259. Express agreement as to boundary.

There are, in this country, a great number of decisions bearing upon the effect of an agreement by adjoining owners as to the boundary line between their lands, or of their recognition of a certain line as the boundary without any express agreement in relation thereto. These decisions are frequently most unsatisfactory in their discussion of the principles involved, and, purporting, as they variously do, to be based on principles of agreement, "acquiescence," "practical location," estoppel, or the statute of limitations, it is impossible to deduce from them any generally accepted rules upon the subject.

An agreement between adjoining owners as to the location of a boundary line, though merely oral, is not, it is generally conceded, invalid as being within the Statute of Frauds, provided the agreement is followed by actual or constructive possession by each of the owners up to the line so agreed upon, and provided, further, that the proper location of the line is uncertain or in dispute; the theory being that the agreement does not, in such case, involve any transfer of title to land, but merely an application of the language of the instruments under which the owners claim.282 On the other hand, it is

106 Пl. 492; Amos v. Parker, 88 Ga. 754; Johnson v. Norton, 8 B. Mon. (Ky.) 429; Porter v. Durham, 90 N. C. 55.

282 Watrous v. Morrison, 33 Fla. 261, 39 Am. St. Rep. 139; White v. Spreckels, 75 Cal. 610; Fisher v. Bennehoff, 121 III. 426; Berghoefer v. Frazier, 150 Ill. 577; Turner v. Baker, 64 Mo. 218, 27 Am. Rep. 226; Brummell v. Harris, 148 Mo. 430; Archer v. Helm, 69 Miss. 730; Tritt v. Hoover, 116 Mich. 4; Glen Mfg. Co. v. Weston Lumber Co., 80 Fed. 242; O'Donnell v. Penney, 17 R. I. 164; Lindsay v. Springer, 4 Har. (Del.) 547; Coleman v. Smith, 55 Tex. 254; Gwynn v. Schwartz, 32 W. Va. 487; Harrell v. Houston, 66 Tex. 278; Clark v. Hulsey, 54 Ga 608; Pittsburgh & L. A. Iron Co. v. Lake Superior Iron Co., 118 Mich. 109; Young v. Woolett, 16 Ky. Law Rep. 767, 29 S. W. 879; Helm v. Wilson, 76 Cal. 476; Tritt v. Hoover, 116 Mich. 4; Idaho Land Co. v. Parsons, 2 Idaho, 1191; St. Bede College v. Weber, 168 Ill. 324.

held that, if the boundary line is not doubtful or in dispute, an oral agreement for its change is invalid, this involving an actual transfer of land, within the statute.288 Why the agreement, to be effective as locating the line, must be followed by possession in accordance therewith, in order to be outside of the scope of the statute, does not appear from the decisions, and, according to some cases, it would seem that the oral agreement would be sufficient without such subsequent possession.284

An agreement thus effectual, as between the parties thereto, also concludes their successors in title.285

By a few cases, however, an agreement as to the line, based on a mistake by one of the parties as to the proper location of the line, is not regarded as binding on him; and such an agreement, even if followed by possession in accordance therewith, is merely evidence upon the question of the true line.280

260. Implied agreement or acquiescence.

Though there be no express agreement as to the location

883 Olin v. Henderson, 120 Mich. 149; Watrous v. Morrison, 33 Fla. 261, 39 Am. St. Rep. 139; Gayheart v. Cornett, 19 Ky. Law Rep. 1052, 42 S. W. 730; De Long v. Baldwin, 111 Mich. 466; Vosburgh v. Teator, 32 N. Y. 561; Lennox v. Hendricks, 11 Or. 33; Hartung v. Witte, 59 Wis. 285; Nichol v. Lytle's Lessee, 4 Yerg. (Tenn.) 456, 26 Am. Dec. 240.

284 Galbraith v. Lunsford, 87 Tenn. 89; Hitchcock v. Libby (N. H.) 47 Atl. 269; Terry v. Chandler, 16 N. Y. 354, 69 Am. Dec. 707; Boyd's Lessee v. Graves, 4 Wheat. (U. S.) 513; Bobo v. Richmond, 25 Ohio St. 115; Hagey v. Detweiler, 35 Pa. St. 409; Lecomte v. Toudouze, 82 Tex. 208, 27 Am. St. Rep. 870.

