We are satisfied that the decision of the referee is in accordance with the true line, as established by actual survey, and in that particular substantial justice has been administered. The vital question presented by this appeal, as we regard it, is whether the defendants were successful at the trial in establishing their defense upon the alleged ground that there had been a practical location of the line, by which the rights of the parties had become settled. We have given that question careful consideration, both in regard to the facts of the case, and the law applicable thereto, and have reached the conclusion that the decision of the referee was correct upon that question, and that the plaintiffs’ rights have not been concluded by what occurred in regard to the attempted location of the line, based upon the survey of Charles L. Fuller. John Patrick was the common source of the title under which the plaintiffs and defendants claim. The defendants received from John Patrick their deed of the premises claimed by them, January 5, 1875. On the 18th
*614day of February, 1875, the plaintiffs received from John Patrick a deed of the premises claimed by them. After the plaintiffs liad taken possession of the premises some question arose in regard to the line between the premises of the respective parties, and John Patrick, aided by Mr. Stephen Warren, caused a survey to be made by Charles L. Fuller, and upon the line produced by such survey a chalk line was drawn, and the plaintiff John Sanford and the defendant William Cox were asked whether they were satisfied with such line, and each replied in the affirmative, whereupon the partition was removed and located upon such line by the direction of Mr. Patrick. It is apparent from the evidence that all of the parties at the time supposed that the line surveyed by Mr. Fuller was the correct line, and that their acquiescence therein was based upon such assumption. The referee has found the following: “But the line so drawn was not a line drawn and fixed as or in compromise of any dispute between the parties.” We are satisfied that the evidence sustains such findings. The survey was at the instance of Mr. Patrick in order to ascertain the true line, and neither party assumed to know where it was, and each was desirous that the true line should be located, and neither manifested any willingness to abandon or surrender any of their rights, but were willing to accept the true line. There was therefore no settlement or compromise of a disputed line, as neither party assumed to know where the true line was previous to the survey by Mr. Fuller, and doubtless each at the time supposed that such survey was correct. It has been demonstrated by a survey made jointly by Mr. Fuller and Luther D. Eddy that the survey made by Mr. Fuller in the first instance was erroneous, and consequently all that was done by the parties in the attempt to locate the line based upon Mr. Fuller’s survey was based upon a mutual mistake in regard to the correctness of such line. Practically the parties were willing to accept and abide by it if it was the true line, and not otherwise; and really no dispute or controversy was settled between them. Under such a state of facts we are satisfied that we should not adjudge that either party became estopped by such attempted location of the line. It has been shown that the true line was susceptible of demonstration by a survey correctly made, and consequently there was no practical difficulty in ascertaining its true location, and there really existed no well-founded cause for dispute or controversy between the parties, and there was therefore nothing to compromise in the sense required to constitute the basis of a practical location. We do not overlook the expression contained in the eighth request of the defendants to the referee to find, which is as follows: “That while negotiations for the sale from Patrick to the plaintiffs were pending, and before the delivery of their deed to them, a disputed question arose between the plaintiffs and defendants as to the westerly line of the defendants, ” etc. The answer thereto by the referee explains sufficiently what he intended to find upon the subject, and the nature of the dispute. There has not been shown by the defendants such an acquiescence by the plaintiffs in the line which was based upon the erroneous survey of Mr. Fuller which, as to its character or duration, can be regarded sufficient to conclude the plaintiffs’ right to repudiate such erroneous line, and to insist upon the true line. We therefore conclude that a practical location of the line has not been established. In support of the views expressed we refer to the following adjudications upon this subject: Hubbell v. McCulloch, 47 Barb. 288; Adams v. Rockwell, 16 Wend. 285; Baldwin v. Brown, 16 N. Y. 359; Jackson v. Douglas, 8 Johns. 286; Reed v. McCourt, 41 N. Y. 435. We are of opinion that the plaintiffs have not mistaken their remedy, as we think the action to recover the possession of real property may be maintained in the form adopted by the plaintiffs. The decision of the referee we deem correct, and should be affirmed, with costs.
Learned, P. J., concurs'.
*615Landon, J. I concur in the result, because I think the acquiescence for five years in the practically located line was not long enough. It was not necessary that the true line should be in dispute. Sherman v. Kane, 86 N. Y. 57.