By the Court, Brown, J.
The court charged the jury upon the trial of this action, “ that an old fence becomes a land mark, and would, if acquiesced in for a length of time, determine the line, even though it should not accord with the true line; but if the owners desire to change it and make it straight, when it [342]*342was crooked, they could do so without a deed in writing. That the title would not pass by a verbal agreement; but if the parties verbally agreed to straighten the line, the party who acted upon such agreement would not be liable to the other in an action of this kind. In such case, his entry upon the lands would not be unauthorized, and the statute of frauds would not apply to the case. That if the jury believed from the evidence that Davis at this time acquiesced in the line, as run by Mitchell and Skidmore, and the defendant had set his fence upon that line, it would be sufficient; that the whole question was one of fact for the jury, and might be thus stated: Did the defendant put his fence upon the line as marked out by Skidmore and Mitchell; and was that done with the plaintiff’s consent.” The jury found a general verdict for the defendant, thus determining the question of fact in his favor; and if the charge contained a true exposition of the law applicable to the case, the verdict must stand; otherwise, it should be set aside. The action was trespass quare clausum fregit, and the answer denied the several tortious acts charged in the complaint, and then set up that the locus in quo was the close, soil, and freehold of the defendant. Ho deeds or other written evidences of title were read by either party upon the trial, 'but it was admitted that the parties were the owners in fee of adjoining lands, separated as appeared by the proof, by an ancient worm fence, the panels. of which rested upon stones where they united with each other. The proof also established that the plaintiff had been in the possession of his farm for thirty-eight years, and for the last thirty years he had occupied, claimed, and cultivated close up to the worm fence which separated the farms, and that the defendant, in pursuance of the parol agreement referred to by the court, had removed the old worm fence and erected a new post and rail fence, eighteen or twenty inches over upon the plaintiff’s enclosure, and beyond the centre of the old fence, for the distance of 583 feet, which constituted the tortious entry and trespass complained of in the action. It also appeared in proof, and does not seem to have been disputed, that while the defendant was employed in the erection of a portion of the new [343]*343fence, he had notice from the plaintiff that he was placing it eighteen inches over upon the plaintiff’s land, to which notice he replied that when he found he was wrong he would remove it.
It is worthy of recollection that the main issue made by the pleadings in the cause, was upon the title to the piece of ground 18 or 20 inches in width, and 583 feet in length, lying between the lines of the old and new fences, and not upon the right of the defendant to enter upon it -under a license from the true owner, for a given purpose. A license seeks to justify the defendant’s entry, not by a claim of title to the locus in quo in hostility to the plaintiff’s right; but it admits his title and pleads his authority and permission, as a justification for whatever may have been done. Chancellor Kent, in his commentaries, (vol. 3, 452,) notices briefly the distinction between interests in lands, which the statute of frauds requires should be in writing, and a license to enter thereon, which may be by parol. The distinction is also given by Chief Justice Parker, in Cook v. Stearns, (11 Mass. Rep. 537,) in language better suited to my present purpose, and I therefore quote it: “A license is technically an authority given to do some one act, or a series of acts on the land of another, without passing any estate in the land. Such as a license to hunt in another’s land, or to cut down a certain number of trees. These are held to be revocable when executory, unless a definite term is fixed, but irrevocable when executed.” “ But licenses, which in their nature amount to the granting of an estate, for ever so short a time, are not good without deed, and are considered as leases and must always be pleaded as such. The distinction is obvious, licenses to do a particular act do not in any degree trench upon the policy of the law which requires that bargains respecting the title or interest in real estate, shall be by deed or in writing. They amount to nothing more than an excuse for the act, which would otherwise be a trespass. But a permanent right to hold another’s land for a particular purpose, and to enter upon it at all times without his consent, is an important interest which ought not to pass without writing, and is the very object provided for by our statute.
