Gray v. Berry

Upham, J. In this case, one Charles Fulker and the defendant owned lands adjoining each other, and the plaintiff, by permission of Fulker, cut wood near the line of these lots, which wood the defendant carried away, claiming that it was cut upon his land. It appeared that in 1822 the then owners of the land agreed upon a line which is known by the name of the Otis line, as the true boundary of their respective titles. By the line, as then established, the land where the wood now in controversy was cut would be the property of Fulker. Subsequently, in 1832, the then owners of the land caused a new survey to be made, and entered into a new agreement, establishing what is termed the McDaniel line as the true dividing line between them. By this line the land where the wood was cut would be the property of the defendant. The case, therefore, raises the question whether a parole agreement can be made by adjoining owners, defining the boundaries of their lands ? and, if such agreement has been once made, whether it can subsequently be revised, altered or modified by a new agreement of the owners ? There is some diversity of opinion in the decisions upon this subject. In Jackson vs. Dysling, 2 Cai. R. 198, it is held, that a parole agreement to abide by a certain division line, will so far affect the rights of the parties as to prevent either from [476] claiming in ejectment contrary to it, though it will not pass the lands. It is held, also, that the parties may waive the line thus agreed upon, or modify it by a subsequent parole agreement. It has been settled, in repeated cases in New-York, that long acquiescence by an owner of land, in an erroneous location, will authorize a jury to find that the party had agreed to a location different from that given by his deed ; and that whether the party knew his right or not, such location or acquiescence will conclude him, 13 Wend. 536, Dibble vs. Rogers & al. ; 17 Johns. 29, Jackson vs. Freer; 7 Cow. 723, Jackson vs. Widger ; 7 Cow.701, Rockwell vs. Adams ; and same case, in 6 Wend. 467; 10 Wend. 104, McCormick vs. Barnum. In the cases cited, acquiescence for only four or five years was held not to be sufficient evidence of an implied agreement to conclude a party, while seventeen or eighteen years’ possession was regarded as conclusive on this point. If an implied agreement will bind a party to any given line, an express agreement must necessarily have that effect ; and it was so holden in Kip vs. Norton, 12 Wend. 127. Chief Justice Savage remarks in that case, “ that the only question ' is, whether the party has so assented to the location as to be 1 bound by it, and that such assent may be either express or * implied. If there is a disputed line between two adjoining 1 proprietors of land, it may be settled between them by a lo- ‘ cation made by both,or made by one and acquiesced in by the ‘ other, for so long a time as to be evidence of an agreement ‘ to the line. There can be no doubt that an express parole ‘ agreement to settle a disputed or unsettled line, is valid if ‘ executed immediately, and possession accompanies and fol- ‘ lows such agreement. Not that the title to the land passes ‘ by the parole agreement, but the party making the agree- ‘ ment is not permitted to bring an action in violation of it. ( The agreement does not pass the title, but fixes the location ( where the estate of each is supposed to exist. So, also, [477] ( where there has been no express agreement, long aequies- ‘ cence by one in the line assumed by the other, is evidence ‘ of an agreement.” In Sawyer vs. Fellows, 6 N. H. R. 107, it is settled that a parole agreement between owners of adjoining land, that a surveyor shall ran the line between them, and that the line shall be thus ascertained and settled, is, when executed, conclusive against them and all persons claiming under them. In 1 Binney 215, Ebert vs. Wood, it is holden that a line so established, if followed by actual possession, is good. On the other hand, it is held in Massachusetts and Maine, that a line established by agreement of parties is not conclusive so as to preclude the owner from showing that his land extends beyond such line. 15 Mass. 153, Whitney vs. Holmes ; 4 Green. 327, Gove vs. Richardson. In the latter case it is said, however, that such location will be received as strong evidence of the accuracy of the line thus established. But it is settled, in each of those states, that if a deed of land refer to a monument as then existing, which has not been erected, and the parties afterwards by agreement erect such monument with the express view of conforming to the deed, such monument will govern as to the extent of the land, though not entirely coinciding with the deed. 12 Mass. 469, Makepeace vs. Bancroft; 1 Green. 219, Prop. Kennebec Parchase vs. Tiffany. Such are the principal authorities upon this subject: and we think the better opinion is, that an agreement made by adjoining owners, to settle a disputed line, is valid if duly executed at the time by the parties. This agreement, as has been remarked, passes no interest in lands—it merely defines the extent of the respective titles as conveyed by deed. While the agreement subsists, however, it is conclusive evidence as to such boundaries. Still, it is a mere agreement by parole, and the parties may afterwards rescind, alter, or modify it, at their election. It is said that the operation of such an agreement is to [478] render certain what was before uncertain, and that when ren-(Jered certain, that is an end of the right of parties to act by parole. This is true while such agreement continues; but the same power that made it, can rescind it, and enter into a new agreement. Each agreement is a mere parole contract in relation to a deed, and the last agreement must govern. By the last contract made in this case, the line as established leaves the land where the wood was cut as the property of the defendant; and there must, therefore, be Judgment for the defendant.