should be submitted; if not, it should be withheld from the jury: Hyatt v. Johnston, 91 Pa. 196; Patterson v. Dushane, 115 Pa. 334; Cover v. Manaway, 115 Pa. 338.

As the case was given to the jury with binding instructions to find for the plaintiff, the defendant is entitled to have the testimony he relies upon accepted as true, together with all reasonable inferences therefrom. Referring to the testimony, we are of opinion the case should have been submitted to the jury. We will not recite the testimony, or discuss it, in detail; as the case is to be re-tried, it is better that we should not. A reference in detail to the testimony, to exhibit the ground of this opinion, might be taken at the re-trial, if read in the presence or hearing of the jury, as an expression of our views on the questions of fact involved, and might have a misleading effect. The view we have taken, as to the measure of proof required, will readily suggest the propriety of a submission of these questions to the jury.

The judgment is reversed, and a venire facias de novo awarded.1

JOSEPH CAVANAUGH, RESPONDENT, v. SAMUEL JACKSON, APPELLANT.

CALIFORNIA SUPREME COURT, OCTOBER, 1891.

[Reported in 91 California, 580.]

PATERSON, J. The record shows that in December, 1880, and long prior thereto, the plaintiff was in possession of the Coats place, which he now owns, and the defendant, Jackson, was in possession of an adjoining ranch, known as the Beaughan place. A dispute having arisen as to the boundary line between the two ranches, a surveyor

1 Long v. Dollarhide, 24 Cal. 218; Tuffree v. Polhemus, 108 Cal. 670, 677; Tomlin v. Hilyard, 43 Ill. 300; Grimes v. Butts, 65 Ill. 347; Shepard v. Rinks, 78 Ill. 188; Gage v. Bissell, 119 Ill. 298; Lacy v. Gard, 60 Ill. App. 72; Foltz v. Wert, 103 Ind. 404; Moore v. Kerr, 46 Ind. 468; Bruce v. Osgood, 113 Ind. 360; Tate v. Foshee, 117 Ind. 322; Higginson v. Schaneback (Ky.), 66 S. W. Rep. 1040; Johnston v. Labat, 26 La. Ann. 159; Wildey v. Bonneys, 31 Miss. 644; Pipes v. Buckner, 51 Miss. 848; Bompart v. Roderman, 24 Mo. 385; Jackson v. Harder, 4 Johns. 202; Wood v. Fleet, 36 N. Y. 499; Piatt v. Hubbell, 5 Ohio, 243; Wolf v. Wolf, 158 Pa. 281; Rountree v. Lane, 32 S. C. 160; Meacham v. Meacham, 91 Tenn. 532; Stuart v. Baker, 17 Tex. 417; Smock v. Tandy, 28 Tex. 130; Mitchell v. Allen, 69 Tex. 70; Aycock v. Kimbrough, 71 Tex. 330; Mass v. Bromberg (Tex. Civ. App.), 66 S. W. Rep. 468; Whitemore v. Cope, 11 Utah, 344; Brazee v. Schofield, 2 Wash. Ty. 209, acc. See also Berry v. Seawall, 65 Fed. Rep. 742 (C. C. A.).

Johnson v. Wilson, Willes, 248; Ireland v. Rittle, 1 Atk. 541; Whaley v. Dawson, 2 Sch. & L. 367; Bach v. Ballard, 13 La. Ann. 487; Duncan v. Sylvester, 16 Me. 388 Chenery v. Dole, 39 Me. 162; John v. Sabattis, 69 Me. 473; Porter v. Perkins, 5 Mass. 233; Porter v. Hill, 9 Mass. 34; Ballou v. Hale, 47 N. H. 347; Woodhull v. Longstreet, 3 Har. 405; Lloyd v. Conover, 1 Dutch. 47; Medlin v. Steele, 75 N. C. 154; Jones v. Reeves, 6 Rich. L. 132, contra. See also Duncan v. Duncan, 93 Ky. 37.