[344]*344This sensible and lucid statement of the distinction—which some writers imagine is subtle and difficult to discern—between those interests in, or rights to the enjoyment of land which the statute of frauds requires to be in writing, and a mere license to enter and do a particular act, will serve to illustrate what would'have been the condition of the defendant in this action, had he relied upon the parol license to enter and remove the ancient fence, and erect a new one where it now stands, and what must, inevitably, be the consequence when he pleads liberum tenementum, and claims to hold the premises as his own by a title adverse, and paramount to that of the plaintiff. The instruction given to the jury “ that a title would not pass by a verbal agreement, but if the parties verbally agreed to straighten the line, the party who acted upon such agreement would not be liable to the other in an action of this kind,” would have applied with justice and truth to the acts of the defendant, done before the plaintiff signified his dissent, had the defense rested upon the license. But when the defendant goes beyond that and relies upon the title, he is bound to show that he was the true owner at the time of his entry, or to establish that the parol agreement consummated and carried into effect by such entry, was sufficient in law to transfer the title from the plaintiff to the defendant.
No deeds or other written evidences of title were produced by either party, upon the trial; yet I think the plaintiff’s title, as it appeared, was too clear to admit of any dispute. He was the admitted owner of the farm adjoining the lands of the defendant, the exterior fences of which enclosed the premises in dispute, and his title to these very premises consisted of an occupation within a substantial enclosure, accompanied by a claim of title, and the actual cultivation close up to the old fence for the space of thirty years. Until some five or six years before the trial, no question seems ever to have been raised between the proprietors, in respect to this line. It had been settled and established by the ancient fence ; the parties had claimed up to it, and the plaintiff had certainly cultivated up to it for a-period of time sufficient to bar an entry. It was, therefore, not an [345]*345unknown, uncertain and undefined boundary, for it was recognized by the adjoining cultivation, and marked out by the lasting monument of a substantial fence.
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By the Court, Brown, J.
The court charged the jury upon the trial of this action, “ that an old fence becomes a land mark, and would, if acquiesced in for a length of time, determine the line, even though it should not accord with the true line; but if the owners desire to change it and make it straight, when it [342]*342was crooked, they could do so without a deed in writing. That the title would not pass by a verbal agreement; but if the parties verbally agreed to straighten the line, the party who acted upon such agreement would not be liable to the other in an action of this kind. In such case, his entry upon the lands would not be unauthorized, and the statute of frauds would not apply to the case. That if the jury believed from the evidence that Davis at this time acquiesced in the line, as run by Mitchell and Skidmore, and the defendant had set his fence upon that line, it would be sufficient; that the whole question was one of fact for the jury, and might be thus stated: Did the defendant put his fence upon the line as marked out by Skidmore and Mitchell; and was that done with the plaintiff’s consent.” The jury found a general verdict for the defendant, thus determining the question of fact in his favor; and if the charge contained a true exposition of the law applicable to the case, the verdict must stand; otherwise, it should be set aside. The action was trespass quare clausum fregit, and the answer denied the several tortious acts charged in the complaint, and then set up that the locus in quo was the close, soil, and freehold of the defendant. Ho deeds or other written evidences of title were read by either party upon the trial, 'but it was admitted that the parties were the owners in fee of adjoining lands, separated as appeared by the proof, by an ancient worm fence, the panels. of which rested upon stones where they united with each other. The proof also established that the plaintiff had been in the possession of his farm for thirty-eight years, and for the last thirty years he had occupied, claimed, and cultivated close up to the worm fence which separated the farms, and that the defendant, in pursuance of the parol agreement referred to by the court, had removed the old worm fence and erected a new post and rail fence, eighteen or twenty inches over upon the plaintiff’s enclosure, and beyond the centre of the old fence, for the distance of 583 feet, which constituted the tortious entry and trespass complained of in the action. It also appeared in proof, and does not seem to have been disputed, that while the defendant was employed in the erection of a portion of the new [343]*343fence, he had notice from the plaintiff that he was placing it eighteen inches over upon the plaintiff’s land, to which notice he replied that when he found he was wrong he would remove it.
