ON REHEARING.
Opinion delivered March 18, 1912.
Hart, J.In our original opinion it was held that the rule of apportioning to each abutting proprietor such proportion of the new shore line as his ownership to the original shore line bears to the whole line on which the accretion abuts and dividing the area to be proportioned by connecting the points on the new shore line is well recognized as a proper one to follow unless it results in such irregularities as to make it inequitable.
It is insisted by counsel for appellee that the rule adopted by the court is erroneous. But, after a careful consideration of the authorities bearing on the question, we adhere to our original opinion, and deem it well sustained both upon principle and the .adjudicated cases.
In the original opinion we did not refer to or discuss the testimony relating to an agreed boundary line of the accretions. A majority of the court was then of the opinion that the testimony was not sufficient to establish an agreement as to the boundary line between the accretions;' and for that reason it was not necessary to discuss it because we decided for appellants, who were insisting that the testimony was sufficient. A re-examination of the testimony leads us to the conclusion that the contention of appellants was correct on this point.
H. W. Burrows was the former owner of the Mobbs land, and Levin Hill was the former owner of the Malone lands. Burrows was dead at the time of the trial of this case in the lower court. Levin Hill testified in behalf of Malone, as follows:
“When I sold the timber on the accretions to this land. I went to see Mr. Burrows about establishing the boundary line between the accretions of our respective lands. Mr. Burrows and myself agreed that the extension of the north and south line as it existed on the original tracts of land should be the boundary line of our accretions. Mr. Burrows went ahead and pointed out the line, and I followed and blazed the trees. The line so established was agreed by us to be the boundary line between our accretions, and was thereafter recognized by us as the true line. Burrows afterwards deadened the timber on his land up to this line, and I cut the timber off of mine and cleared it up to the line. This line was established and blazed out to the sandbar, and was afterwards recognized by Burrows and myself as the true line between up, up to the time I sold to the appellant.” E. A. Wolverton, testified: “Mr. Burrows in his lifetime told me that he and Mr. Levin Hill had agreed that the section line between them should be extended north over the accretions, and that the line so extended should be the boundary line between them as to the accretions.” Hence it will be seen that there was a definite settlement between them as to the boundary line of the accretions and the testimony is practically undisputed.
In the case of Payne v. McBride, 96 Ark. 168, we held: “Where there is doubt, dispute or uncertainty as to the true location of the boundary line the parties ma*y by parol fix a line which will, at least when followed by possession with reference to the boundary so fixed, be conclusive upon them although the possession is not for the full statutory period.” To the same effect is O’Neal v. Ross, 100 Ark. 555; Butler v. Hines, 101 Ark. 409.
It follows that the line agreed upon by Burrows and Hill is the true line between the parties as to the accretions.
The judgment heretofore rendered is modified to this extent, and the chancellor is directed to enter a decree fixing the boundaries between appellants and appellees as to the accretions on the agreed line.