I concur in the conclusion reached in this opinion but not in certain rules of property announced therein. It is because such are rules of property and because, in my opinion, they are incorrectly stated, that I concur specially. In the opinion of the court it is said, "Boundary lines may be fixed by parol agreement or by acquiescence when supported by possession in harmony with such agreement." The opinion cites Berghoefer v.Frazier, 150 Ill. 577. This statement of the rule is, in my opinion, too broad to be considered accurate. The rule recognized in this State since the very early case of Crowell v. Maughs, 2 Gilmer 419, is there stated as follows: "It is a familiar doctrine of law, that title to real estate cannot be transferred by parol. * * * It is settled, however, that proprietors of adjoining tracts of land may, by a parol agreement, settle a disputed boundary line between them. Such an adjustment of the boundary, if followed by corresponding possession, may be binding on the parties, not because it passes title, but because it determines the location where the estate of each is supposed to exist. —Jackson v. Dysling, 2 Caines, 198; Kip v. Norton, 12 Wend. 127."
In Yates v. Shaw, 24 Ill. 368, the rule is stated as follows: "In all matters of uncertainty and dispute, the parties may, without doubt, compromise and end the dispute. And they may as certainly fix by agreement, the boundary lines separating their lands, as other disputes. And when they have thus agreed upon the position of such boundary, and acted upon it as a true line, they should be estopped from asserting another and different line." *Page 301
This rule was again followed in Bauer v. Gottmanhausen, 65 Ill. 499, where the boundary line was in dispute and uncertain and was fixed by parol agreement. Again in Cutler v. Callison, 72 Ill. 113, there was a dispute as to the boundary line, and it was settled by one party paying the other $25 to leave the fence where it stood as the dividing line. It is again stated in Duggan v. Uppendahl, 197 Ill. 179, that lines may be established by parol agreement where there is a dispute or uncertainty as to the true line. In Fisher v. Bennehoff, 121 Ill. 426, there was a dispute as to the correct line, and the same was settled by parol agreement and possession thereunder. In 69 A.L.R. page 1433-note, the rule is again stated, and cases from thirty-nine States of the Union and Federal and Canadian courts of review are there collected. There is no exception in the universality of the adoption of this rule.
That the rule applies only when there is a dispute or uncertainty as to the correct line, has been many times stated by this and other courts. In Grubbs v. Boone, 201 Ill. 98, it was held that "the rule as to the establishment of a disputed or unascertained line between lands of adjoining owners by verbal agreement and possession in accordance with such agreement, has no application" to an agreement there shown to involve no such dispute or uncertainty as to the true line. In Sonnemann v.Mertz, 221 Ill. 362, it is held that if the location of the true boundary line is known to the owners, they cannot transfer the land to one another by agreement changing such location, and the rule relating to parol agreement does not apply. It is said inPurtle v. Bell, 225 Ill. 523, "But this rule [relating to establishing a line by parol agreement] only applies where there is a dispute as to the line or the line is unascertained." InMarks v. Madsen, 261 Ill. 51, it is again held that this rule applies only under two conditions, first, when the line is in dispute, and, second, where it has not been ascertained, *Page 302 and in either case, the agreement is for the purpose of establishing the disputed or unascertained land. In Jones v.Scott, 314 Ill. 118, where the matter was presented on able briefs, it was held essential to establish boundary by parol agreement in the absence of adverse possession, that there be a dispute or uncertainty as to the line. I know of no case in this State supporting a contrary view.
In the following cases, a dispute or uncertainty as to the line is held to be a requisite of the rule: Wood v. Lafayette, 46 N.Y. 484; Litel v. First National Bank, 196 Wis. 625, 220 N.W. 651;Bartlett v. Young, 63 N.H. 265; Alt v. Butz, 81 N.J.L. 156,79 A. 881; Hanlon v. Ten Hove, 235 Mich. 227, 209 N.W. 169; Barnes v. Allison, 166 Mo. 96, 65 S.W. 781; Peterson v. Hollis,90 Kan. 655, 136 P. 258; Brock v. Muse, 232 Ky. 293, 22 S.W.2d 1034;Kyle v. Clink Scales, 22 S.W.2d (Tex.Civ.App.) 729; HighGravity Oil Co. v. S.W. Petroleum Co. 290 Fed. C.C.A. 6, 370.
The opinion in Berghoefer v. Frazier, 150 Ill. 577, cited in this opinion as authority for the broad statement that division lines may be fixed by parol agreement or by acquiscence when supported by possession in harmony therewith, does not disclose whether, in that case, the agreement was in settlement of a dispute or to fix an uncertain boundary line. All of the cases relied on in that opinion as supporting that broad statement of the proposition will be seen, upon examination — where the fact as to the existence of dispute or uncertainty appears — to disclose that there was such a dispute or uncertainty. That case has not been cited in any later case as supporting the broad proposition laid down in this opinion.
It may be further observed that in this case, as the opinion discloses, the division line was established by deeds between Stanley M. and LaFayette Thomas, and a division fence was erected and thereafter maintained on the line established by those deeds, and so remained until the filing *Page 303 of the bill herein. It would seem, therefore, that this is not a case calling for the announcement of the rule with reference to the establishment of division lines by parol agreement.