It is worthy of recollection that the main issue made by the pleadings in the cause, was upon the title to the piece of ground 18 or 20 inches in width, and 583 feet in length, lying between the lines of the old and new fences, and not upon the right of the defendant to enter upon it -under a license from the true owner, for a given purpose. A license seeks to justify the defendant’s entry, not by a claim of title to the locus in quo in hostility to the plaintiff’s right; but it admits his title and pleads his authority and permission, as a justification for whatever may have been done. Chancellor Kent, in his commentaries, (vol. 3, 452,) notices briefly the distinction between interests in lands, which the statute of frauds requires should be in writing, and a license to enter thereon, which may be by parol. The distinction is also given by Chief Justice Parker, in Cook v. Stearns, (11 Mass. Rep. 537,) in language better suited to my present purpose, and I therefore quote it: “A license is technically an authority given to do some one act, or a series of acts on the land of another, without passing any estate in the land. Such as a license to hunt in another’s land, or to cut down a certain number of trees. These are held to be revocable when executory, unless a definite term is fixed, but irrevocable when executed.” “ But licenses, which in their nature amount to the granting of an estate, for ever so short a time, are not good without deed, and are considered as leases and must always be pleaded as such. The distinction is obvious, licenses to do a particular act do not in any degree trench upon the policy of the law which requires that bargains respecting the title or interest in real estate, shall be by deed or in writing. They amount to nothing more than an excuse for the act, which would otherwise be a trespass. But a permanent right to hold another’s land for a particular purpose, and to enter upon it at all times without his consent, is an important interest which ought not to pass without writing, and is the very object provided for by our statute.
[344]*344This sensible and lucid statement of the distinction—which some writers imagine is subtle and difficult to discern—between those interests in, or rights to the enjoyment of land which the statute of frauds requires to be in writing, and a mere license to enter and do a particular act, will serve to illustrate what would'have been the condition of the defendant in this action, had he relied upon the parol license to enter and remove the ancient fence, and erect a new one where it now stands, and what must, inevitably, be the consequence when he pleads liberum tenementum, and claims to hold the premises as his own by a title adverse, and paramount to that of the plaintiff. The instruction given to the jury “ that a title would not pass by a verbal agreement, but if the parties verbally agreed to straighten the line, the party who acted upon such agreement would not be liable to the other in an action of this kind,” would have applied with justice and truth to the acts of the defendant, done before the plaintiff signified his dissent, had the defense rested upon the license. But when the defendant goes beyond that and relies upon the title, he is bound to show that he was the true owner at the time of his entry, or to establish that the parol agreement consummated and carried into effect by such entry, was sufficient in law to transfer the title from the plaintiff to the defendant.
No deeds or other written evidences of title were produced by either party, upon the trial; yet I think the plaintiff’s title, as it appeared, was too clear to admit of any dispute. He was the admitted owner of the farm adjoining the lands of the defendant, the exterior fences of which enclosed the premises in dispute, and his title to these very premises consisted of an occupation within a substantial enclosure, accompanied by a claim of title, and the actual cultivation close up to the old fence for the space of thirty years. Until some five or six years before the trial, no question seems ever to have been raised between the proprietors, in respect to this line. It had been settled and established by the ancient fence ; the parties had claimed up to it, and the plaintiff had certainly cultivated up to it for a-period of time sufficient to bar an entry. It was, therefore, not an [345]*345unknown, uncertain and undefined boundary, for it was recognized by the adjoining cultivation, and marked out by the lasting monument of a substantial fence. The parties in their conversations with each other, admitted—it is true—and the witnesses understood that the line was originally a straight line, and they spoke of making it a straight line ; but these conversations and verbal admissions can not overcome the legal effect of the plaintiff’s occupation, claim of title, and cultivation for so great a length of time, or operate to divest him of the rights he acquired thereby. (Jackson v. Ogden, 7 John. 238. Rockwell v. Adams, 7 Cowen, 761. Rockwell v. Adams, 6 Wend. 467.) At the time the defendant put the new fence upon the line marked out by Skidmore and Mitchell, the plaintiff must be regarded as the true owner of the lands in dispute; and the question now is, whether the parol agreement mentioned by the witnesses and referred to by the court, the effect of which is to transfer from the plaintiff to the defendant the title to the piece of land, 18 or 20 inches in breadth, lying between the lines of the new fence and of the old one, is such as the law will recognize and uphold.
