Concurring.
I concur in a reversal of the judgment of the lower court. In doing so, however, I have thought it best to make some observations as to my reasons therefor, in view of the position taken by my associate in his opinion herein. I do not think the right of the plaintiff depends upon his invoking the doctrine of estoppel against his adversary; neither can I concur in that broad, and, as it seems to me, too dangerously liberal doctrine of estoppel announced by my associate. In order that a man be estopped from thereafter urging in a court of justice the true facts in his case, it must be made to appear that he has either spoken to or acted toward his adversary in such an unconscionable or deceptive manner as to render it inequitable and unjust to allow him thereafter to tell the real truth in his case and assert what would otherwise be his true rights. I know of no instance in which a man who has acted honestly, fairly and truthfully toward his adversary can or should be precluded from thereafter asserting his rights based upon the facts in his case, irrespective of the loss it may entail upon his adversary.
The ease at bar differs from the ordinary case in this country where lands have been located upon or purchased and title taken in accordance with the government surveys. In all such cases the grantee takes his title with notice and the understanding that his boundaries are wherever the government surveys are established. In this case, however, the parties, while receiving their grant from the general *243government, were in fact dealing with the land and water company, which was in effect the representative of the state. This land was purchased after the parties had been taken upon it and shown the boundary lines established and marked by monuments, and if the allegations of the complaint are to be believed, as they must be for the purposes of this case, this land was purchased by specific tracts clearly and plainly marked upon the surface, rather than with reference to the government boundaries and subdivisions. In other words, when the parties went upon the ground, they found it marked off and staked, and it was represented to them that the stakes set and marks found upon the surface coincided with the government lines, and that a description given by government subdivisions would conform to and coincide with that found upon the surface of the ground.
In such a case, if it should thereafter appear that there was an actual difference between the description as given in the instrument and the physical marks and boundary placed upon the ground, the former would necessarily yield to the latter, and so it is here. The question resolves itself to this: What land did the plaintiff purchase ? Did he purchase the land as marked and bounded by physical monuments upon the surface thereof, or did he buy land to be bounded by an imaginary line that it was represented to him coincided with the actual markings upon the ground? The only thing to be determined in this case is what land the plaintiff purchased, and we answer that question by saying that he purchased the land as it appeared staked and marked and bounded upon the surface thereof when he went upon it, inspected it and purchased it, and that is the land he is entitled now to have, and he should have a decree quieting his title and establishing his right to this specific and identical tract of land. For the foregoing reasons I concur in reversing the order and judgment of the trial court and remanding the cause for further proceedings.