| Ark. | Jun 10, 1912
(after stating the facts). The proof shows that the tots in block “I,” in the town of Dardanelle, Yell County, Arkansas, were twenty-four feet wide. The grantor of appellant, J. C. Brooks, about the year 1894, erected brick buildings on lots 2, 3 and 4 in block “I” of said town. The evidence warrants the conclusion that each of these buildings was to have a front of twenty-four feet from the middle of the division wall between each of them. We are of the opinion that the proof warrants the conclusion that' the then owner of the lots intended for the walls between each of the buildings erected by him on lots 2, 3 and 4 to be a division wall. At the time he erected the buildings, he was not the owner of lot No. 1, adjoining lot 2 on the south, so he entered into an agreement with the owner of that lot, J. M. Harkey, that the wall which he was then building on lot No. 2, between lots 1 and 2, should be a party wall. The building of this wall was necessary to complete his building on lot No. 2; and, as he did not own lot No. 1, he entered into the agreement doubtless for the purpose of giving the owner of lot No. 1 an interest in that wall.
There can be no well-founded doubt but what the agreement between Brooks and Harkey, set forth in the record, was intended to be an agreement for the erection of a party wall. That being true, it can not be maintained that Brooks or his grantees were at that time in the possession of the entire wall between lots 1 and 2; or, in other words, the half of the wall that was assigned to Harkey under the agreement was in his possession from the date of that agreement, and those who claimed under him got the benefit of his possession. The contention of appellant .that he has twenty-four feet front in lot 2, measured from the south side of the wall on lot 2 to the south side of the wall on lot 3, would have the effect of ignoring the party or division wall between Brooks, his grantor, and Harkey, through whom appellee deraigns title, and also the division wall that Brooks evidently intended to erect between the three buildings. The contention of the appellant gives the owner of the three buildings erected by Brooks and sold by him to other parties only one wall to each of their buildings. This was not in contemplation of Brooks at the time he entered into the agreement with Harkey as to the party wall, but this fact argues strongly that Brooks intended at the time he was erecting these buildings that each of the walls between the buildings on the several lots should be party or division walls, and that the twenty-four feet frontage to each lot should be measured from the middle of each wall between the several buildings, and that his purpose in entering into the agreement with Harkey was to establish a party wall, regardless of the ex-' act boundary line between them.
The deed from Harkey to L. C. Hall, which was made an exhibit to the deposition of the cashier of appellee, together with the testimony of the man who erected the wall under the direction of Brooks, the owner, shows clearly, we think, that the wall in controversy was intended by the then owners of the property to be built on the boundary, line between their lots regardless of the true boundary, and was to be a party wall. The deed from Harkey to Hall recites that the former conveys to the latter “also all my right, title and interest in and to a certain brick division wall built by John C. Brooks on the dividing line between said lot 1 and the lot contiguous and north of the said lot 1, said division wall having been built in accordance with the terms and conditions of a certain contract entered into and executed by the said J. C. Brooks and J. M. Harkey on the 3d day of September, 1894.” This deed was on record when the appellant purchased the lot in controversy.
We are of the opinion that the clear preponderance of the evidence shows that the owners of the lots from whom the appellant and the appellee deraign title established the boundary line between lots 1 and 2 and erected the wall in controversy on that boundary line, and that possession was delivered to each of the respective parties under that agreement, and that they and their grantees are bound by such agreement.
Mr. Justice Hart, speaking for this court, in Payne v. McBride, 96 Ark. 168" date_filed="1910-10-24" court="Ark." case_name="Payne v. McBride">96 Ark. 168, quoting from Kitchen v. Chantland, 130 Iowa 618" date_filed="1905-11-20" court="Iowa" case_name="Kitchen v. Chantland">130 Ia. 618, says:
“Where there is doubt or uncertainty or a dispute as to the true location of a boundary line, the parties may by parol fix a line which will, at least when followed by possession with reference to the boundary so fixed, be conclusive upon them, although the possession is not for the full statutory period.” Citing other cases by this court announcing the same doctrine.
In Cutler v. Callison, 72 Ill. 113" date_filed="1874-01-15" court="Ill." case_name="Cutler v. Callison">72 Ill. 113, it is said: “It is a principle well established that the owners of adjoining tracts of land may by parol agreement settle and establish permanently a boundary line between their lands, which, when followed by possession according to the lines .so agreed upon, is binding and conclusive, not only upon them, but their grantees.”
The appellant’s contention that he has been in possession for the statutory period can not be sustained. His possession of the storehouse inclosed by the party wall does not give him possession of the entire wall, but he only had possession of such part of the wall as was conveyed to him by his grantee. The 'owner of adjoining lot No. 1, by virtue of the agreement as to the boundary and party wall, got possession of that part of the wall coming to him under the agreement.
The contention that appellant had no notice of the appellee’s rights, and that he was therefore an innocent purchaser, is not well taken. His own testimony shows that he knew of the existence of facts in regard to the wall that put him on notice and made it his duty to inquire as to the title to that part of the wall next to his lot. His testimony shows that he knew that the wall was constructed in a manner so as to admit an adjoining building to be attached to it. Provision was made for joists and sleepers to be let into the wall, showing that the wall was constructed for the purpose of having the building on the adjoining lot attached to the wall in controversy. Upon inquiry and examination of the records, appellant might have easily ascertained the true condition of the title. He was not therefore an innocent purchaser.
The above discussion is based upon the concession that the wall in controversy was built wholly upon the lot of appellant. We are of the opinion, however, that it is not shown by a clear preponderance of the evidence that such is the fact. The burden in this respect was upon the appellant; and, as we view the testimony, he has failed to establish by a clear preponderance of the testimony that the wall in controversy was built entirely upon lot No. 2. It is by no means clear that the measurements under which he claims were based upon an accurate survey of the lots in question. The testimony, at most, in our opinion, fixes no definite and certain points, established by a survey shown to be correct, from which the measurements were taken. According to the testimony of the cashier of the bank and the points from which he measured, the wall in controversy was at least two inches on the lot owned by the appellee, while, according to some of the other testimony in the record, the wall was entirely on the lot of the appellant. But there was, to say the least, great doubt and uncertainty about it, and, under the circumstances, the agreement between the then owners for the establishment of a boundary line was very appropriate. It is the policy of the law to encourage such agreements and to give them effect when shown to exist. Cavanaugh v. Jackson, 91 Cal. 580" date_filed="1891-10-31" court="Cal." case_name="Cavanaugh v. Jackson">91 Cal. 580; Levy v. Maddox, 81 Tex. 210" date_filed="1891-05-26" court="Tex." case_name="Levy v. Maddox">81 Tex. 210.
The doctrine of estoppel has no application to the facts in this record.
The judgment of the chancery court is correct, and it is affirmed.