Disputed lines and indefinite and uncertain boundaries are incidents which attend upon the titles to land whenever it is appropriated to private use, and becomes the subject of private property. They have their origin in the impossibility of measuring out large tracts of wild uncultivated land with mathematical precision; in the inattention and indifference of the first settlers; in the errors unavoidably made in the original surveys ; in the practice—not unfrequent—of marking out and locating lots upon paper, and making grants without running the lines or measuring the ground; and in the decay and destruction of marked trees and other monuments. They become, in process of time, fruitful sources of legal controversies, perplexed with so much doubt and uncertainty that neither the learning and experience of the judges, nor the intelligence and good sense of juries, are in all cases, a guaranty that they will be adjusted upon the basis of truth and right. Hence, amongst other reasons, we have the rule to which the courts [346]*346have constantly adhered, that an actual location of a division line between the adjoining lands of different proprietors, however erroneous, shall control the courses and distances in the title deeds, when acquiesced in for a length of time sufficient to bar an entry. Agreements made in respect to disputed boundary lines are not within the statute of frauds, because they can not be considered as extending to the title; nor do they have the operation of a conveyance, so as to pass the title from one to another. The object is not to pass the estate, or to make a conveyance and transfer to A., of lands which belong to B: but such agreements proceed upon the fact that the true line of separation is not only fairly and truly in dispute, but that it is also to some extent undefined and unknown. They recognize and confirm the title of both the contracting parties to the lands, of which they are respectively the real owners, and seek only to distinguish and place beyond the reach of future doubt, the true line of separation between them. To bring an agreement in respect to lands within the operation of the statute of frauds, it must, in effect, create, grant, assign, surrender or declare some interest or estate in lands, other than a lease for the term of one year; and whenever it is designed to have this effect, it must be in writing and be subscribed by the party granting or creating such estate or interest, or it is absolutely void. It has been repeatedly held, that a parol agreement to ascertain and establish a boundary line between the owners of adjoining lands, which is in dispute, and in some degree unknown and undefined, either directly by the parties themselves, or through the medium of a submission to the award of others, is not an agreement which extends to the title, and therefore not within the provisions of the statute of frauds. As has been justly said, “it has no bearing whatever upon the abstract question of title, no more than the testimony of a witness showing the practical location of a deed according to its courses and distances.” (Sellick and Sellick v. Addams, 15 John. 197. Jackson v. Gager, 5 Cowen, 383. Robertson v. McNiel, 12 Wend. 578, 583.) But where the line is already well known and established; where it has been recognized and acquiesced [347]*347in by the adjoining owners; and more especially where it is indicated and marked out by fences or other permanent monuments to which they have claimed and occupied for a sufficient length of time to bar an entry, a parol agreement, to change it, differs entirely in its effect from that to which I have before referred, and does extend to the title. Its operation is not confined to the settlement of a dispute, or the removal of a substantial ground of controversy; to locate and mark out a boundary line, and thus make positive and certain for all future time that which before was vague and indefinite ; but if it could operate at all, it manifestly must be to grant, assign, or surrender to one or to both the contracting parties, an interest or estate in lands to which, at the time of making the agreement, he or they, as the case might be, had no title or claim whatever. That they have no other object than to obtain a better or a more convenient boundary, and that each will receive a fair equivalent for all that he gives away, can not affect the legal aspect of the question. The law, for wise and just purposes, prescribes certain forms and solemnities to be observed in passing an interest or estate in lands; and pays no regard whatever to the motives of those who may become parties to the conveyance, or to the extent of territory to be affected thereby. These forms and solemnities must be observed, or the legal estate will remain precisely as if nothing whatever had been done. Equity, it is true, will enforce the performance of a parol agreement for the salé of lands, against a vendee who has been put into possession, or against a vendor who has been paid and received the purchase money, upon the ground that “ where one party has executed his part of the agreement, in the confidence that the other party would do the same, it is obvious that if the latter should refuse, it would be a fraud upon the former to suffer this refusal to work to his prejudice.” (2 Story’s Eq. Jur. 70, § 759.) And a case might very well occur where the equitable power of this court might be successfully invoked to enforce and maintain a parol contract to straighten a crooked boundary line, by an exchange of the lands necessary to effect that object, where the parties mutually obtained an equivalent for the [348]*348lands surrendered, and the contract had been executed by the delivery of the possession. In the present case, as I read the testimony, the plaintiff receives no consideration or equivalent for the lands upon which the defendant has entered; and so far from having put the defendant in possession and executed the agreement, he signified his dissent as far as he could at the time the defendant was in the act of erecting the fence.
The plaintiff’s title to the locus in quo was established by the evidence upon the trial, and he was, therefore, in my judgment, entitled to a verdict in his favor. I also think the learned justice erred when he charged the jury that the statute of frauds did not apply, and that “if the parties verbally agreed to straighten the line, the party who acted upon such agreement would not be liable to the other in an action of this kind.
There should be a new trial, with costs to abide the event.
Morse, J. concurred.
McCoun,'J. dissented.
New trial granted.