that no line was fixed westward from the corner established. The fact that Jenness requested Atkinson to agree with him upon a corner between their lands, as he wanted to build a fence; the actual meeting of the parties, and the establishment of a corner by them; the driving of a hard-wood stake to identify and mark the corner; the construction of a fence in the fall of 1868, extending from where the corner was established, running directly west along the existing division

or boundary line; the plowing of a hedge-row in the spring of 1869 on this division line; the replowing and the planting of a hedge upon this line in the spring of 1870,-support the general finding of the district court that the corner and division line between the lines of Atkinson and Jenness were established by the parol agreement of these parties in the spring or early summer of 1868. All of the boundaries of the various pieces of land mentioned in the pleadings and testimony run north and south, and east and west. The purpose of fixing the corner between the lands of Atkinson and Jenness was to determine and mark the commencement of a boundary line extending from such corner directly west. Under these circumstances, the fixing of the corner necessarily established the boundary line as running due west therefrom. The corner was not marked or fixed for the purpose of establishing any boundary line running north and south. The place where Jenness wanted to build his fence was at or near the boundary line between his own land and that of Atkinson. As a period equal to the statute of limitations had expired between that time and the commencement of this action, deducting the nine months of absence of Atkinson from the state, we conclude that the corner and the division line then established and now existing must be regarded as the corner and division line between the land of Sheldon and "The Little Red and Blue Pieces" owned by Atkinson.

It is again urged that there was no dispute or contention between Atkinson and Jenness at the time of the establishment of the corner between their lands, and it is said that their agreement as to the corner, and the marking of the same with a stake, goes for naught, notwithstanding the long acquiescence in the corner and division line by all the parties interested. The evidence clearly shows that, prior to the time of the establishment of the corner by Atkinson and Jenness, the boundary line between their lands was not known, ascertained, or settled. It was not marked by stakes, monuments, or in any other way. The true line of division between their pieces of land was a subject of settlement between Atkinson and Jenness. They met together, and, after a measurement, expressly agreed upon a corner between their lands, and from that time to the commencement of this action a line runing west from the corner thus established by them was considered the true line of division between the pieces of land. The object of Atkinson and Jenness, in ascertaining and agreeing upon a corner, was to settle and fix a definite corner and boundary; and, therefore, it is not like the cases where the corners and boundary line are known and visibly marked, and the adjoining owners attempt for mutual convenience, or other sufficient reason, to transfer land from one to the other by parol agreement to merely change the location of a line. Vosburgh v. Teater, 32 N. Y. 568.

It is further claimed that, admitting there was a valid agreement between Atkinson and Jenness fixing the corner and boundary line between their lands more than 15 years ago, the agreement, although valid as between them, is not binding on Sheldon. The construction of the fence upon the boundary line west of the corner established by Atkinson and Jenness is evidence that, at that time, the parties understood where the corner and boundary line were established, and acted upon that knowledge. All persons purchasing after the establishment of the corner, and after Atkinson had taken actual possession of the premises in dispute, had notice of his title thereto. When Sheldon purchased, Atkinson had actual, open, visible, notorious, exclusive, and adverse possession of the strip now claimed by him. Gilmore v. Norton, 10 Kan. 491; Giles v. Ortman, 11 Kan. 59; Johnson v. Clark, 18 Kan. 164; School-Dist. v. Taylor, 19 Kan. 292; Tucker v. Vandermark, 21 Kan. 263. In the case of Winn v. Abeles, 35 Kan. 85, 10 Pac. Rep. 443, there was no agreement as to the actual corners or boundary line, and no hostile and adverse possession; therefore that case is not in conflict with this decision.

We have refered only incidentally to the strip of land on the south end of

"The Little White Piece," because, as we understand the judgment, that strip was recovered by Sheldon. Atkinson filed a motion for a new trial, which was overruled and properly excepted to, but he has not filed any petition in error, or any cross-petition in this court; and he is therefore in no condition to complain of the judgment, even if erroneously rendered.

The judgment of the district court will be affirmed.

JOHNSTON, J., concurring.

VALENTINE, J., (dissenting.) This was an action in the nature of ejectment, brought by H. F. Sheldon against Robert Atkinson, for the recovery of a strip of land in the city of Ottawa, 36 feet wide north and south, and 600 feet long east and west. The court below gave to Sheldon the west 200 feet of this strip, and to Atkinson the east 400 feet; and the only controversy in this court is with respect to this 400 feet.

It is admitted that the land in controversy belongs to Sheldon, unless it has been transfered to Atkinson by some statute of limitations, or by a gift from Sheldon, or from some one or more of the previous owners. It is not claimed that Atkinson ever purchased the property from any person, or that he ever paid anything for it, or that he has any deed for it, or that he has any claim to it by virtue of any written instrument. The supposed transfer of the property by virtue of some statute of limitations, or by a gift, is based upon the following facts: This action was commenced on May 31, 1884. During the 15 years preceding this date, Atkinson was absent from the state about nine months; hence, if any statute of limitations has transferred the title to the property from Sheldon, or from him and his grantors, to Atkinson, such statute must have commenced to run about the thirty-first of August, 1868. The supposed gift occurred in April or May, 1868. The facts upon which it is claimed that the statute of limitations was put in operation and the gift consummated are substantially as follows: In April, 1868, and prior thereto, Richard Jenness owned the land in controversy, together with other land adjoining. He owned, in all, a piece of land 400 feet wide east and west, and 421 feet long north and south, and the land in controversy is a strip off the north end of this land, 36 feet wide, and extending across the land from one side to the other. Wilson and Burt owned a piece of land 200 feet wide east and west, and 415 feet long north and south, immediately north of the east 200 feet of the land in controversy, and Richard D. Lathrop owned the remainder of the land immediately north of the land in controversy. In April, 1868, Atkinson purchased Lathrop's land. He then wrote a letter to Wilson and Burt to ascertain whether he could purchase theirs or not, and the terms. They answered by letter, stating that they would sell at a certain price, and Atkinson then wrote to them again, stating that he would take the land at that price. Immediately afterwards, and some time in April or May, 1868, Atkinson showed to Jenness Wilson and Burt's letter, when Jenness told Atkinson that he would like to fix the corner between them, and that he wanted to build some fence. Atkinson and Jenness then, with a tape-line, measured from the south-east corner of Jenness's land northwardly along the east side thereof where it fronts on Main street, 385 feet, and drove a stake. Jenness' land extended 36 feet further north, and to the land belonging to Wilson and Burt. The east end of the land in controversy lies between this stake and the Wilson and Burt land. Atkinson testified that they "measured off what I supposed, and what he supposed, was his frontage."

The land at that time was unoccupied prairie, not in the actual possession of any person, but construtively in the possession of Jenness, who held the legal title thereto, and it remained in that condition until after August 31, 1868, the time when the statute of limitations is supposed to have commenced to run in favor of Atkinson, and up to September 18, 1868, when Jenness and wife