Kip v. Norton

12 Wend. 127

Opinion

By the Court,

Savage, Ch. J.

The only question, as it seems to me, is whether the plaintiff has so assented to the location of No. 9 as to be bound by it. Such an assent must be either expressed or implied. If there is a disputed line between two adjoining proprietors of land, it may be settled between them by a location made by both, or made by one and acquiesced in by the other for so long a time as to be evidence of an agreement to the line. There can be no doubt that an express parol agreement to settle a disputed or unsettled line is valid if executed immediately, and possession accompanies and follows such agreement. This was expressly adjudged in Jackson v. Dysling, 2 Caines, 198. Not that the title to the land passes by the parol agreement, but the party making the agreement is not permitted to bring an action in violation of it; the agreement does not pass the title, but fixes the location where the estate of each is supposed to exist. So also where there has been no express agreement, long acquiescence by one in the line assumed by the other is evidence of an agreement. All the cases cited agree in these positions. It is not pretended, in this case, that any express agreement was entered into between the parties. Each located for himself, under the direction of the agent of their common grantors, who acted under a mistake as to the true location. The plaintiff is not bound, therefore, by an express settlement of the line ; and the acquiescence being only four or five years, is not sufficient evidence of an agreement to conclude him. The plaintiff is entitled to judgment.