11 Or. 33 | Or. | 1883
By the Court,
This was an action of ejectment brought to recover a certain piece of land described in the complaint. There is nothing in the pleadings to require further notice. The cause was tried by the court without the intervention of a jury; and the principal facts found and relied upon to sustain the conclusions of law and the judgment thereon, are, that in 1866 John Cox and wife sold and conveyed to one Tom Munds a certain portion of his donation claim containing two hundred acres; that at the time of the sale of said land by Cox to Munds, it was surveyed and the corners of said tract of land marked with stakes and stones, and that Cox and Munds were present at said survey and marking of said corners; that in 1872 Munds built a fence one-half way on the line he claimed to be the correct west line between himself and Cox, and that Cox acquiesced in said fence as being on the line between himself and Munds; that
As conclusions of law, the court found that the plaintiff was not entitled to the possession of the real property described in the complaint, or any part thereof, and that the defendant was entitled to a judgment for his costs and disbursements, which was entered in accordance therewith. Are the facts found by the court sufficient to sustain the judgment, or in other words, to establish the boundary line as claimed by the defendant? Agreements made in respect to disputed boundary lines are based upon the fact that the
In Smith v. Hamilton, 20 Mich., 438, the court say: “It has been held very generally that where there has been an honest difficulty in determining the lines between two neighboring proprietors, and they have actually agreed by parol upon a certain boundary as the true one, and have occupied accordingly, with visible monuments or divisions, the agreement long acquiesced in shall not be disturbed, although the time has not been sufficient to establish an adverse possession. Where the transaction has not been such as to amount merely to an honest attempt to determine a doubtful line, the authorities have not permitted an agreement to stand which would operate as a violation of the statute of frauds.” (Kelloggs v. Smith, 7 Cush., 375.) It seems to be clear from this review of the authorities unless the boundary line between the parties be truly in dispute and doubt, a parol agreement will not of itself affect the true title as it would be wholly. imperative and void under the statute of frauds. Now it does not appear from the findings that the boundary line was uncertain or indefinite, or ever in dispute between Cox and Munds, or Cox and the defendant. Nor does the court find whether the fence built part of the way in 1872 by Munds, and extended by Cox and the defendant to the south-west corner of the tract of land in 1876, was built on the line as surveyed in 1866. Undoubtedly all the parties engaged at the different times specified in the construction of the fence, supposed it was on the true boundary line, and such was the only effect of Cox’s acquiescence and admissions. There is nothing
Judgment reversed.