This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
The questions most frequently arising in connection with the subject of the boundaries of land involve their ascertainment with reference to a description in a particular conveyance; that is, the determination of the exact limits of the tract conveyed. These questions will be discussed in a subsequent part of the work in connection with conveyances of land.52 The question whether the government or the littoral or riparian proprietor is the owner of land under water is frequently discussed as a matter of boundary, but it has seemed preferable to treat it separately as a question whether the ownership of the submerged land is prima facie incident to the ownership of the littoral or riparian land.53
There is, apart from statute, no proceeding at law by which one owner of land can obtain an adjudication as to the proper location of a boundary line, as between him and the adjoining owner, though he has a remedy by trespass or ejectment for disregard of the proper line by the latter.54
A court of equity will, in some cases, issue a commission for the determination of a boundary line, but this will not be done unless there is sonic ground for
50. Ante S 198. notes 28, 29 .
51. See Elwell v. Burnside, 44 Barb. (N. Y.) 417; Darden v.
Cowper, 7 Jones L. (N. C.) 210, 75 Am. Dec. 461; Gulf Red Cedar Co. v. Crenshaw, 188 Ala. 606, 65
52. Post Sec.Sec. 441-447.
53. Post Sec.Sec. 30O-3O3.
54. Leake, Prop, in Land, 10; Sedgwick & Wait, Trial of Title to Land Sec. 865.
Sec. 293] is not doubtful or in dispute, an oral agreement for its change is invalid, this involving an actual transfer of land, within the statute.61 Why the agreement, to be effective as locating the line, must be followed by posses-sion in accordance therewith, in order to be outside of the scope of the statute, does not appear from the decisions, but presumably the underlying idea is that the taking of possession constitutes part performance taking the case out of the Statute of Frauds. According to some eases, the oral agreement is sufficient without reference to the question of possession thereunder.62 In order that an agreement between adjoining owners, locating their common boundary line, be valid, it is in some states at least, necessary, not only that, as above stated, the true line be uncertain or in dispute, but also that the agreement be by way of com61. Wells v. Bently, 87 Ark. 625, 113 S. W. 639; Schwab v. Donovan, 165 Cal. 360, 132 Pac. 447; Watrous v. Morrison, 33 Fla 261, 39 Am. St. Rep. 139, 14 So. 805; Gayheart v. Cornett, 19 Ky. L. Rep. 1052, 42 S. W. 730; Olin v. Henderson, 120 Mich. 149, 79 N. W. 149; Alt v. Butz, 81 N. J. L. 156, 79 Atl. 881; Vosburgh v. Teator, 32 N. Y. 561; Lennox v. Hendricks, 11 Ore. 33, 4 Pac. 515; Newton v. Smith, 40 Pa. Super. Ct. 615; Nichols v. Lytle's Lessee, 4 Yerg. (Tenn.) 456, 26 Am. Dec. 240; Rydalch v. Anderson, 37 Utah 99, 107 Pac. 25; George v. Collins, 72 W. Va. 25, 77 S. E. 356; Duel v. Bluembke, 154 Wis. 519, 143 N. W. 179.
Rights of Enjoyment.
In many of the states, jurisdiction is expressly given by statute to particular courts to ascertain and establish boundary lines which are uncertain or in dispute, by means of officials to be named, frequently called "procession," who, after investigating the question of the boundary, report thereon to the court, which may or may not approve their finding.59
55. Wake v. Conyers, 1 Eden 331, 2 White & T. Lead. Cas. Eq. 850; Miller v. Warmington, 1 Jac. & W 492; Wetherbee v. Dunn, 36 Cal. 249; Perry v. Pratt, 31 Conn. 433; Doggett v. Hart, 5 Fla. 215. 58 Am. Dec. 464; Boone v. Robinson, 151 Ky. 715, 152 S. W. 753; Cullen v. Ksiaszkiewicz, 154 Mich. 627, 118 N. W. 496; De Veney v. Gallagher, 20 N. J. Eq. 33; Davis v. Tremain, 205 N. Y. 236, 98 N. E. 383; Hough v. Martin, 22 N. C. 379, 34 Am. Dec. 403; Wolfe v. Scarborough, 2 Ohio Ft. 361; No-ian v. Cook, 81 Ore. 472, 158 Pac. 8l0; Norris' Appeal, 64 Pa. St. 275; Watkins v. Childs, 80 Vt. 99, 11 Ann. Cas. 1123, 66 Atl. 805; Stuarts' Heirs v. Coalter, 4-Rand. (Va.) 74, 15 Am. Dec. 731, note; Cresap v. Kemble, 26 W. Va 603. 56. Wake v. Conyers, 1 Eden, 331, 2 White & T. Lead. Cas. Eq. 850; Bute v. Glamorganshire
Canal Co., 1 Phillips 681; Boone v. Robinson, 151 Ky. 715, 152 S. W. 753; Reinecke v. Reinecke, 105 Miss. 798, 63 So. 215; De Veney v. Gallagher, 20 X. J. Eq. 33; Boyd v. Dowie, 65 Barb. (N Y.) 237; Culver v. Lodgers, 33 Ohio St. 537. See Goff v. Goff, 78 W. Va. 423, 89 S. E. 9.
57. Atty. Gen. v. Fullerton, 2 Ves. & B. 264; Spike v. Harding, 7 Ch. D. 871.
58. Guice v. Barr, 130 Ala. 570, 30 So. 563; Fraley v. Petars, 12 Bush. (Ky.) 469; Le Comte v. Freshwater, 56 W. Va. 336, 49 S. E. 238; Watkins v. Childs, 80 Vt. 99, 66 Atl. 805.
59. See Amos v. Parker, 88 Ga. 754, 16 S. E. 200; Atkins v. Huston. 106 111. 492; Wekamp v. Jun-gers, 150 Iowa. 2!::'. 129 N. W. 953; Johnson v. Norton, 3 B. Mon. (Ky.) 429; Porter v. Durham, 90 N. C. 55; Love v. .Morrill, 19 Ore.