...

was employed by plaintiff and defendant to make a survey and establish the true line. Such survey was made in December, 1880. The plaintiff testified as follows: "Jackson had this land fenced up for a long time prior to the first day of September, 1886, maybe four or five years before that date, along with other lands of his. . . . Jackson and I established a line of fence between the Coats place, which I now own, and the Beaughan place, now owned by Jackson; we had the land surveyed from the center of section 28, west to the road. We established the line on the quarter-section line, and when we established the line, Jackson moved his fence out to the road, and enclosed this strip in controversy; that strip is narrower at the west end than at the the east end. I bought the Coats place from Mr. Orr, but the deed did not include this strip, and Mr. Warren discovered that I had no deed, and that I must have a deed. I have exercised no acts of ownership over this strip of land. . . . I had A. M. Jones survey this tract in about 1872. That strip is one hundred yards wider at the east end than at the west end. Dan Sullivan assisted Davidson in making the last survey. Jackson and I put up our fences on the line as determined by Mr. Davidson. I did not object to Mr. Jackson putting up fence on line from centre of section 28, west to the road, and enclosing this tract in dispute; he fenced it right after the survey made by Mr. Davidson. That line never was enclosed, except a small portion thereof enclosed by appellant, until Mr. Jackson fenced it after the Davidson survey. We built the fences on the lines agreed on. We ran one line west from centre of section 28 to the road, and on this line Mr. Jackson was to build his fence, and I was to build as much on the north and south line as he was to build on the east and west line, we were to, and did, build equal portions of said fence. Jackson moved out his fence, and enclosed this strip of land. I never asked Mr. Jackson for the land, nor to be let into possession of it." The defendant testified that he had occupied and used the land exclusively since 1880, and paid taxes on it ever since 1878, when he paid his proportion for the Whitmire patent for the northwest quarter of section 28; that he took all the wood he needed off the land in controversy since the establishment of the boundary line, and had prohibited others from cutting wood there for eight or ten years past. The assessment rolls offered in evidence showed that the land in controversy had been assessed to defendant every year from 1878 to 1887, and that defendant had regularly paid said taxes. The defendant testified that in 1872 a survey was made by one Jones on behalf of Mr. Wholey, Mr. Cavanaugh, and himself, the object being to determine how much Mr. Wholey and defendant were each to pay for the patent for the land granted by the state to Whitmire.

In rebuttal, the plaintiff proved by the records of the assessor and tax collector that he had had the lands in controversy assessed to him for the years 1885 and 1887, and had paid the tax for the year 1885. We think that on this evidence the defendant was entitled to judg

ment. The parties entered into an express agreement fixing the dividing line between their lands; fences were built upon the line so established, and the parties have ever since acquiesced therein.

It is well settled that where the owners of contiguous lots by parol agreement mutually establish a dividing line, and thereafter use and occupy their respective tracts according to it for any period of time, such agreement is not within the Statute of Frauds, and it cannot afterwards be controverted by the parties or their successors in interest. White v. Spreckels, 75 Cal. 610; Helm v. Wilson, 76 Cal. 485; Blair v. Smith, 16 Mo. 273; Orr v. Hadley, 36 N. H. 575; Laverty v. Moore, 32 Barb. 347; Houston v. Sneed, 15 Tex. 307.1 It is the policy of the law to give stability to such an agreement, because it is the most satisfactory way of determining the true boundary, and tends to prevent litigation. Houston v. Matthews, 1 Yerg. 118; Fisher v. Bennehoff, 121 Ill. 435.

