The only questions in this case of any importance, arise upon the charge of the judge, and his refusal to charge as requested by the defendants’ counsel. The judge charged that if the boundary line between the two pieces of land, was erroneously located by the person designated by Raynor, (under whom the plaintiffs claim,) to point out the line, and Raynor was ignorant that any mistake had been made, and was also ignorant of the subsequent improvements made by the defendant, in fencing and clearing up to such line, the plaintiffs were not estopped or precluded from insisting upon the true line. To this part of the charge the defendant excepted, and requested the j udge to charge that if Blanchard, the person designated by Raynor to point out the line, was the agent of the latter for that purpose, and did locate it; and each party acted upon it; and the defendant made improvements in consequence of it, the plaintiffs were estopped from claiming to the true line. The judge refused so to charge, and exception was taken to the refusal. There was evidence in the case tending to show, that Raynor was a cripple, unable to get from his house, and did not know where the line was between himself and the defendant; that when the defendant called upon Raynor in reference to building the line fence, Raynor sent him to Blanchard, to have him, Blanchard, point out the line, saying that Blanchard knew where the line was; and that Raynor never knew where the line had *529been pointed out or located, nor what the defendant had done in the way of fencing and improving the land. This location was made in 1855, and the improvements upon the land were made from year to year after that. The jury found in favor of the plaintiffs on this question of Raynor’s want of knowledge. Upon these facts as established by the finding of the jury, the elements necessary to create an estoppel are entirely wanting. Raynor, supposing that Blanchard knew where the line was, sent a request to him to point it out to the defendant. It turns out that Blanchard did not know where the line in fact was, and pointed out the wrong line. The defendant was as much bound as Raynor to know where the true line was between the two lots, and it does not appear from the case that there was any difficulty in ascertaining the true line by survey and measurement. In fact I do not see why Blanchard, under the circumstances, was not as much the agent of the defendant as of Raynor. It is not the case where the line was uncertain and difficult to discover, but a case where the defendant instead of taking any steps to ascertain, choses to take the word of Blanchard, and thus, by the mistake of Blanchard, an erroneous line is located, and the partition fence built upon it. Raynor never knew where the line was located, and never knew that the defendant was making improvements upon his land in reference to the erroneous location. The erroneous location was as much the fault of the defendant as of Raynor, and as the latter never knew where the location was made, nor that the defendant was making improvements upon the land on his side of the line fence, he was not called upon to speak, or to give notice, and his silence under the circumstances, implies no acquiescence in the defendant’s proceedings, and no wrong. There is no case to be found, where an erroneous boundary line, established under such circumstances, has been held binding and conclusive upon the *530ground of estoppel in pais, short of twenty years possession under claim of title. Here possession under the erroneous location has been much less than twenty years. The facts as found by the jury, present the simple case of one making improvements upon the land of another,under an honest, but erroneous belief that he was the owner. This forms no ground for transferring the title of one to another; nor for estopping the owner from reclaiming his own. . The later cases agree that possession and claim of title, under an erroneous location, short of twenty years, is not sufficient to establish title in such occupant, as against a valid paper title, unless such location was made, and the possession under it has been continued, under such circumstances as to estop the party having the paper title from asserting his claim against such occupant. (Terry v. Chandler, 16 N. Y. Rep. 354. Baldwin v. Brown, Id. 359. Vosburgh v. Teator, 32 id. 561. Reed v. Farr, 35 id. 113. Clark v. Wethey, 19 Wend. 320.)
In Jackson v. McConnell, (12 Wend. 421,) relied upon by the defendant’s counsel, the action was brought by the vendor against hié vendee. The defendant was put into possession of the premises by the vendor’s brother and agent, who assisted in making the survey and location of the land, as the premises described in the deed, and who was also one of the plaintiffs’ lessors. The weight of evidence was decidedly in favor of the accuracy of the location, according to the description contained in the deed. The court say that it is “ very questionable whether under such circumstances a vendor can he permitted to allege error in the location, but if he can, it is certainly incumbent upon him to establish the error by the most incontrovertible evidence.” A new trial was granted in that ease, because the judge at the circuit had charged the jury “ that the plaintiff was not bound by the location, if it was erroneous in any respect, unless he knew of. the error at the time, and expressly agreed to be bound by it.”*531In this respect it was held that the circuit judge went too far. There is no such error in this case. Here Raynor did not know, at the time, where his line was, and did not know where it was located, when such location was made, nor that the defendant was making the improvements. He never expressly agreed to be bound, and never remained silent when good faith and honest dealing with his neighbour required him to speak. Mere agreement upon an erroneous line is not enough, within any of the cases, and especially the later cases on this subject. Both the charge and the refusal to charge in this respect, were correct. The exception to that part of the charge that the possession for twenty years must be open, notorious, uninterrupted and peaceable, to give one who has no title, legal ownership, as against the true owner, is of no avail in this case. The exception is to the term “peaceable,” But the use of that term, if wrong, could by no possibility have prejudiced the defendant, as his possession had never been disturbed, whatever may have been its character. It had been peaceable as far as it went, and there was no question that it was otherwise. The general tenor and scope of the charge on this point was right, and the exception to a single word in the sentence, which had no bearing upon any issue, or question in the case, cannot be allowed or entertained. A hew trial must therefore be denied, and judgment ordered for the plaintiffs, upon the verdict.
[Monroe General Term, September 7, 1868,E. D. Smith, Johnson and J. C. Smith, Justices.]