There is a great deal of evidence in the record that is of no consequence in determining whether the fence which constituted the visible boundary line between the lands of these parties became, by reason of the lapse of ten years or more, the true boundary line. On the undisputed evidence as to the original location of this fence and the length of time it was maintained by the parties as thus located, the vital question on appeal here, it *Page 429 seems to me, is purely one of law. What may have been the understanding between complainant Rocco Ungaro and respondent's immediate predecessor in title at the time they built the fence is of no importance if, in fact, the fence remained undisturbed in its original location and was acquiesced in for a period of ten years or more as the occupation line between the lands of the parties.
Complainants do not deny the fact that the fence was located for such period and was respected, by themselves and the respondent and her predecessor in title, as the division line between their lots until it was torn down by complainants' son Daniel Ungaro sometime in May 1941. However, complainants seek to avoid the legal effect of such fact by offering the testimony of complainant Rocco Ungaro that he had an oral understanding with respondent's immediate predecessor in title, at the time the fence was first erected, that it was to be a temporary division fence until they could determine the true division line. Because I am of the opinion that complainants cannot, under our law, set up such an oral agreement to defeat the legal effect of a division fence which has stood undisturbed for ten years, I am constrained to dissent from the opinion of the majority.
The law is well settled in this state that acquiescence in a boundary line, assumed or established for a period equal to that prescribed in the statute of limitations to bar an entry, will preclude the parties from setting up the claim that the line so acquiesced in is not the true boundary. O'Donnell v. Penney,17 R.I. 164. In its opinion in that case this court quoted with approval from Baldwin v. Brown, 16 N.Y. 359, 363, wherein it was said: "The acquiescence in such cases affords ground not merely for an inference of fact, to go to the jury as evidence of an original parol agreement, but for a direct legal inference as to the true boundary line. It is held to be proof of so conclusive a nature that the party is precluded from offering any evidence to the contrary."
The law as thus laid down over half a century ago has been followed without question. Faulkner v. Rocket. *Page 430 33 R.I. 152; Doyle v. Ralph, 49 R.I. 155; Di Maio v.Ranaldi, 49 R.I. 204; Di Santo v. De Bellis, 55 R.I. 433;Mari v. Lankowicz, 61 R.I. 296. In the last-cited case the decision turned on a disputed question of fact as to whether a fence had actually stood on the line in question for the prescribed period of time. Had the complainant in that case established such fact, we recognized that he would have been entitled to prevail. We found, however, that he had failed to prove that fact and therefore the rule of the O'Donnell case did not apply.
In the instant case the existence of the fence on the occupation line for the required period is unquestioned. By their conduct the complainants have clearly acquiesced in this line as the true boundary line. Not only did they fail to do any act to disturb that line or question it, but they actively cooperated with respondent in maintaining it. Under such circumstances the rule enunciated in the O'Donnell case is peculiarly applicable. Having acquiesced in the location of the fence for so long a period, complainants ought not to be permitted to negative the effect of such conduct by testimony of an oral agreement with the immediate predecessor in title of the respondent. To permit such evidence to be considered would, it seems to me, defeat the rule of the O'Donnell case and greatly weaken its salutary influence "as a rule of repose" in quieting titles, where an actual boundary line has been so long established.