It is claimed by respondent, that, as the payment was made several years prior to the time when he received his deed from Coats for the land in controversy, it is not binding upon him; but the evidence shows that the plaintiff was in possession of the Coats place, and claiming to be the owner up to the line established. The evident meaning of his testimony is, that he had paid for the land, but had failed to secure the legal title thereto. It has been held that such an agreement, made by an occupant of public land, was binding upon him after he acquired legal title from the government. Jordan v. Deaton, 23 Ark. 704. See also Orr v. Hadley, 36 N. H. 575; Silvarer v. Hansen, 77 Cal. 586.

In many states it is held that in the absence of any express agreement, where the boundary line has been recognized, and parties have used and occupied according to it for a considerable period, although less than the period which would be a bar under the statute of limitations, they, and all claiming under them, will be estopped from afterwards claiming a different boundary. Blair v. Smith, 16 Mo. 273; Smith v. Hamilton, 20 Mich. 438; 4 Am. Rep. 398.

The agreement establishing a dividing line between the plaintiff and the defendant was made in 1881. Coats conveyed to Cavanaugh, April 30, 1884. From the time the agreement was made until the

1 Jenkins v. Trager, 40 Fed. Rep. 726; Watrous v. Morrison, 33 Fla. 261; Carstarphen v. Holt, 96 Ga. 703; Grim v. Murphy, 110 Ill. 271; Duggan v. Uppendahl, 197 Ill. 179; Tate v. Foshee, 117 Ind. 322; Jamison v. Petit, 6 Bush, 669; Jones v. Pashby, 67 Mich. 459; Pittsburgh Iron Co. v. Lake Superior Iron Co., 118 Mich. 109; Archer v. Helm, 69 Miss. 730; Blair v. Smith, 16 Mo. 273; Turner v. Baker, 8 Mo. App. 583, 64 Mo. 218; Atchison v. Pease, 96 Mo. 566; Barnes v. Allison, 166 Mo. 96; Bartlett v. Young, 63 N. H. 265; Hitchcock v. Libby, 70 N. H. 399; Vosburgh v. Teator, 32 N. Y. 561; Bobo v. Richmond, 25 Ohio St. 115; Hagey v. Detweiler, 35 Pa. 409; Cooper v. Austin, 58 Tex. 494; Harn v. Smith, 79 Tex. 310; Levy v. Maddox, 81 Tex. 210; Lecomte v. Toudouze, 82 Tex. 208; Gwynn v. Schwartz, 32 W. Va. 487; Teass v. St. Albans, 38 W. Va. 1, acc.; Liverpool Wharf v. Prescott, 4 Allen, 22, 7 Allen, 494, contra.

commencement of this action, on April 15, 1887, plaintiff never exercised any acts of ownership over the land in controversy. This longcontinued acquiescence by the plaintiff in the line previously established, we think, is a ratification of the agreement made in 1881.

Judgment and order reversed, and cause remanded for a new trial. HARRISON, J., and GAROUTTE, J., concurred.1

D. AGREEMENTS NOT TO BE PERFORMED WITHIN A Year.

PETER v. COMPTON.

IN THE KING'S BENCH, TRINITY TERM, 1693.

[Reported in Skinner, 353.]

THE question upon a trial before HOLT, Chief Justice, at nisi prius, in an action upon the case upon an agreement, in which the defendant promised for one guinea to give the plaintiff so many at the day of his marriage, was if such agreement ought to be in writing, for the marriage did not happen within a year. The Chief Justice advised with all the judges, and by the great opinion (for there was diversity of opinion, and his own was e contra), where the agreement is to be performed upon a contingent, and it does not appear within the agreement that it is to be performed after the year, there a note in writing is not necessary, for the contingent might happen within the year; but where it appears by the whole tenor of the agreement that it is to be performed after the year, there a note is necessary, otherwise not.

