| Ill. | Nov 1, 1897
delivered the opinion of the court:
The only grounds urged for a reversal of this judgment are, that the verdict is against the law and the evidence, and that the court erred in refusing to give an instruction asked by the plaintiff relating to the burden of proof.
The evidence showed that Mitchell, Ward and Marks, joint owners of what was called the “Webster farm,” agreed in 1879 upon a division of it among them and that the division lines should be determined by a survey. Marks, who was to get the east tract of two hundred acres, was not present at the survey, but he had authorized Mitchell and Ward to have the survey made. There was a conflict of evidence upon the trial whether in the survey which was made in pursuance of the agreement, the surveyor, Gray, ran any line north and south between the Marks and Ward tracts. He died several years before the trial, but his son testified that he was present and assisted at the survey, and that they ran only one north and south line, and that was between the tracts assigned to Ward and Mitchell; that no line was run between the tracts of Ward and Marks. Ward, on the other hand, testified that he was present and that Gray did run and establish the line between his tract and Mark’s tract. Gray’s field notes, accompanied by his plat of the survey made at the time, were given in evidence by the plaintiff. These notes do not show that any more than one line was run north and south, and that was between the Mitchell and Ward tracts. They show that a stake was driven on the north line of the farm twenty-five chains west of its east line, where the first north and south line should have terminated at the north, but do not show that any such line was established or that the south end thereof was located by the surveyor. The plat, however, as drawn by the surveyor, does show this line. The evidence on the part of the defendants tended to show, also, that by agreement among Mitchell, Ward and Marks a division fence was built, and, as claimed by defendants, on this line of Gray’s survey, as the division line between the tracts of Marks and Ward, Mitchell representing Marks, by the latter’s authority, in the location and construction of the fence, and that Marks paid his proportion of the cost. This fence has ever since remained on the same line and has been kept up as a division fence by the owners of the two tracts. But whether this division line was established by the surveyor or not, it was a question for the jury to find, from the evidence, whether or not it had been agreed upon among the owners of the two tracts as the dividing line between them, and whether or not, in pursuance of such agreement, they entered into and retained possession each of his own tract as.bounded at that line by this fence.
It has been held in many cases that where owners of adjoining lands agree upon the dividing line, take and hold possession of their respective tracts and improve the same in accordance with such division, each party will be estopped from afterwards asserting that the line so agreed upon is not the true line, although a sufficient time has not elapsed to raise the bar of the Statute of Limitations. Bauer v. Gottmanhausen, 65 Ill. 499" date_filed="1872-09-15" court="Ill." case_name="Bauer v. Gottmanhausen">65 Ill. 499; Smith v. Hamilton, 20 Mich. 433" date_filed="1870-05-13" court="Mich." case_name="Smith v. Hamilton">20 Mich. 433; Crowell v. Maughs, 2 Gilm. 419; Grim v. Murphy, 110 Ill. 271" date_filed="1884-06-13" court="Ill." case_name="Grim v. Murphy">110 Ill. 271; Cutler v. Callison, 72 id. 113; Yates v. Shaw, 24 id. 368; City of Bloomington v. Cemetery Ass. 126 id. 221; Sheets v. Sweeney, 136 id. 336; Mullaney v. Duffy, 145 id. 559; Berghoefer v. Frazier, 150 id. 577.
In the case at bar the court instructed the jury that mere acquiescence in the location of this alleged division line was not sufficient to establish it as the division line, but that the preponderance of the evidence must show that such line was agreed upon by the then owners of the land, and that they and their successors occupied according to it and acquiesced in it as such division line. While there is room for argument upon the question of fact as to whether or not there was such alleged agreement, we cannot say that the jury were not authorized to find as they did, and we cannot see that they were misled to the prejudice of the plaintiff by the instructions.
An instruction was asked by plaintiff, which among other things would have told the jury that the burden of proof was on the defendants to show that Marks agreed that the fence built between bis and Ward’s tracts should be considered as the true line. This was a correct proposition of law, but it was in substance contained in the instructions given.
The judgment of the circuit court will be affirmed.
Judgment affirmed.