The real questions in this action to be tried were, First. Was there fairly and truly a disputed boundary line between the parties to this action? If there was such a disputed line, then, Second. Was this disputed line settled between the parties, and such acts of adoption of the line taken upon the settlement, as to make it a binding line between them? These facts being controverted, were peculiarly questions for the jury, and if the judge, on the trial, committed no error in submitting these questions to the jury, their verdict must be conclusive. It is seen that on the trial of an action of trespass, to which the defense set up is title in the defendant, the plaintiff, in the first instance, must at least show possession. This he did, with such evidences of uninterrupted occupation and claim of title for a long period of time as was sufficient, if uncontradicted, to entitle him to recover. The defendant then offered evidence, tending to prove a dispute as to the boundary line, a proposition to settle the dispute by a survey, the agreement of the parties as to a survey, and to the choice of a surveyor, the running of a line by the surveyor, the setting of stakes, the adoption of the line by the plaintiff at the west end of the line by making a fence on such line, the making of a few panels of fence by the defendant on the other end, and the consent of the plaintiff that the defendant might defer making the remainder of his part to some convenient day. The questions of running an entire line, and the establishment of any division line between the parties by the surveyor, were controverted, and were facts for the jury. As, also, was the agreement by the plaintiff, that the defendant might subsequently make or remove his portion of the fence. The defendant also produced deeds, surveys and other evidences, showing that the title of the locus in quo was in him; and also, evidence that the plaintiff's predecessors in title occupied the premises in dispute *Page 567 by special permission of the predecessors of the defendant for the purpose of access to a watering place. These leading features in the facts seem necessary to be stated, in order to understand the application of the judge's charge, to which exceptions were taken, and now earnestly urged to be erroneous, and upon which the case must be decided. The two first propositions excepted to were as follows:
"In case the plaintiff was in possession of the land upon which the chestnut tree stood, and when thus in possession, if the defendants cut it down, the plaintiff is entitled to recover, unless the defendants were the owners of the land and entitled to the possession under such title at the time the tree was cut."
"That in case the plaintiff has the fee of the land in dispute, and was in possession thereof under the same when the tree was cut, then he is entitled to recover."
It is argued that those propositions misled the jury, for want of qualification, and thus keeping from them the true issue, to wit: Whether the parties having a disputed boundary line, had settled this by establishing a line by agreement. This argument would have great force had the charge ended with these exceptions, or had the judge omitted to charge elsewhere as to the effect of establishing such a line by the parties, or had he refused to charge at all upon that question, after request made. I think it may be regarded as settled law at this day, that the settlement of a disputed boundary line between the parties by arbitrament or parol, and especially where equivalents of benefit or advantage are mutually received and acted on, will bind the parties to it, not by way of transferring title from one to the other, which the statute of frauds prohibits, but operates by way of estoppel.
It is the policy of the law to allow parties to settle and adjust doubtful and disputed facts between themselves, and when such matter, which before was uncertain, has been established by agreement between the parties, upon good consideration passing between them, they are not permitted afterwards to deny it. (Jackson v. Dysling, 2 Caines, 197; Sellick v. Adams, 15 Johns., 197; Shepherd v. Ryus, id., *Page 568 497; Jackson v. Gajer, 5 Cow., 387; Robison v. McNeall, 12 Wend., 580; Davis v. Townsend, 10 Barb., 333.)
The two propositions above charged were sound, if there was proof to sustain this, the plaintiff's theory of the case, and I understand the charge was only intended to be applicable to that theory, because a subsequent portion of the charge contains the qualification which, it is claimed, was thus erroneously omitted. The judge, subsequently in his charge, said:
"That in case this was a disputed, indefinite, uncertain line or boundary, then the parties have a right to fix upon a line by agreement, and such established line, when made and settled, becomes binding upon the parties as the true bound ary between them."
Treating this proposition as a qualification of the other two, which is the fair way to consider and interpret the charge, I am unable to see that error was committed.