the

1 "In the brief of respondent's attorney it is admitted, 'there was no dispute or uncertainty as to where the true line was. All parties knew where it was, but they deliberately disregarded the true line, and made one to suit themselves.' The defendant does not rely upon adverse possession or the Statute of Limitations, but upon establishment of a boundary line by parol. This, however, is not such a case, but an attempt to convey by parol, and without consideration, a strip of land belonging to one of the tracts abutting upon a well-recognized boundary line. This is squarely in the teeth of the Statute of Frauds. Civ. Code, sec. 1091. In support of his position in reference to establishing a boundary line by parol, respondent cites and relies upon Cavanaugh v. Jackson, 91 Cal. 580. In that case, however, as stated by the court, 'a dispute having arisen as to the boundary line between the two ranches, a surveyor was employed by plaintiff and defendant to make a survey and establish a true line. The line in that case was established in 1881, and the defendant occupied and used it exclusively up to the commencement of his action, which was in April, 1887, and the plaintiff never exercised any acts of ownership over it during that period.' And the court say, 'This long-continued acquiescence in the line previously established, we think, is a ratification of the agreement made in 1881.'" Nathan v. Dierssen, 134 Cal. 282, 284.

Boyd v. Graves, 4 Wheat. 513; Sharp v. Blankenship, 67 Cal. 441; Miller v. McGlaun, 63 Ga. 435; Vosburgh v. Teator, 32 N. Y. 561; Harris v. Oakley, 130 N. Y. 1, 5; Ambler v. Cox, 13 Hun, 295; Leunox v. Hendricks, 11 Oreg. 33; Nichol v. Lytle, 4 Yerg. 456; Gilchrist v. McGee, 9 Terg. 455; Lewallen v. Overton, 9 Humph. 76; Hartung v. Witte. 59 Wis. 285, acc.

WARNER v. TEXAS AND PACIFIC RAILWAY COMPANY. UNITED STATES SUPREME COURT, MAY 5-NOVEMBER 30, 1896.

[Reported in 164 United States, 418.]

THIS was an action brought May 9, 1892, by Warner against the Texas and Pacific Railway Company, a corporation created by the laws of the United States, upon a contract made in 1874, by which it was agreed between the parties that if the plaintiff would grade the ground for a switch, and put on the ties, at a certain point on the defendant's railroad, the defendant would put down the rails and maintain the switch for the plaintiff's benefit for shipping purposes as long as he needed it. The defendant pleaded that the contract was oral, and within the statute of frauds, because it was 66 not to be performed within one year from the making thereof," and because it was a grant or conveyance by this defendant of an estate of inheritance, and for a term of more than one year, in lands."

66

At the trial, the plaintiff, being called as witness in his own behalf, testified that prior to the year 1874 he had been engaged in the lumbering and milling business in Iowa and in Arkansas, and in contemplation of breaking up and consolidating his business, came to Texas, and selecting a point, afterwards known as Warner's Switch, as a suitable location, providing he could obtain transportation facilities; that he found at that point an abundance of fine pine timber, and three miles back from the railroad, a stream, known as Big Sandy Creek, peculiarly adapted to floating logs, and lined for many miles above with pine. timber; that in 1874 the defendant's agent, after conversing with him about his experience in the lumber business, the capacity of his mill, and the amount of lumber accessible from the proposed location, made an oral contract with him by which it was agreed that if he would furnish the ties and grade the ground for the switch, the defendant would put down the iron rails and maintain the switch for the plaintiff's benefit for shipping purposes as long as he needed it; that the plaintiff immediately graded the ground for the switch, and got out and put down the ties, and the defendant put down the iron rails and established the switch; and that the plaintiff, on the faith of the continuance of transportation facilities at the switch, put up a large saw-mill, bought many thousand acres of land and timber rights and water privileges of Big Sandy Creek, made a tram road three miles long from the switch to the creek, and otherwise expended large sums of money, and sawed and shipped large quantities of lumber, until the defendant, on May 19, 1887, while its road was operated by receivers, tore up the switch and ties, and destroyed his transportation facilities, leaving his lands and other property without any connection with the railroad. His testimony also tended to prove that he had thereby been injured to the amount of more than $50,000, for which the defendant