(dissenting).
Reluctantly, but' most earnestly, do I dissent. The facts contained in the majority opinion are sufficient for this dissent, with this additional notation. The agreement between Mrs. Ferrell and the defendants was made June 30, 1947. Harris built the fence about August of 1947. The complaint was filed December 4, 1950 (three-years, six months).
For sixty-three years this court has consistently maintained and supported the rule that a boundary line established by agreement by conterminous owners, followed by acquiescence and possession for the full statutory period of time required to acquire title by prescription, operates to establish the true line of the respective estates. Idaho Land Co. v. Parsons, 3 Idaho, Hasb., *119450, 3l P. 791; Bayhouse v. Urcjuides, 17 Idaho 286, 105 P. 1066; O’Malley v. Jones, 46 Idaho 137, 266 P. 797; Kesler v. Ellis, 47 Idaho 740, 278 P. 366; Woll v. Costella, .59 Idaho 569, 85 P.2d 679; Mulder v. .Stands, 71 Idaho 22, 225 P.2d 463; Edgeller, v. Johnston, 74 Idaho 359, 262 P.2d 1006.
Conversely, that such an agreement existing for only two years and four days, does not make the line so established binding or conclusive upon owners of land abutting thereon. Woodland v. Hodson, 28 Idaho 45, 152 P. 205, cited with approval in Campbell ■v. Weisbrod, 73 Idaho 82, 245 P.2d 1052.
While Campbell v. Weisbrod, supra, decided in 1952, and upon which a majority opinion rests, announced a new rule, that where a buyer and seller agree and mark the boundary, the line thus fixed controls the courses and distances set out in the deed subsequently executed to effectuate the division agreed upon. While the rule as announced does not require any lapse of time by acquiescence therein by the parties, the ■court in this case leaves no doubt that there must be, in addition to the agreement, an .acquiescence by the parties for in explaining the rule the court says there must be both an agreement to fix the boundary, and that the seller must acquiesce therein for a .considerable period of time to be estopped, and what has been said of acquiescence by the seller is not to be construed as a holding that such acquiescence alone for the period involved would be sufficient to establish title by “acquiescence”, but that the seller’s acquiescence is regarded as competent evidence of the agreement. All of the authorities cited in the majority opinion to support the above rules of law were cases involving a period of acquiescence for more than five years, our statutory period of time required to establish a prescriptive right, §§ 5-207 and 5-210, I.C., except the case of Draper v. Griffin, 61 Cal.App.2d 281, 142 P.2d 772, in which the line was established four years, and Needham v. Collamer, 94 Cal.App.2d 609, 211 P.2d 308, where the line was established for a like period of four years, which cases were decided on the rule that where the property is improved to such an extent that a substantial loss would result if the position of the line was changed, both parties would be estopped to have the line changed, which are not the facts in this suit. Appeal of Moore, 173 Kan. 820, 252 P.2d 875, where the line had been established for seven years, the court in citing Steinhilber v. Holmes, 68 Kan. 607, 75 P. 1019, a case where the line had been established for fourteen years, did announce the rule that where the parties agreed and acquiesced in an established line, even though the period of acquiescence falls short of the time fixed by the statute for gaining title by adverse possession, it becomes an established line. All of the authorities cited by the majority opinion on these rules support this dissent rather than the majority opinion.
*120The court has by the language used in the opinion in announcing the above rules, namely, where seller acquiesced therein for a considerable period of time, and that “seller’s acquiescence is merely regarded as competent evidence of the agreement”, has for all effects overruled all of the cases of this court for the past sixty-three years, which required agreement followed by acquiescence for at least five years to estop either party, including Edgeller v. Johnston, 74 Idaho 359, 262 P.2d 1006, decided November 3, 1953, which corrected the error in Campbell v. Weisbrod, 73 Idaho 82, 245 P,2d 1052, by re-establishing the former precedent. In effect the court announces that henceforth three years, six months of acquiescence is a considerable period of time, sufficient to estop one of the parties from ejecting the other.-
The only reason to incorporate such a phrase in the opinion as “who acquiesced therein for a considerable period of. time” (emphasis added), was to leave the law so flexible that it would take care of any future conditions and it most certainly will, because it destroys all .security of real property titles in Idaho, and makes chaos, uncertainty and confqsion, concerning real property interests, the law in Idaho. Such a phrase is relative only and indefinite in itself, because to the very young time passes very slowly, while to those who have reached that stage in life where the mental and physical faculties begin to slow down, time passes with ever increasing rapidity, hence what may constitute a considerable period of time, depends entirely upon the outlook of the individuals involved, unless it is established by this court that a considerable period of time must logically mean five years, as set forth in our statutes of limitations, to establish title by prescriptive rights, which rule was so definitely established in Kesler v. Ellis, 47 Idaho 740, 278 P. 366, wherein the court said:
“ * * * it is but logical to say that such acquiescence must continue for a period of not less than five years, thus conforming to the period established by the statute of limitations in cases of adverse possession.” At page 744 of 47 Idaho, at page 367 of .278 P.
The opinion sets forth no guidance for the trial courts, and no indication of what this court will hold to be a considerable period of time necessary to establish estoppel by acquiescence in future litigation of this nature. It has always been, and I venture to say still is, the prerogative of a trial judge to exclude all incompetent evidence from a case. The trial' court was-correct in excluding from evidence any and all offered testimony regarding the oral contract and acquiescence of the parties, first, for the reason that the contract being oral and made prior to the execution of the contract to purchase by defendants, is-merged in that instrument, and hence, any-*121such evidence is incompetent, as held by the court. Fidelity Trust Co. v. State, 72 Idaho 137, 237 P.2d 1058, and authorities cited in the majority opinion on this point. Secondly, such an agreement would constitute an attempt to convey land by an oral agreement in violation of our statute of frauds, and would in itself be void. Kunkle v. Clinkingbeard, 66 Idaho 493, 162 P.2d 892, based on the long established precedent of this court that in order to effect an estoppel, the agreement coupled to the acquiescence, must have existed for five full years. Because the trial court did not base the exclusion of this evidence on the last-mentioned ground, is in itself no reason for reversing the judgment, because this court in arriving at a correct solution of the case, which agrees with the erroneous conclusion reached by the trial court, will affirm such judgment. Glander v. Glander, 72 Idaho 195, 239 P.2d 254. What has been said of the evidence in this case is likewise applicable to the pleadings and the motion to strike portions of the answer. The entire answer, including those portions excluded, does not plead any defense, by estoppel, or otherwise, to this action, under the long-established rule of law above set forth. Therefore, the matters excluded in the answer are not sufficient as a defense, neither would any evidence of acquiescence during the period involved be competent evidence to prove estoppel against the plaintiffs.
The judgment should be affirmed.