The following proposition is to be regarded as a continuation, and also an explanation of the last preceding one:
"That the agreement claimed by defendants to be established in this case, fixing the boundary, if any agreement there was, would be void and of no effect if the line or boundary was already known and established, and was not indefinite and uncertain."
The simple meaning of this, upon a fair reading of it, is, that parol agreements to change or establish boundary lines, where there is no dispute or uncertainty, are within the statute of frauds, which require a writing to pass title, thus distinguishing between cases where the line is disputed or uncertain, and those which are not so, the former being binding upon the parties, the latter not. This construction of the language of this charge, it seems to me, is that which the ordinary or common mind would accept as the fair understanding of the two last propositions, and I do not think them subject to criticism beyond that. The charge, as so understood, is undoubtedly the law. (See authorities, supra, and Rockwell v.Adams, 6 Wend., 467; Same v. Same, 7 Cow. 161; Terry v.Chandler, 16 N.Y., 354.) *Page 569
The three next propositions as charged are as follows:
"That if the plaintiff's paper title does not cover the land in dispute and the defendants' does, then the defendants are entitled to your verdict, unless the plaintiff has acquired a title by an adverse possession, which would bar an entry by the defendants under their paper title, and an adverse possession must be established by the party claiming it against prior paper title."
That to make out an adverse possession sufficient to bar an entry under a prior paper title, the party claiming it must establish a continuous, uninterrupted possession of the land in dispute for twenty-five years, if prior to the year 1828 (prior to the Revised Statutes), in hostility to the proper paper title.
But that since the Revised Statutes, a continuous, uninterrupted possession of the land in dispute for twenty years, in hostility to the proper paper title, is sufficient; but such twenty years' possession must be prior to the commencement of the action, and under a claim of title.
To the two latter of these three propositions no point is taken on the argument. To the first, the same objection is repeated as before, that it assumes the title, and the plaintiff's actual possession, to be the only question upon which the jury is to pass; entirely ignoring the defense of a settlement of a disputed boundary line, and that by it the jury must have been misled. If the matter claimed to have been omitted be afterwards charged, it is not to be presumed that the jury had not sufficient intelligence to comprehend the qualifying influence of one proposition upon another. If the defendants' paper title did actually cover the locus in quo, there was evidence on the part of the plaintiff before he rested, of an adverse holding, upon which he had a right to have the law charged; and though the defendants' evidence was strong enough, perhaps, to overcome this claim of adverse holding, it was still a case of some conflict of testimony, and was a proper subject to be submitted to the jury, and the charge in this respect, upon that theory, I think, was not error.
The judge also charged: That if the plaintiff was in possession *Page 570 of the land in dispute by the license of the defendants, such possession would not be what is termed an adverse possession.
This proposition is not now urged as error.
The counsel for defendants then requested the judge to charge the jury that if the paper title of both parties covered the land in dispute, then a parol agreement fixing the line was good; but his honor the judge refused to charge other than as above charged.
The counsel for the defendants then requested the judge to charge the jury that if the defendants' deed covered the land in dispute, then that a parol surrender, after a time sufficient to bar an entry had elapsed, was good. His honor the judge refused to charge otherwise than as above charged.
The first of these two propositions and refusals to charge only, is now urged as error.
I do not think this exception well taken. We have already said, that only in the cases where the boundary line between the parties is disputed, that a parol agreement establishing the line is good. This last proposition, so now urged as error, has no reference to a disputed boundary line between the parties, but to the land, or the locus in quo which was disputed at the trial. It might well happen, that the paper title of both parties covered the same land, and yet there be no dispute between the parties about the boundary line between them. The authorities recognize a clear distinction between a dispute about the title to lands, and a dispute about a boundary line. It is the confounding of these two questions, or the regarding them as identical, that has often misled parties in seeking these remedies. Whether or not actual injustice is the result of the trial, we are unable to determine; the objections are all centered in the exceptions to the charge of the judge. I do not think them well taken.
The result is, that the judgment must be affirmed.
Judgment affirmed. *Page 571