(after stating the facts). Counsel for appellants assign as error the action of the court in giving instruction No. 2, which is as follows:
“The jury are instructed that if you find from the testimony in this case that the plaintiff caused the line to be established between her lands and that now claimed by the defendants, and the same was established by the county surveyor of White County, and at the time it was so established both the plaintiff and Latham, the owner of the lands at the time, now claimed by the defendants, agreed to the same and each took possession of their respective lands as established by said survey, and you further find that the land in controversy was included in the lands of the plaintiff, then your verdict will be for the plaintiffs.”
■ Counsel for appellees seek to uphold this instruction upon the authority of Payne v. McBride, 96 Ark. 168, and other cases decided by this court holding, in effect, that, the owners of adjoining lands being in dispute as to the dividing line, their oral agreement as to the boundary establishes the line, which, when followed by possession with reference thereto, is conclusive upon them.
The agreement in cases of this kind do not operate as a conveyance so as to pass title from one to another, but they proceed upon the theory that the true boundary line is in dispute, and that the agreement serves to fix the true line to which the title of each extends. The parties thereafter hold up to the line as they did before by virtue of their respective deeds. The theory is that the parties have simply by agreenlent settled the location of their boundary lines which was in doubt instead of having the court settle it for them. So when they orally agree upon the line and the agreement is accompanied by possession to the agreed line, such agreement will be valid and binding.
In the present case there is no testimony to show that the parties made any agreement about the boundary line, or that such agreement if made was executed. Mrs. Coffman’s testimony only goes to the extent of showing that she had a survey made and that the adjoining proprietor afterwards recognized its correctness and asked permission to move a house situated on the disputed strip. This testimony falls short of showing that the parties made an oral agreement establishing a boundary line which had been in dispute and that the possession of the disputed tract was taken by Mrs. Coffman by virtue of such agreement. According to her own testimony, she took possession of the disputed tract because the survey which she caused to be made by the county surveyor showed that it belonged to the tract of land owned by herself and her husband. The testimony does not establish any agreement between herself and Latham as to the establishment of the boundary line, or that she took possession of the strip in controversy under any such agreement. Hence there was no testimony upon which to predicate the giving of the instruction in question. It was calculated to confuse and mislead the jury by submitting to it an issue which was not in the case. Hence it was necessarily prejudicial and calls for a reversal of the judgment.
The court also instructed the jury that, the survey made by the county surveyor for Mrs. Coffman was prima facie evidence of the correct line so far as it appeared from the survey. This instruction was also erroneous. Our statute provides that the county surveyor shall keep a record of every survey made by him under the statute, and that a certified copy of this record under the hand of the surveyor shall be deemed prima, facie evidence in any court of record. Smith v. Leach, 44 Ark. 287, and Russell v. State, 97 Ark. 92.
In the present case the official record of the county surveyor was not placed in evidence, nor was it shown that notice that his survey would be made was given as provided by the statute. The statute is precise in prescribing that it is only a certified copy of the record of the county surveyor which shall be admitted as prima facie evidence. The oral evidence of the county surveyor gave his acts no more validity that the acts of any other surveyor. He was simply a witness in the case, and the probative value of his testimony is not fixed by law as in the case of his official return when the survey has been in the manner provided by the statute. There was no evidence in the case to which the instruction in question could apply, and its necessary effect was to confuse and mislead the jury. Hence it was erroneous and prejudicial. Beeman v. Black, 49 Mich. 598, and Arneson v. Spawn (S. D.), 39 Am. St. Rep. 783.
For the errors indicated the judgment must be re- , versed and the cause remanded for a new trial.