285 Orr v. Foote, 10 B. Mon. (Ky.) 387; Bartlett v. Young, 63 N. H. 265; Hagey v. Detweiler, 35 Pa. St. 409; Trussell v. Lewis, 13 Neb. 415, 42 Am. Rep. 767; Leonard v. Quinlan, 121 Mass. 579; Smith v. McCorkle, 105 Mo. 135.

286 Liverpool Wharf v. Prescott, 7 Allen (Mass.) 494; Tolman v. Sparhawk, 5 Metc. (Mass.) 465; Gove v. Richardson, 4 Me. 327; Schraeder Min. & Mfg. Co. v. Packer 129 U S. 688. See Coon v. Smith, 29 N. Y. 392; Pickett v. Nelson, 71 Wis. 542, 79 Wis. 9.

of the boundary line, it has been frequently decided that adjoining proprietors cannot question a line which they have, for a considerable number of years, recognized as the correct line between their properties. Some of the cases base this doctrine upon the theory that such recognition of or "acquiescence" in a certain line is evidence of an agreement, 287 while others seem rather to regard it as an independent rule of law, dictated by general considerations of justice and expediency, in order that uncertainty and disturbance of boundaries be avoided.288 In a few states, however, such acquiescence in or recognition of a line is merely evidence in regard thereto, and may be contradicted.289

Some of the cases require this acquiescence, in order to be thus conclusive, to have continued for the length of time fixed by the statute of limitations for the recovery of land, not, apparently, on the view that the case is within that statute, but by way of analogy thereto.200 Others suggest no such requirement, it being stated merely that the acquiescence in the line must have continued for "a considerable time," or equivalent language being used, and no rule as to the number of years being laid down.291 The erection and continued ex

287 Clayton v. Feig, 179 Ill. 534; O'Donnell v. Penney, 17 R. I. 164; Galbraith v. Lunsford, 87 Tenn. 89; Jacobs v. Moseley, 91 Mo. 457; Ernsting v. Gleason, 137 Mo. 594; Dibble v. Rogers, 13 Wend. (N. Y.) 536; Pickett v. Nelson, 71 Wis. 542, 79 Wis. 9; Gwynn v. Schwartz, 32 W. Va. 487.

288 Sherman v. Kane, 86 N. Y. 57; Baldwin v. Brown, 16 N. Y. 359; O'Donnell v. Penney, 17 R. I. 164; Miller v. Mills County, 111 Iowa, 654.

289 Bohny v. Petty, 81 Tex. 524; Whitcomb v. Dutton, 89 Me. 212; Hathaway v. Evans, 108 Mass. 267.

290 Miller v. Mills County, 111 Iowa, 654; O'Donnell v. Penney, 17 R. I. 164; Sneed v. Osborn, 25 Cal. 619; Gwynn v. Schwartz, 32 W. Va. 487; Lowndes v. Wicks, 69 Conn. 15. See Richardson v. Chickering, 41 N. H. 380; Mullaney v. Duffy, 145 Ill. 559.

201 Husted v. Willoughby, 117 Mich. 56; Palmer v. Dosch, 148 Ind 10; Welton v. Poynter, 96 Wis. 346; Katz v. Kaiser, 154 N. Y. 294; Wollman v. Ruehle, 100 Wis. 31; Whitcomb v. Dutton, 89 Me. 212;

istence of a fence has been regarded as an acquiescence in the fence as marking the boundary, provided the fence is recognized as a partition fence, and not as an erection for mere purposes of convenience. 292

It is sometimes said that the "practical location" of a boundary line is conclusive. This expression, as between the parties to a conveyance, means merely its practical construction by them by a location of the boundaries;293 but when used in reference to a line between adjoining owners, not parties to a conveyance, it seems to have the same meaning as the term "acquiescence," explained above.29+

