*124Decided April 12, 1910.
On Petition for Rehearing.
[108 Pac. 125.]
Mr. Justice Eakindelivered the opinion of the court.
By the motion it is suggested that the court is in error in stating that it may be taken as conceded that the descriptions in the deeds include the ground claimed by plaintiff. That the 160 rods south from the north line of the claim, which the deeds designate as the south line of the Watson and Beal tracts, extends to the south line of the land claimed by plaintiff, there is certainly not one word of controversy. Not a witness was called to show where the courses and distances of the descriptions in the deeds would locate the south line of these tracts, and as the donation claim is just a mile square, it must be on the middle line of the claim, and there would be no room for controversy here if such measurements do not extend south of the north line of the tract plaintiff is contending for. Defendants only claim the ground described in their deeds.
Again, it is suggested that Miss Talbot fixes the time of the Henry survey as the time of the sale to Watson. Miss Talbot testified on May 22, 1907, that, “I was 54 years old day before yesterday.” The Watson deed was made November 28, 1856, so that she was just 31/2 years old ,at that time. Her recollection now of the time and circumstances of a survey made when she was 3% years old can hardly be depended on to determine whether it was made before or after the execution of the deed to Watson, for the purpose of contradicting or controlling the description contained in the deed. However, she testified that the survey was made in 1858, but if she meant 1856 yet she says the survey followed the making of the deed to Watson. Therefore the description in the deed has no reference to that survey or its stakes, and such stakes did not become monuments in any manner affect*125ing the description in the deed. Counsel for plaintiff say that her contention is for the location, on the ground, of a line 160 rods south of the north boundary of the Talbot claim, as located at the time of the deed, evidently meaning the Henry survey. But that survey was not made at the time of the execution of the deed. However, plaintiff is entitled to have the line located 160 rods south of the north line of the claim. To defeat the descriptions in the deeds, plaintiff also urges that the fence line or a stake set by some one has been acquiesced in for a long time, and should control. But there never was any dispute as to where the line should be; nor was there any circumstance to call for a settlement of a dispute. Legal agreements as to disputed boundaries are based upon the fact that the true line is not only in dispute, but to some extent undefined and unknown. Lennox v. Hendrix, 11 Or. 38 (4 Pac. 515). Here there was no dispute, no indefiniteness or uncertainty; nor was there a settlement of a pretended dispute. On the contrary, the grantors conveyed, out of a larger tract, a specific quantity of land by metes and bounds, leaving nothing indefinite or uncertain. And the grantor or his heir now seeks to dispute the description, not by reason of a mistake, but because, by erroneous surveys, stakes were set inconsistent with that description. She can only do this by showing that the grantee has lost part of the land conveyed to him by some means known to the law; such as an agreement within the statute of frauds, settlement of a disputed boundary or adverse possession, none of which has been shown in this case.
As to the description in the deed by Watson to Beal, the point of beginning is: “A stake or corner” identified by courses and distances, but plaintiff is not relying upon this stake or corner, nor is it shown to be a monument controlling the measurements. The description places the south line 160 rods south of the north line of the claim, *126and “to contain just 20 acres, no more and no less.” The description in the deed from Talbot to Beal commences at a “stake or corner” which is 160 rods south of the north line of the claim, “said stake, corner or beginning place, being the southeast corner of a tract of land sold by the above parties to W. P. Watson,” “to contain just 10 acres, no more or less.” There can be no doubt as to the meaning of these descriptions; they being specific as to lines and quantity of land conveyed, and the purpose being to make the south line of both tracts conform to the south line of the original Watson tract. No monument is mentioned as a controlling or permanent one. It is said in Hale v. Cottle, 21 Or. 580, 586 (28 Pac. 901, 902): “If it appear from the face of the conveyance, in the light of surrounding circumstances, that the courses and distances as given correctly describe the land intended to be conveyed, they will of course prevail,” regardless of the monuments mentioned.
The motion is denied.
Affirmed : Rehearing Denied.