It will be remembered that the survey of the Boggs tract was made after the execution and delivery of the Harrison deed. By the delivery of that deed Harrison acquired rights which could not be varied or annulled by any agreement between Boggs and Vallejo. His deed called for the Boggs tract as his northern boundary. What Boggs tract? The tract described in the deed; not any other tract which might be agreed upon by way of compromise between Boggs and Vallejo. It will be remarked that Harrison was not present at the survey, nor is it pretended that he ever agreed to or knew of the arrangement between Boggs and Vallejo.
Harrison was entitled to have the survey made according to the calls of the Boggs deed, for thus it became a feasible thing. We contend in the first place, that the survey was thus practically made on the ground. Second, if not so made, that the starting point being ascertained, the survey therefrom extended shows that the defendant has twenty-four acres of that land in possession; and even admitting that a variety of surveys may be made legitimately from the ascertained startingpoint, still, where there may be a difference of construction or application, we have the right to the election. (Jackson v. Hudson, 3 J. R. 374; Saun v. Blodgett, 16 J. R. 172; see, also, to the prior points suggested: Luce v. Carley, 24 Wend. 451; Jackson v. Wendell, 5 Wend. 142; Bates v. Tymason, 13 Wend. 300.)
JUDGES: Rhodes, J.
OPINION
RHODES, Judge
By the Court, Rhodes, J., on petition for rehearing.
The respondent, in his petition for a rehearing, suggests that we have mistaken the evidence in several points, but we have carefully examined the record, and we think we correctly understand the facts of the case. Facts are stated, in the opinion of the Court, solely that the course of reasoning adopted by the Court, and the principles enunciated, may be the better understood. The Court does not assume to find the facts in a case, for it has no authority to do so, except in case where an ultimate fact results, as a conclusion of law, from the proof of certain prior facts. If this Court states the evidence in a cause, whether correctly or incorrectly, the statement in no manner controls the Court below, and cannot prejudice the parties, where a new trial is had. It is upon questions of law, that the decision of the appellate Court becomes the law of the case, and not upon questions of fact.
We are of the opinion, from the evidence in the record, that the act of Vallejo and Governor Boggs, in the absence of Harrison, in fixing upon the initial point, did not and could not affect the location of the Harrison tract, and we are further of the opinion that, as a fact in the case, the Ide survey, as made and marked on the land, was inconsistent with the first intention of the parties, in taking the tree as the initial point, and, in effect, removed the initial point to a position north of the tree.
But it is immaterial where they fixed the initial point, for the northern line of the Harrison tract coincided with the southern line of the Boggs tract, as it must be ascertained and run, according to the deed, without regard to how Boggs and Vallejo may have run it. After the initial point is established, a line one half mile in length must be run therefrom, south, to find the southwest corner of the Boggs tract, and the southern line must run from that corner, at right angles with the western line, as described in Boggs' deed from Vallejo. If the parties owning the land on both sides of the true line, have established another line, by a valid agreement, or by an acquiescence, such as we have before indicated, that line will govern the parties and their vendees.
The respondent objects that the facts relating to the acquiescence in the lines of the ten acre tract cannot be considered in this case, because those acts, if amounting to anything, create an equitable estoppel, and the appellant has failed to plead the estoppel.
The objection would be well taken, if it is a correct principle of law, that the parcel of land, cut off from the lands of the coterminous proprietor, by the division line established by long acquiescence of the two parties, is held by an equitable title. The Courts often say that it would be inequitable for the parties, after such long acquiescence in a partition line, to set up another, as the true line, according to the calls of their respective deeds--that they are estopped from making such proof; but it is not meant thereby that either party holds by an equitable title, or that title accrued to him by estoppel. It is said in other cases that after a long acquiescence in a division line, varying from the true line, the Court is authorized to presume a grant of the excess, (see Adams v. Rockwell, 16 Wend. 285,) but it is unnecessary to presume anything more than an agreement upon the division line, for the one party does not purport or attempt to sell or convey to the other any land; nor does the other set up any right under a purchase or conveyance of the legal or equitable title, made at the establishment of the division line. The division line when thus established, attaches itself to the deeds of the respective parties, and simply defines, not adds to, the lands described in each deed, in accordance with the understanding of the parties, who are presumed to know best their lands; and if by a mistake of the parties, one deed is in that manner made to include more than the calls of the deed would actually require, the grantee of the deed holds the excess by the same tenure that he holds the main body of his lands. This principle is well expressed by Judge Ryland in Blair v. Smith , 16 Mo. 273. He says: " We consider this case thus: Two owners of contiguous lots or tracts of land, each having his deed for his lot or tract, agree with the other: We fix this mark on the earth's surface as the line called for in my deed; this mark as the line called for in your deed; here is the line between us. My land mentioned in my deed comes up to this mark, or this fence, or this wall, on this side, and your land comes to the same on that side. * * Such boundary thus agreed upon shall be considered the true one, and each one considered as the owner of the land mentioned in his deed, thus marked out to that boundary between them." In Jackson v. Ogden, 4 Johns. 142, Mr. Justice Spencer, in speaking of the acts of one of the lessors of the plaintiff, says: " It is not, however, to be controverted that parties whose rights to real property may be perfect, and the boundaries of which may be susceptible of certain and precise ascertainment, may by their acts conclude themselves by establishing other and different boundaries."
The same doctrine is announced in several of the cases cited in the opinion delivered in this case. In Boyd's Lessee v. Graves, 4 Wheat. 413, it is said, in commenting upon the fact that a dividing line had been run by a surveyor, by agreement of the parties, more than twenty years previous to the commencement of the action, that the agreement was not a contract for the sale or conveyance of lands and had no ingredient of such a contract. In the Courts of Pennsylvania it is held that " adjoining owners who adjust their partition line by parol, do not create or convey any estate whatever between themselves; no such thought or intention influences their conduct; after their boundary is fixed by consent, they hold up to it by virtue of their title deeds, and not by virtue of a parol transfer." (Hagey v. Detweiler, 35 Penn. 409; Perkins v. Gay, 3 Serg. and Rawle, 331.)
The party holding land, dependent on a division line established between contiguous owners, by their acquiescence for a space of time equal to the time prescribed by the Statute of Limitations, as a bar to an action for the recovery of the possession of real property, holds it by legal title.