Dissenting.
I am unable to concur in the conclusion reached by my associates. The cause was tried by a jury and certain questions submitted to it and the answers thereto were adopted by the court as a part of its finding of facts. The jury found (1) that the plaintiff and defendant, about July, 1910, employed A. E. Christensen, the county surveyor, to survey and establish the line between their respective tracts of land; (2) that Christensen, pursuant to said employment, did survey and establish the line between the lands of plaintiff and defendant, about July, 1910; and (3) that after said line was so established by Christensen the plaintiff and defendant acquiesced therein and agreed to said line at the time said survey was made.
There is a direct and substantial conflict in the evidence on the question of acquiescence, but there is no conflict as to the employment and payment by both parties of said surveyor for establishing said lines; and since there is a substantial conflict on the main issue, under the well-established rule, both by statute and the decisions of this court, the findings of the court and the jury ought not to be disturbed.
As I view it, the great weight of evidence supports the verdict, and this court has so often held that where there is a substantial conflict in the evidence the verdict of the jury or the findings of the court will not be disturbed, the general rule so long adhered to by this court ought not to be set aside, and that rule is that where there is a substantial conflict in the evidence and there is substantial evidence to support the verdict and findings, such verdict and findings will not be disturbed. (Miller v. Blunck, 24 Ida. 234, 133 Pac. 383; Davidson Grocery Co. v. Johnston, 24 Ida. 336, Ann. Cas. 1915C, 1129, 133 Pac. 929; Montgomery v. Gray, *5226 Ida. 583, 585, 144 Pac. 646; Cameron Lumber Co. v. Stack-Gibbs Lumber Co., 26 Ida. 626, 144 Pac. 1114.) We not only have the above and numerous other decisions of the supreme court of this state upon this question, but sec. 4824, Rev. Codes, provides that “whenever there is substantial evidence to support a verdict, the same shall not be set aside.” It seems to me that the decision of my associates not only reverses the decisions of this court above cited and other decisions of this court, but it nullifies the provision of the statute above quoted.
The evidence shows that this line was established in the summer of 1910 and agreed to, and that it was also agreed, after the line was established, that appellant should have the crop then standing on said land and that thereafter the respondent should have the crops raised thereon. This agreement was carried out until 1912, when the plaintiff procured an injunction against the defendant restraining him from harvesting the crops then growing on said land. This line had been established by a civil engineer named Young prior to the time Christensen established it, and the line established by Christensen corresponded exactly with the line established by Young.
My associates seem to hold that the rule which should govern in this case is that such acquiescence or agreement between the parties should continue for a term of five years, or during the full period of the statute of limitations. I cannot see that that question has anything to do with this ease. These parties employed a surveyor and agreed that they would abide by the line established by him. He established a line, put up stakes along the line, and for two years they did abide by it. It was not contemplated by said agreement that such agreement or acquiescence should- continue for a term of five years, and in ease one of the parties saw fit to go back on that agreement sometime during the five years then the line should not stand. The question of long acquiescence has nothing to do with the establishment of said boundary line, but it was established by agreement of the parties and in no way involves title by adverse possession.
*53The majority say in their opinion that “At the expiration of two years and four days from the date of the survey this action was commenced, so that the parties neither acquiesced in nor occupied according to the line established by it for a period of time equal to that fixed by the statute of limitations.” That was not necessary. They agreed to employ a surveyor, each paying a part of his compensation. The surveyor established the line under their agreement, and the defendant ought not to be permitted to violate said agreement on the ground that the defendant had not occupied the land under said agreement for the full period of time to establish title by adverse possession.
The defendant had possession of said land for about two years under said agreement, and would anyone contend that if that was their agreement that both parties must acquiesce in it for five years before it would become binding? Title by adverse possession can never be acquired by agreement or acquiescence of the parties. The word “adverse” means that the possessor is holding adversely to the other party and not with his acquiescence and consent.
The record shows that Christensen afterward, at the request of the plaintiff, made another survey, and the second line of survey established the fact that the greater portion of the land in dispute belonged to the defendant.
This court ought not to uphold any litigant in violating the plain provisions of a contract like the one under consideration.
The judgment ought to be affirmed.