261. Estoppel to question boundary.

The principle of estoppel in pais is sometimes applied so as to prevent one who has recognized a certain line as the boundary between his own and other land from thereafter asserting that this is not the correct line, especially when improvements have been made by the other proprietor with reference to such line.295 And the same result follows misrepresentations as to the boundary line made to an intending purchaser of land by the owner of the adjoining land.296 Lowndes v. Wicks, 69 Conn. 15; Coleman v. Smith, 55 Tex. 254; Haring v. Van Houten, 22 N. J. Law, 61; Smith v. Hamilton, 20 Mich. 433, 4 Am. Rep. 398; Brummell v. Harris, 148 Mo. 430; Robards v. Rogers, 20 Ky. Law Rep. 1017, 48 S. W. 154; Sherman v. Kane, 86 N. Y. 57; Culbertson v. Duncan (Pa.) 13 Atl. 996.

292 Darst v. Enlow, 116 Ill. 475; Jones v. Smith, 64 N. Y. 180; Columbet v. Pacheco, 48 Cal. 395; Burris v. Fitch, 76 Cal. 395. But see West v. St. Louis, K. C. & N. Ry. Co., 59 Mo. 510; Hockmuth v. Des Grands Champs, 71 Mich. 520.

293 See post, § 390.

294 See Jones v. Smith, 64 N. Y. 180; Corning v. Troy Iron & Nail Factory, 44 N. Y. 577; Beardsley v. Crane, 52 Minn. 537.

295 Major's Heirs v. Rice, 57 Mo. 384; Joyce v. Williams, 26 Mich. 332; Sumner v. Seaton, 47 N. J. Eq. 103; Trustees of Town of Brook. haven v. Smith, 118 N. Y. 634; Galbraith v. Lunsford, 87 Tenn. 89; Ross v. Ferree, 95 Iowa, 604.

290 Pitcher v. Dove, 99 Ind. 175; Merriwether v. Larmon, 3 Sneed

In the cases previously referred to, the fact that the person estopped was ignorant of or mistaken as to the true line at the time of assenting to the correctness of another line seems to have been regarded as not affecting the estoppel; but, by other cases, knowledge that the line indicated or assented to was incorrect is regarded as essential, 297-a view which is apparently more in consonance with the principles underlying the law of estoppel.

VIII. FENCES.

At common law one must fence his land to prevent his cattle from trespassing on others' land, but not to prevent trespasses by others' cattle on his land. This rule prevails in some states in this country, and in others a contrary rule prevails. Railroads are subject to the same rules as private owners in this respect, except in jurisdictions where the statute requires railroads to be fenced.

$262. The duty to fence.

At common law, an owner of land is under no obligation to fence his land, in order to keep the cattle of others from straying thereon, but there is an absolute obligation upon the owner of cattle to restrain them, by fences or other means,

(Tenn.) 447; Spiller v. Scribner, 36 Vt. 245; Richardson v. Chickering, 41 N. H. 380; Chadwell v. Chadwell, 93 Tenn. 201; Swayze's Ex'r v. Carter, 41 N. J. Eq. 231; Weisbrod v. Chicago & N. Ry. Co., 18 Wis. 40, 86 Am. Dec. 743; Hefner v. Downing, 57 Tex. 576; Timon V. Whitehead, 58 Tex. 290.

297 Cheeney v. Nebraska & C. Stone Co., 41 Fed. 740; Liverpool Wharf v. Prescott, 7 Allen (Mass.) 494; Combs v. Cooper, 5 Minn. 254 (Gil. 200); Parker v. Brown, 15 N. H. 176; Titus v. Morse, 40 Me. 348, 63 Am. Dec. 665; Stanwood v. McLellan, 48 Me. 275; Maye v. Yappen, 23 Cal. 306; Brewer v. Boston & B. R. Corp., 5 Metc. (Mass) 478, 39 Am. Dec. 694; Lovelace v. Carpenter, 115 N. C. 424; Mullaney v. Duffy, 145 Ill. 559; Proctor v. Putnam Mach. Co., 137 Mass. 159; Liverpool Wharf v. Prescott, 7 Allen (Mass.) 494; Crorin V. Gore, 38 Mich. 381.