| Wis. | Jun 15, 1868
Tbe court, in its general charge, stated tbe law correctly, as to an estoppel growing out of a voluntary settlement of a disputed boundary line between adjoining land owners, and the erection of improvements on tbe faith of such settlement. It told tbe jury, that, in order to estop tbe plaintiff, “ be must have understood that there was an uncertainty about the true line, and that be was agreeing and assenting to tbe line fixed - upon; and if it appears that be did so agree, and hnew that tbe defendant afterward built bis fence upon tbe line thus fixed, and put. up valuable improvements, without objecting, be would clearly be estopped from denying that tbe fine agreed on was tbe true line.” But tbis being tbe correct law upon that subject, tbe fifth instruction asked by tbe plaintiff, and given, being repugnant to it, must be erroneous. That instruction was as follows: <£ Tbe conversation and acts of tbe plaintiff, Gove, will not estop him from claiming- in tbis action all tbe land to which be has a legal title, as against tbe defendant, White, unless it is shown by tbe evidence either, first, that said Gove falsely and intentionally made statements to White, wbicb induced White to make improvements on said Gove’s lands, believing it to be bis own ; or second, that said Gove, knowing bis rights in tbe premises, deliberately and voluntarily agreed with said White to fix upon a boundary line between bis land
It is obvious that the two grounds of estoppel contained in this proposition are different from, and the latter is repugnant to, the one stated in the general charge. The first one rests upon intentional false statements, an element not involved in a voluntary adjustment of a disputed boundary line, where both parties feel that there is an uncertainty about the true line. The second required that the plaintiff should have known his rights, and deliberately have agreed to give them up. This is plainly repugnant to the proposition in the general charge, that “ the plaintiff must have understood that there was an uncertainty about the true lines,’' because his rights were measured by the true line. Indeed, it is the fact that there is a dispute, and an uncertainty in the minds of the parties as to the true line, that gives to such voluntary agreements fixing a boundary that binding character which has induced the courts so steadily to uphold them.
As this instruction was incorrect in telling the jury that there could be no estoppel except upon one or the other of the two grounds stated in it, the judgment must be reversed, and a new trial had.
By the Cowri. — Judgment reversed, and a venire de novo awarded.