The plaintiff and defendant were tenants in common of a tract of land. They had jointly occupied it until they respectively married, and then the defendant built a house on the east side or portion of the tract and the plaintiff built a house on the west side of the said tract, where each of the parties settled with their families. They afterwards required a surveyor by the name of Dobson to run a dividing line between them. Dobson did run a straight dividing line across from north to south. But both parties then disagreed to (175) that line. The plaintiff and the defendant then agreed to erect and keep in repair the fences which now divide and separate their respective fields and farms. Their fences or agreed lines extend across the creek and bottoms or lowlands of the said creek up to the hill lands on either side of the creek, as designated by the red lines on the surveyor's (Mr. Suddith's) plat. These red lines intersect the Dobson line on the north side of the creek at letter M and on the south side of the creek at the figure 5; from these two points to the outside lines of the tract, at E and F. The defendant insists that the Dobson line was agreed between them to be the dividing line and that they each had held and claimed up to it and no further for the last thirty years; that all the privileges taken by either of the parties beyond that line were by license obtained from the respective owners on each side of the said line. The plaintiff put in a replication to the answer. The depositions of many witnesses have been taken, and after examining them we are compelled to say that they do not prove that there was ever an agreed line between the parties (Dobson's or any other) from the termination of the red lines to the outside lines of the original tract at E and F, or to any other points in the outside lines. Partition by them of the original tract of land held in common has never been made, as appears to us. The evidence that the plaintiff asked leave of the defendant to set a machine house on the land at M and lying a little north of the termination of the red line in that direction is too weak a circumstance for us to establish the Dobson line as an agreed line from the terminations of the red lines to the outer boundary lines of the whole tract of land. Indeed, the defendant in his answer does not aver that the parties ever agreed upon a division which should extend entirely across the tract. We are of the opinion, therefore, that the plaintiff is entitled to a decree for partition so far as the same has not yet been completed, as prayed for in his bill.
PER CURIAM. Decree accordingly. *Page 130
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