70 P. 901 | Or. | 1902
after stating the facts, delivered the opinion of the court.
It is contended by plaintiff’s counsel that the court erred in giving, over their objection and exception, the following instruction: “Where two parties by mutual and unqualified agreement cause a boundary line to be established between their tracts, and build their fences upon such boundary line, and afterwards dispose of the lands owned by them respectively, with the division fence so marked upon the ground, and the purchaser of either of said parties buys, relying upon the line so established, the other party is estopped from denying that such line is the true boundary line; and if you believe from the evidence in this case that, at the time McDonald purchased this land from Hutchinson, the boundary line between the land purchased by him and the southeast quarter of said section 28 was marked on the ground by the fence where it now is, and McDonald bought relying upon it as £he true line, then I instruct you that the plaintiff is estopped from claiming that the line is other than the one so agreed to by the defendant, — if you find from the evidence such was made, your verdict must be for the defendant. ’ ’
It follows from these considerations that the judgment is rer versed and the cause remanded for a new trial. Reversed.