71 Ark. 248 | Ark. | 1903
(after stating the facts). This lawsuit arose out of a disagreement between two proprietors of adjoining land concerning the location of the boundary line between their estates. In this dilemma they agreed to settle the matter by establishing the lines of a.survey made by one Laughlin as the correct boundary line between them, except on the front of the tract where one of the proprietors agreed to convey a strip of land to the other so as to give the other access to the public highway. The price to be paid for this strip was to be settled by arbitration. Now, this part of the agreement was executed. Arbitrators determined, the price of the land to be sold, the party owning it conveyed the land specified to the other, and the other paid therefor the price named by the arbitrators.
Nothing remains except the removal of that portion of the boundary fence that did not conform to the line established between them b}r this agreement. If the plaintiff had shown by the evidence that the strip of land for which he sues was within his lines, as established by the agreement referred to, we think the. judgment should be sustained; for, when the boundary line between two estates is indefinite or unascertained, the owners may by parol agreement establish a division line between them which will be binding upon them. This rule is founded on the principle that the effect of the agreement is not to pass real estate from one party to another, but simply to define the boundary line to which their respective deeds extend. 4. Am. & Eng. Enc. Law (2d Ed.) 860, and large number of cases there cited.
So far as we can see, no valid reason is shown why the line, as established by the parties to this action, should not be binding upon them. But the burden of proof was on plaintiff to show that the land for which he sues was within his lines as established by the agreement, and we find in the record no sufficient proof of that fact. There were two witnesses who testified that they were present when the land was surveyed by Laughlin, but they do not say that according to that survey the land in controversy was within the lines of plaintiff’s deed. They testify that the survey showed that a portion of plaintiff’s land was in defendant’s inclosure, but they expressly stated that they could not state how far inside the inclosure the Laughlin line ran. That question was at issue; the burden was on plaintiff; but, as we see the evidence, he has not proved it. For this reason the judgment must be reversed, and a new trial ordered.
See Jordan v. Deaton, 23 Ark. 704. (Rep.)